224 Mo. 393 | Mo. | 1909
This is an original proceeding instituted in this court by relators by writ of certiorari, in which the record made by the county court of Char-iton county in the organization of Drainage District No. 4, as well as the law under which it was organized, being article IY, chapter 122, Revised Statutes 1899, and the amendatory acts thereto, are challenged.
The relators contend that the petition, bond, all the orders of the county court, reports of the viewers, published notices, and everything else that was done in the organization of said district were erroneous and void, because not complying wth the statutes; and also because said statutes violate both the State and Federal Constitution in many particulars.
In view of these numerous and sweeping contentions made by relators, and because of the great importance of this case to the respondents and to the entire people of the State, it will be necessary and it becomes our duty to set out the various records showing the various steps taken by the court and the parties interested in the premises.
The petition in said cause, as appears by the return, was filed in the county court of Chariton county on May 2nd, 1904, and it reads as follows (formal parts omitted):
“We, your petitioners, resident freeholders in said Chariton county and each owning swamp and overflow lands adjacent to the Chariton river, believe that it would be conducive to the public health, convenience or welfare and of public utility or benefit, to cause said Chariton river in said Chariton county, Missouri, to be so constructed, straightened, widened, altered or deepened, so as to prevent the frequent overflows of said river and the great damage to lands adjacent thereto. We believe if said river was*416 straightened that from fifty to sixty thousand acres of valuable lands, now practically useless, can he made very productive and the taxable value of said lands he greatly increased. We believe that the course of the river can be shortened and confined within a distance of thirty-five miles or less in Chariton county, whereas it now covers a distance of nearly three hundred miles in said county. It is our opinion that the starting point of the proposed improvement should be at the Macon county line where said river crosses the county line, to-wit, about the center of the east line of section 9, township 56, range 16, Chariton county, Missouri, and follow the present bed of said river as near as practical until it reaches the Missouri river near the southeast part of the northeast quarter of section 21, township 52, range 18, Chariton county, Missouri, which said course is more particularly described by a survey thereof and plat here’with filed and marked Exhibit ‘A.’ It is our desire to issue bonds to pay the expenses thereof. We therefore pray your honorable body to appoint three resident freeholders of said Chariton county who are not interested in said work and not of kin to any persons interested therein, as viewers, together with a competent engineer to assist them, as provided by section 8280', Revised Statutes 1899', to view the premises along and adjacent to the line of the proposed improvement as hereinabove set forth and report to this court whether the proposed improvement is necessary and practicable, and whether it will be conducive to the public health, and of public, benefit and utility, and the best route that could be selected for such improvement and whether the work of constructing such improvement should be by allotment to the several interests or by contract without allotment, as provided by said section. And in duty bound your petitioners will ever pray.”
This petition was signed by Theo. Doerrie and about one hundred and twenty-five other landowners,
On. May 2, 1904, the petitioners filed in said court the follo'wing bond:
“We, the undersigned, residents of Chariton county, Missouri, acknowledge ourselves to owe and be indebted to the State of Missouri, in the sum of two thousand dollars, for the payment of which well and truly to be made we bind ourselves, heirs, executors, administrators and assigns firmly by these presents, to be void, however, on the following condition :
“That if the petition now being presented to the county court of Chariton county by Theodore Doerrie, Peter Vitt et al., praying for the straightening and improving of the Chariton river in Chariton county, Missouri, as provided in said petition, shall be denied or the proceedings be for any cause dismissed and the petitioners shall pay all costs of the proceedings under such petition, then this bond to be void, otherwise to remain in full force and effect.
“Given under our hands and seals this February -, 1904.”
Then follow the signatures of all those who signed said petition, including said Shire and Kar-cher.
Whereupon said county court at its May term, on the second day of May, 1904, made the following preliminary order of record:
“Theodore Doerrie [and 124 others, petitioners named in said order], landowners of Chariton county, Missouri, this day present to the court here their petition as required by section number 82791 of article 4, chapter 122, Revised Statutes of the State of Missouri, 1899, entitled ‘Drainage of Swamp and Overflowed Land,’ asking the court to cause to be con*418 structed, straightened, widened, altered or deepened the Chariton river in said" Chariton county, Missouri, so as to prevent the frequent overflow of said' river and the great damage to lands adjacent thereto, commencing at a point at the Macon county line where said river crosses the county line, to-wit, about the center of the east line of section 9, township 56, range 16, Chariton county, Missouri, and follow the present bed of said river as near as practicable until it reaches the Missouri river near the southeast part of the northeast quarter of section 21, township 52, range 18, Chariton county, Missouri, the line of which proposed ditch or improvement is more particularly and definitely described by profile and plat accompanying said petition marked ‘Exhibit A’ on file in this office.
“The said petitioners also present their bond in the sum of two .thousand dollars, with Thomas Kar-cher and Eli Shire as securities, conditioned and payable as the law directs, which is examined, approved and ordered filed.
“It is therefore ordered by the court that Joseph A. Hooper, John Bayne and E. M. Williams, three resident freeholders of said county, who are not interested in the construction of said works and who are not kin to any person interested therein be and they are hereby appointed as viewers, and that Thomas O'. Stanley be and he is hereby appointed as a civil engineer to assist them.
“And it is further ordered by the court that said viewers and civil engineers meet in the city of Salisbury, Missouri, on Tuesday, the 24th day of May, 1904, and proceed to view the line of said proposed ditch or improvement and report by actual view of the premises along and adjacent thereto whether the proposed improvement is necessary, practicable or will be conducive to the public health, convenience or welfare, and report the best route for the proposed drain,- whether*419 any portion of the same should he covered and whether the wort of constructing the same should be by allotment, to the several interests or he let by contract without allotment, which report shall be in writing and made to this court on the first day of July, A. D. 1904.
“And it is further ordered by the court that the notice required in section number 8281 of article 4, chapter 122, of Revised Statutes of Missouri 1899, he published in the Salisbury Press Spectator, a newspaper published in said county.
“And it is further ordered by the court that C; C. Hammond and J. A. Collett be and they are hereby appointed attorneys for this court in said cause.”
Afterwards, on the 1st day of July, 1904, proof of publication was filed in said county court as follows :
“Proof of Publication of Notice.
“Whereas, Theo. Doerrie [then follow the names of all of the person's who signed the petition filed in the cause], having filed their petition in the county court of Chariton county, Missouri, asking said court to make the necessary order and cause to be constructed, straightened, widened!, altered or deepened the Chariton river in said Chariton county, Missouri, so as to prevent the frequent overflow of said river and the great damage to land adjacent thereto, commencing at a point at the Macon county line where said river crosses the county line, to-wit, about the center of the east line of section nine, township fifty-sis, range sixteen, Chariton county, Missouri, following the present river bed of the said river as near as practicable until it reaches the Missouri river near the southeast part of the northeast quarter of section twenty-one, township fifty-two, range, eighteen, Chariton county, Missouri, the line of the proposed ditch or improvement is more particularly and definitely described by profile and plat accompanying said petition,*420 marked ‘Exhibit A’ and on file in this office. [The dimensions of which exhibit were snch as to prevent its being here copied.]
“And, whereas, the said county court has appointed J. A. Hooper, John Bayne and E. M. Williams as viewers and T. 0. Stanley as civil engineer to assist them.
“Now, therefore, notice is hereby given that said petition is pending in said county court, and that said viewers will report to this court on the first day of this court to be begun and holden on the first day of July, A. D. 1904.
“In testimony whereof I, H. H. Miller, Clerk of the County Court of Chariton county, Missouri, have hereunto set my hand, affixed the seal of said court at office in the city of Keytesville, Missouri, this 17th day of May, A. B. 1904.
“H. H. Miller,
“Clerk County Court.”
publisher’s appidavit.
“I, the undersigned, one of the publishers and proprietors of the Press Spectator, a newspaper published in the city of Salisbury, county of Chariton, State of Missouri, do hereby certify that the annexed advertisement was published in said newspaper for one consecutive week of the following dates and numbers:
“May 20th, 1904, No.
190 No.
190 No.
190 No.
190 No.
“ J. L. RitzeNthaler, Publisher.
“Subscribed and sworn to before me a notary public, in and for Chariton.county, Missouri, this 30th day of June, 1904.
*421 “Qualified., 190 . Commission expires Jan’y 5tli, 1906. -
“(Seal.) C. C. Hammond,
“Notary Public for Chariton County, Mo.”
Which proof of publication bears the following file mark: “Filed July 1st, 1904, H. H. Miller, County Clerk. ’ ’
On the 1st day of July, A. D. 1904, the viewers theretofore appointed by the court filed the following affidavit (formal parts omitted):
“We the undersigned viewers, and engineer, having heretofore been appointed by the county court of Chariton county, Missouri, to view the proposed change of the Chariton river in Chariton county as contemplated by the petition of Peter Vitt, Theo. Doerrie et al., now on file in the office of the county clerk of Chariton county, Missouri, being sworn on our oaths, say that we will faithfully and impartially discharge our duties as such viewers and engineer, and that we will make a true and correct report of the work done by us to the best of our knowledge and belief.”
On said 1st day of July, A. D. 1904, the said John Bayne, E. M. Williams and J. A. Hooper, viewers, and Thomas Stanley, civil engineer, filed in said county court their report, and an itemized bill of costs, which report is as follows (formal parts omitted):
“In the matter of straightening, widening, altering or deepening the Chariton river and establishing a drainage district in connection therewith as provided by the petition of Theo. Doerrie, Peter Yitt et ah, now on file in the office of the county clerk of Chariton county, Missouri.
“We, the undersigned viewers, resident freeholders of said county, not interested in the construction of said works and not of kin to any person interested therein, also the undersigned civil engineer, having heretofore been appointed by said county court to view*422 the line of the proposed ditch, or improvement, submit the following report:
“We met as directed by order of said court, and after having been qualified by taking oath to faithfully and impartially discharge our. duties as such viewers and engineer and to make a true and correct report of work done by us, we proceeded to view the line of the proposed improvement and actually viewed the premises along and adjacent thereto.
“We find the said improvement as proposed! in the petition and order of said court, is necessary, practicable and will be conducive to the public health, convenience or welfare, and we report the following described route, as the best line for said proposed drain or improvement:
“Commence about the center of the east line of section nine, township fifty-six, range sixteen, Chari-ton county, Missouri, and follow the present bed of said river as near as practicable until it reaches the Missouri river, near the southeast part of the northeast quarter of section twenty-one, township fifty-two, range eighteen, Chariton county, Missouri, the line of which proposed ditch, or improvement, is more particularly and definitely described by profile and plat now on file at the office of the clerk of the county court of Chariton county, Missouri, which said profile and plat was made by the undersigned engineer.
“We further report that the entire distance as described in said profile and plat as aforesaid, should be covered and that the work should be let by contract in at least three separate sections, to begin at the north end thereof and end at the south end, and that the ditches and drain so constructed shall be opened.
“And we recommend that the same be established. ’ ’
Consideration of said report was continued by the county court from time to time until the 23rd of July, 1904, on which day by an order of record said report
“It is ordered by the court that the report of John Bayne, E. M. Williams and Joseph A. Hooper, viewers, and Thomas 0. Stanley, civil engineer, heretofore filed on the first day of July, 1904, be approved.
“And the court doth order the construction of the work as prayed for by the petitioners in accordance with said report and doth name and designate the district affected hv said proposed improvement as Drainage District No. Four of Chariton county, Missouri.
“And it is further ordered by the court that the said John Bayne, E. M. Williams and Joseph A. Hooper, viewers, and the said Thomas O. Stanley, civil engineer, go upon the line of said proposed ditch, to-wit, beginning at a point where the Chariton river enters Chariton county, Missouri, near the center of the east line of section nine, township fifty-sis, range sixteen ; thence running through Chariton county west of and parallel to the county line between Chariton and Macon counties southward to a point eighty rods south of the northeast corner of section twenty-eight, township fifty-sis, range sixteen; thence in a southwesterly direction through said section twenty-eight, to a point 90 rods west of the northeast comer of section thirty-three, township fifty-six, range sixteen; thence in a southwesterly direction through said section thirty-three, to a point one hundred and twenty rods north of the southeast corner of section thirty-two, township fifty-six, range sixteen; thence in a southwesterly direction through said section thirty-two, to a point one hundred and forty rods west of the northeast corner of section five, township fifty-five, range sixteen; thence in a southwesterly direction to a point near the center*424 of the east half of lot three, of the northwest quarter of said section five; thence southward in said section five, to a point forty rods west of the northeast corner of the northeast quarter of the southwest quarter of said section five; thence in a southwesterly direction through said section five, to a point forty rods east of the northwest corner of section eight, township fifty-five, range sixteen; thence in a southwesterly direction through said section eight, to a point fifty rods south of the northeast corner of section seven, township fifty-five, range sixteen; thence in a southwesterly direction through said section seven, to a point ninety rods east of the northwest corner of section eighteen, township fifty-five, range sixteen; thence southwesterly through said section eighteen, to a point forty-five rods north of the northeast corner of section thirteen, township fifty-five, range seventeen; thence southwesterly through said section thirteen, to a point ninety rods east of the northwest corner of section twenty-four, township fifty-five, range seventeen; thence southwesterly through said section twenty-four to a point one hundred and twenty rods south of the northeast corner of section twenty-three, township fifty-five, range seventeen; thence southwesterly through said section twenty-three, to the northeast corner of the northwest quarter of section twenty-six, township fifty-five, range seventeen; thence southwesterly through said, section twenty-six, to a point one hundred and thirty rods north of the southeast corner of section twenty-seven, township fifty-five, range seventeen; thence southwesterly through said section twenty-seven, to a point thirty rods east of the northwest corner of the northeast quarter of section thirty-four, township fifty-five, range seventeen; thence southwesterly through said .section thirty-four to a point one hundred and fifty rods north of the southeast corner of section thirty-three, township fifty-five, range seventeen; thence'in a southwesterly direction*425 through, said section thirty-three, to a point one hundred and ten rods west of the northeast corner of section four, township fifty-four, range seventeen; thence in a southwesterly direction through said section four, to a point one hundred and ten rods north of the southeast corner of section five, township fifty-four, range seventeen; thence southwesterly through said section five, to a point one hundred1 and twenty rods west of the northeast corner of section eight, township' fifty-four, range seventeen; thence in a southwesterly direction through said section eight, to a point seventy rods north of the southeast corner of section seven, township fifty-four, range seventeen; thence southwesterly through said section seven, to a point forty rods west of the northeast corner of section eighteen, township fifty-four, range seventeen; thence in a southwesterly direction through said section eighteen, to a point one hundred and twenty-five rods east of the northwest corner of section nineteen, township fifty-four, range seventeen; thence southwesterly through said section nineteen, to the northeast corner of section twenty-five, township fifty-four, range seventeen; thence southward through said section twenty-five, to a point forty rods west of the northeast comer of section thirty-six, township fifty-four, range seventeen; thence southward in said section thirty-six, to a point thirty rods west of the southeast corner of the southeast quarter of the northeast quarter of said section thirty-six; thence southwardly through said section thirty-six, to a point ninety rods west of the northeast corner of section one, township’ fifty-three, range eighteen; thence southwesterly through said section one, to a point thirty rods north of the southeast corner of section two, township fifty-three, range eighteen; thence southwesterly through said section two, to a point forty rods west of the northeast corner of section eleven, township fifty-three, range eighteen; thence southwesterly in said section eleven, to a point where the ¥a-*426 basil Railroad crosses the main channel of the Chariton river about forty rods southeast of the northwest corner of the southwest quarter of said section eleven; thence southwesterly through said section eleven, to a point seventy rods north of the southeast corner of section ten, township fifty-three, rang’e eighteen; thence southward1 through said section ten, to a point ten rods west of the northeast corner of section fifteen, township fifty-three, range eighteen; thence in a southwesterly direction through said section fifteen, to a point one hundred and ten rods north of the southeast corner of section sixteen, township fifty-three, range eighteen; thence southwesterly through said section sixteen, to the northeast corner of the northwest quarter of section twenty-one, township fifty-three, range eighteen; thence southwesterly through said section twenty-one, to a point one hundred and ten rods south of the northeast corner of section twenty, township fifty-three, range eighteen; thence southwesterly through said section twenty, to a point one hundred and twenty rods west of the northeast corner of section twenty-nine, township fifty-three, range eighteen; thence in a southeasterly direction through said section twenty-nine to a point one hundred and twenty-five’ rods east of the northwest corner of section thirty-two; town ship fifty-three, range eighteen; thence southward through said section thirty-two, to the northeast corner of the northwest quarter of section five, township fifty-two, range eighteen; thence south through the center of.said sec-' tion five to the northeast corner of the northwest quarter of section eight; thence south through said section eight, to the northwest corner of the southwest quarter ■ of the southwest quarter of said section eight; thence southeasterly through said section eight, to the northeast corner of the northwest quarter of the northeast quarter of section seventeen, township fifty-two, range eighteen; thence southeastward through said section seventeen, to a point forty-five rods south of*427 the northwest corner of section sixteen, township fifty-two, range eighteen; thence southeasterly through said section sixteen to a point ninety rods west of the northeast corner of section twenty-one, township fifty-two, range eighteen; thence southeasterly in said section twenty-one, to the Missouri river at a point about forty rods southwest of the southeast corner of the northwest quarter of the northeast quarter of said section twenty-one, township fifty-two, range eighteen, as shown by the plat heretofore filed in the office of the clerk of the county court, marked ‘Exhibit A,’ and survey and level the same and set a stake at every one hundred feet numbering down stream, mark the intersection of boundaries of lands, township and county lines, landmarks, bench marks and road crossings, and make a report, profile and plat of the same and estimate the number of cubic yards of earth or other substance to be removed and the cost per cubic yard for each section of one hundred feet and for the whole work, and make and return a schedule of lots and tracts-of land and public or corporate roads or railroads that will be benefited or damaged by the improvement and the damage or benefit to each tract of forty acres or less, and make a separate estimate of the cost of location and! construction and apportion the same to each in proportion to the benefits or damages which will result to each.
“And you are further ordered to apportion and allot the construction of the number of lineal feet and cubic yards of said work to each lot or tract of land, road or railroad in proportion to the estimate of benefits or damages above described and specify the manner and time in which the improvement shall be made and completed, the number of flood gates, waterways, farm crossings, bridges, and the dimensions thereof and note the county and township lines and railroad crossings.
*428 “You are ordered to file with your said report a plat drawn upon a scale sufficiently large to represent all meanderings of said improvement, and said plat shall distinctly show the boundaries of each lot or tract of land and each road or railroad to he benefited thereby, the name of the owner of each tract of land as the same appears upon the tax books at the time, the authority or company in charge or controlling each public or corporate road or railroad, the distance in feet through each tract or parcel of land, together with such other matters as the viewers and the civil engineer may deem material.
“And you shall file therewith a profile showing the surface and the grade and the grade lines.
“You are ordered to file with the clerk of this court within thirty days after making such survey and levels the report, plat and profile above described, together with an itemized bill of costs made in the proper discharge of your duties.
“You are hereby notified that Charles W. Steiman (and about forty-five others, naming them) have filed with this court a remonstrance against the construction of said proposed ditch or improvement, giving the following reasons, to-wit:
“1st. Because said change and alteration is unnecessary, impracticable and not conducive to public health, convenience and welfare.
“2nd. Because the making of said change and alteration will necessitate the expenditure of an enormous sum of money and the result to be obtained will not justify the outlay.
“3rd1. Because the making of said change and alteration will cause many thousands of acres of valuable land to be overflowed to greater extent and more frequently than heretofore, and thereby greatly damage the same and destroy its value.
“4th. Because the proposed change and alteration in the course of said river will necessitate the con*429 traction of many bridges and roads in Chariton county and thereby be of great expense to all the people of said county.
“5th. Because this court has no jurisdiction or authority of law to alter or change the course of the Chariton river, it being a navigable stream. ’ ’
And afterward, at the May term, 1905, of said county court, on the 6th day of May, 1905, said viewers and engineer filed in said county court their final report, as follows (formal parts omitted):
“In obedience to the order of the county court of Chariton county, Missouri, made on the 2nd day of August, 1904, we E. M. Williams, John Bayne and J. A. Hooper, viewers, and T. 0. Stanley, civil engineer, beg leave to report that we went upon the line described in said order, to wit:
“Beginning at a point where the Chariton river enters Chariton county, Missouri, near the center of the east line of section nine, township fifty-six, range sixteen.” Then follows a description of the same line as is described in the order of the court ordering them to view the line. Then the report continues: ‘ ‘ Surveyed and leveled the same, and set a stake at every one hundred feet, numbering down stream, marked the intersections and boundaries of lands, township, range and county lines, bench marks and road and railroad crossings, as the same fully appear by the plat and profile hereto attached.
“We report that said ditch should be constructed on the line as follows:
“Beginning at a point where the Chariton river enters Chariton county from Macon county, being nine hundred feet south of the quarter section corner between sections nine and ten, township fifty-six, range sixteen, run south seventy-five feet west of and parallel to the line between Chariton and Macon counties, south through sections 9, 16, 21 and 28,15,580 feet to a point twenty-four rods north and seventy-five feet west of*430 the quarter section corner between sections 27 and 28; tbence southwesterly on a one degree curve to a point sixty rods west of the southeast corner of section 28; thence southwesterly to a point sixty-three rods north of the center of section 33; thence southwesterly to a point thirty-six rods south of the quarter section corner between sections 32 and 33; thence southwesterly to a point fifty-one rods west of the northeast corner of section 5, township 55, range 16; thence southwesterly through section 5, to a point forty-nine rods east of the southwest corner of section 5; thence southwesterly through section 8 to a point sixty-nine rods south of the northwest corner of section 8; thence southwesterly through section 7 to a point ninety-seven rods east of the southwest corner of section 7; thence southwesterly through section 18 to a point seventy-six rods south of the northeast corner of section 13, township 55, range 17; thence southwesterly through section 13 to a point six rods north of the southeast comer of section 14; thence southwesterly 150 feet through section 14 to a point seven rods west of the northeast corner of section 23; thence southwesterly through, section 23 on a one degree curve, 2,900' feet; thence southwesterly to a point twelve rods west of the quarter section corner between 23 and 26; thence southwesterly through section 26 to a point two rods north of the quarter section corner between 26 and 27; thence southwesterly through said section 27 to a point seventy-five rods west of the quarter section corner between sections 27 and 33, thence southwesterly through said section 34 to a point sixty-seven rods north of the southeast corner of section 34; thence southwest through said section 33 to a point seventy-seven rods west of the northwest corner of section 4, township' 54, range 17; thence southwest through section 4 to a point eighty-seven rods north of the southeast corner of section 5. Thence southwest through section 5 to a point thirty-one rods west of the quarter section corner between sections 5*431 and 8; thence southwest through section 8 to a point twelve rods north of the southeast corner of section 7; thence southwest through section 7 to a point eleven rods west of the northwest corner of section 18; thence southwest through section 18 to a point six rods west of the quarter section corner between sections 18 and 19; thence southwest through section 19 to a point in the Old Eiver channel sixty-six rods south, and eleven rods west of the quarter section corner on the west side of section 19; thence southerly along the said river channel to a point sixty-six rods north, and three rods west of the quarter section corner on the east side of, section 25, township 54, range 18; thence southwesterly 840 feet to the old river channel; thence southerly along said river channel to a point eighty-four rods south and thirty-three rods west of the northeast corner of section 36; thence southwesterly through said section 36 to a point ninety-nine rods west of the northeast corner of section one, township 53, range 18; thence southwesterly through section 1 to a point ten rods north of the southeast corner of section 2; thence southwesterly through section 2 to a point twenty-five rods west of the northeast corner of section 11; thence southwesterly through section 11 to a point nine rods east of the northwest corner of section 14; thence southwesterly through section 14 to a point nine rods south of the northeast corner of section 15; thence southwesterly through section 15 to a point fifty-seven rods north and thirty-three rods east of the southeast corner of section 15 to the old river channel; thence southwesterly along the old river channel through sections 15 and 16; thence southwesterly along said river channel to a point sixty rods south and twelve rods west of the quarter section corner between sections 16 and 21; thence southwesterly through said section 21 to a point eighty-four rods north of the southeast corner of section 20; thence southwesterly through section 20 to a point seventy-one rods west of the northeast corner*432 of section 29; thence southwesterly through section 29, to a point seven rods west of the quarter section corner between section 29 and 32; thence southwesterly 108 rods; thence southeasterly to a point twenty-four rods east of the quarter section corner on the north side of section 5', 52, 18; thence southwesterly eighty-two rods to the line running north and south through the center of section 5; thence south along the center line of section 5 to the quarter section corner between section 5 and 8; thence south along the center line of section 8 to a point ninety rods north of the quarter section corner between sections 8 and 17; thence southeasterly through the southeast quarter of section 8 to a point thirty-three rods east of the quarter section corner on the north side of section 17; thence southeasterly along what is known as Chapman Slough, to a point sixty-six rods south of the northwest corner of section 16; thence southeasterly along said slough through section 16 to a point thirty-one rods west of the quarter section corner between sections- 16 and 21; thence southeasterly through said section 21 to the Missouri river, at a point about forty rods southwest of the southeast corner of the southeast quarter of the northeast quarter of section 21, township 52, range 18, where said Chapman Slough empties into the Missouri river, all in Chariton county, Missouri, as shown by a map filed herewith, and hereinafter referred to.
“And that said ditch and improvement shall be in the form and of the dimensions as follows, to-wit:
‘ ‘ The depth as indicated by the line marked ‘ grade line’ on profile herewith filed and hereinafter referred to; and shall be twelve feet wide on the bottom, and the sides have a slope of one foot horizontal to each one foot perpendicular, from the place of beginning to the point where said ditch enters the old channel of the Chariton river in the northwest quarter of section 26, township 54, range 17, being near the mouth of Bee .Branch; all the remainder of said ditch shall be dug*433 to a depth indicated by the line marked ‘grade line* on the profile heretofore mentioned, and be fifteen feet wide on the bottom, the sides having a slope of one foot horizontal to each one foot perpendicular, as shown by the following sketch:
“We report that the excavated earth should be deposited along the side of said ditch and no part of said earth closer than five feet to the edge of said ditch.
“We have estimated the number of cubic yard's of earth and other substances to be removed and the cost per cubic yard- of each section of one hundred feet as follows, to wit:” (Here follows a long table of figures representing the estimates for 1,736 sections of one hundred feet each, which table is omitted, because immaterial to this appeal.)
*434 “We have estimated that the whole number of cubic yards of earth to be removed will be 1,495,655, at a cost of- $157,042.50, and that the number of cubic yards of other substance to be removed *will be nothing. We estimate the number of acres of timber on the right of way to be removed to be two hundred at a cost of $6,857.18.
“We have also made and herewith return a schedule of all lots and land of public and corporate roads and railroads that will be benefited, damaged or condemned by or for the improvement and the damage or benefit to each tract of forty acres or less, and made separate estimates of the cost of location and construction and apportioned the same to each tract in proportion to the benefits and damages that may result to each, and we also apportioned and allotted the construction of the number lineal cubic feet and cubic yards of said work to each lot or tract of land, road and railroad in proportion to the estimate of benefits or damages as above described as follows, to wit:” (Here follows a tabulated statement or schedule, which is omitted.)
“We further report that we have condemned the right of way for said improvement one hundred and fifty feet wide; that is to say, seventy-five feet on each side of the line of the survey hereinbefore described, and assessed the damages to the respective owners of the land so condemned, as shown in the following schedule:” (Here follows a tabulated description of the land condemned for said right of way, with schedule of damages awarded the various landowners, which is here omitted, because immaterial to this appeal.)
“We recommend that the said improvements shall be made as follows, to wit: By the use of dredging machinery, placed on boats, and shall be completed within a period of two years from the date of making contracts therefor.
“We report that there are no flood-gates or water*435 ways necessary; that there are nine farm crossings of the following dimensions, to wit: Shall be steel bridges — 60-foot span, 12-foot roadway, placed on solid pile foundations capable of bearing a weight of eighty pounds to the square foot; and eight highway bridges of the following dimensions, to wit: 60-foot steel span with a 14-foot wooden approach; fourteen feet wide; capable of bearing a- weight of one hundred pounds to the square foot; the span to be placed on tubular piers on pile foundation, filled with concrete; the approaches to be on substantial pile foundations. The location of said farm crossings and high bridges will appear on the map herewith filed and hereafter referred to.
“We have made a profile and plat of the proposed improvement showing all the meand'erings thereof, the boundary line of each tract of land and each road and railroad benefited thereby, the name of the owner or owners and all persons interested therein so far as we by diligent effort have been able to ascertain the same, the authority or person having charge, owning or controlling each public road or railroad, the distance in feet through each tract or parcel of land, the surface grade line and grade, which profile and plat are herewith filed and attached to this report and made a part thereof.
“We further report that the survey made by us was completed on the 24th day of March, 1905.
“We submit the following itemized bill of costs made by us in the proper discharge of our duties, to wit:” (Here follow bill of costs and expense account, which are omitted.)
“All of which is respectfully submitted.”
This report was accompanied by profile and plat which showed the boundary lines of the district, indicating all tracts of land, including public roads and railroads, which would be affected by the proposed improvement. It also gave a description of every tract
Upon the incoming and filing of this report, notice was, on April 13, 1905, duly given by publication, as provided for by section 8287, Revised Statutes 1899', as amended by section 8287, page 183, Laws 1905, to all persons interested in any way in any of the lands affected by the proposed improvement, setting out the description of every tract of land affected, that the viewers’ final report was on file in the office of the county clerk and that on a day fixed in said notice said report would by the county court be heard and considered, and that all persons interested should appear on or before that date and file their objections, if any they had to said report. Proof of the publication of said notice was filed May 6, 1905.
And afterwards, on the 27th day of May, 1905, said county court made and entered of record the following order approving final report of viewers.
“In the Matter of Drainage District Number Pour of Chariton County, Missouri.
“The court being fully advised of and concerning all the premises, and finding that the petition for the construction of the proposed ditch is signed by more than five landowners whose lands will be affected by or assessed for the construction of the same; and the court further finding that the said ditch as petitioned for and as recommended by the viewers and engineer heretofore .appointed in that regard will he conducive to the public health, convenience and welfare and will he of public utility and benefit,
“It is therefore ordered by the court that the report of the viewers, heretofore, filed on the 13th day of April, 1905, and as amended by this court be and the same is hereby approved in all matters and things.
“And it is further ordered by the court that the said ditch be constructed as provided' in said report, and that Thomas O. Stanley, civil engineer, let con*437 tracts for the construction of said work, at the courthouse in the city of Keytesville, Missouri, on Thursday, the 6th day of July, 1905, between the hours of nine o’clock in the forenoon and five o’clock in the afternoon of said day.
“And it is further ordered by the court that the clerk of this court give notice of the letting of said contracts by publication in the Salisbury Press Spectator, a newspaper of general circulation, published in this county, for three consecutive issues, the last insertion to be at least ten days before the letting. ’ ’
And afterward, on the said 27th day of May, 1905, said county court made -and entered of record the following order: (Then follows the order for the issue and sale of the bonds, with copy of same, in usual form.)
Notice was given of the letting of the contracts for the construction of the ditch, and under that notice the contracts were let; also notice was given for the sale of the bonds ordered issued by the court, and the report of the county treasurer shows that when said bonds were offered he received no satisfactory bid for them and all bids made were rejected. The treasurer’s report shows that the bonds were objectionable for one reason- — on account of their amount — they having been issued in denominations of one hundred dollars.
Acting upon this report of. the treasurer, the county court approved the report and made an order for the annulling and cancellation of said bonds; also for a subsequent issue of bonds to the same amount, $180,000, which bonds were to be issued in denominations to suit the purchaser thereof. Under this last order of the court, bonds were issued and sold for cash, bringing $187,700, or a premium of $7,700.
Continuing, the order reads as follows:
“And the court finds to carry into effect the provisions of this order there exists a necessity for the assessment, levy and collection of an annual tax*438 against the real estate embraced in said district and assessed with, benefits in addition to the tax for the current county expenditures a tax sufficient to pay the interest on said bonds as the same become due and a sufficient sinking fund for the payment of the principal of said bonds when they become due.
‘ ‘ It is therefore ordered by the court that the rate of taxation for said interest fund be and the same is hereby fixed at the rate of sixty mills on the one dollar assessed benefits, and that the rate of taxation for said sinking fund be and the same is hereby fixed at the rate of forty mills on the one dollar assessed benefits on the real estate embraced in said drainage district, to be collected annually on or before the 31st day of December in each year, which said sum when so collected shall be used for the purpose of paying the interest and principal of said bonds and for none other.
“And it is further ordered by the court that the clerk of this court be and he is hereby directed to enter a levy as hereinbefore provided upon the tax books against the real estate embraced in said drainage district, and assessed with benefits to be collected in the same manner as state and county taxes are collected.”
The purchase price of the bonds was collected by the county treasurer, and was set apart to the said drainage district fund1.
The work upon the drainage system progressed until the institution of this suit, at which time almost the entire work had been completed, all bridges provided for had been constructed and practically all the excavation had been made, and nearly all of the money realized from the sale of the bonds had been paid out and distributed to the various contractors. Counsel for the relators filed in this court the following motion to quash the proceeding had in the county court.
“Upon the record and proceedings of said county court in the matter of said Drainage District No. 4,*439 your petitioner at tire relation and to the use aforesaid assigns the following errors:
“1. The county court acquired no jurisdiction in the premises for the reason that the petition filed in said county court shows on its face that the avowed object of its signers, to wit, to straighten the Chariton river, was not within the scope or meaning of the statute of 1899 or the amendment of 1903; and that such object amounted to an unlawful interference with the course of a stream declared by law to be a public highway.
“2. It is not stated in the petition filed in said county court, nor is there any finding or recital in the record or proceedings of said county court, that the Chariton river was or is ‘a natural stream not navigable,’ so as to authorize the proposed alteration of its channel under the Laws of 1903, p. 234, in force when said drainage proceedings were begun.
“3. Said petition filed in the county court is wholly insufficient for want of any statement therein on the following issuable and jurisdictional facts, to wit: Said petition does not allege or show that the construction of the proposed drain was ‘necessary to drain any lots, lands, public or corporate roads, or railroads;’ or that the petitioners were ‘landowners whose lands will be liable to be affected by or assessed for the construction of’ the improvement; nor does said petition set forth the necessity ‘for the proposed drain;’ nor does it give ‘a general description of the proposed ditch or drain, starting point, route and terminus; ’ nor does it describe any of the lands through Avhich said proposed drain was designed to run; nor the names of any of the landowners, other than petitioners; nor does it give the width of the strip of land sought to be appropriated, or the width of the proposed ditch. And, lastly, said petition is so vague, evasive, indefinite and uncertain as to be misleading.
*440 “4. The record shows that said county court did not acquire jurisdiction of the subject-matter of the proposed drainage scheme for the reason that the bond required by section 8279', Revised Statutes 1899, was not filed'. The bond actually filed is wholly insufficient under said section; first, because it does not appear from the face of said bond that any person or persons whosoever, executed or intended to execute the same as sureties; and, second, because it does not appear from the order of the county court approving said bond that the persons who are named in said order as sureties, viz., Thomas Karcher and Eli Shire, were ‘freehold sureties,’ as required by said section 8279.
“'5. The record shows that said county court did not acquire jurisdiction of the subject-matter for the reason that the order appointing the viewers to make the preliminary survey is insufficient and void on account of the same omissions and for the- same reasons hereinbefore urged against said petition; and for the further reason thatfthe published notice of the filing of said petition and appointment of said viewers to make such survey describes no lands, gives the names of no landowners other than the petitioners, and does not give a general description of the proposed ditch, ‘the place of beginning, route or terminus’ thereof, as required by See. 8281, R. S. 1899-, in force at the time said notice was published.
“6. That it does not appear from the record or proceedings of said county court that said notice of the filing and pendency of the petition and appointment of viewers to make preliminary survey was published in a newspaper ‘of general circulation,’ as required by See. 8281, R. S. 1899.
“7. It appears from said record that the first report of the viewers does not conform to the requirements of Sec. 8284, R. S. 1899, in that said viewers do-not describe therein the lands affected nor ‘report the best route for the proposed drain;’ but refer to an un*441 identified profile and plat previously made and filed without apparent authority of law. -
“8. The published notice of the filing of the viewers’ first report, as shown by the record, was unauthorized and void for the reason that the Act of April 7,1905 (Laws 1905, p. 180), under which said notice was published, does not in terms or by implication apply to drainage proceedings instituted before its enactment; but on the contrary expressly provides that proceedings already commenced under the sections repealed by said act may he completed under the said repealed sections, which repealed sections include Sec. 8286, B>. S. 1899', requiring notice by summons.
“9. Said county court acquired no jurisdiction for the further reason that it does not appear from said record and proceedings that any summons to landowners was ever issued or served.as required by Sec. 8286, R. S. 1899.
“10. The final report of the viewers does not conform to the requirements of the Act of 1905.
“11. The order of the county court approving the viewers’ final report does not conform to the requirements of Sec. 8288, p. 184, Laws 1905, in that said court did not ‘determine whether the required notice had been given’ as provided by said section.
“12. The order of re-assessment and re-apportionment made by said county court at its August term, 1905, was entered without authority of law, without notice to the persons concerned, after the matter had been finally passed upon at a former term; and the matters recited and set forth in said order are not sufficient to sustain or justify the making of said' order.
“13. The record, and proceedings of said county court relating to the assessment of benefits against the lands of these relators and others were and are illegal, insufficient and void for the reason, among other things, that in many instances the description given in said record and proceedings of lands affected*442 by said assessment is so indefinite and uncertain that said lands cannot be identified by means of such description, so that as to said lands said assessments cannot be legally charged or enforced.
“14. It appears from said record that all and singular the other orders and proceedings of said county court with respect to the levying of assessments, the letting of contracts for construction, and! for the issue and sale of bonds, were and are without authority of law and void.
“Tour petitioner and the relators named in the caption hereof, because of the reasons of law and errors of record hereinbefore set forth, do therefore pray that said record and proceedings of said county court be annulled and quashed.”
OPINION.
I. The first question to be determined, if we follow the logical order of the proceedings had, should be that involving the sufficiency of the petition filed in the county court of Chariton county by the property-owners, asking for the organization of the drainage district in question.
In order to determine the numerous legal propositions presented by this record, we should have in our minds the various statutes under which the proceedings of the county court were had.
All of the proceedings had in that court prior to April 7,1905, were had under article IY of chapter 122, Revised Statutes 1899, and all those had subsequent to that day were binder that article as amended by an act of that day, found in Session Laws of 1905, pages 180 to 190', with an emergency clause.
The statutes which are of the most importance in the consideration of this case are sections 8278 to 8283, Revised Statutes 1899', and sections 8284 to 8288 of Laws of 1905, pages 182 to 184, entitled, “Lands: Drainage of Swamp and Overflowed Lands.”
“Sec. 8278. The county court of any county in the State of Missouri shall have power at any regular session thereof, when the same shall he conducive to the public health, convenience or welfare, or where the same will he of public utility or benefit, to cause to he constructed, straightened, widened, altered or deepened, any ditch, drain or water-course within said county, when the same is necessary to drain any lots, lands, public or corporate roads, or railroads. The word ‘ditch’ as used in this article shall be held1 to include a drain or water-course, or any drain or watercourse hereafter constructed. The petition for any such improvement shall be held to include any side, lateral spur or branch ditch, drain or water-course, or levee, the lowering of any lake or other work necessary to secure fully the object of the improvement petitioned for, whether the same is mentioned in such petition or not.
“Sec. 8279. Before any county court shall establish any ditch, drain or water-course improvement, as provided for in this article, there shall be filed with,■ the clerk of the county court of such county a petition signed by one or more landowners, if the improvement be less than five miles in length and by five or more landowners, if it be more than five miles, whose lands will be liable to be affected by or assessed for the construction of the same, setting forth the necessity therefor, with a general description of the proposed ditch or drain, starting point, route, and terminus, and whether it is desired to issue bonds. There shall be filed with such petition a bond in the sum of not less than fifty dollars per mile, payable to the State of Missouri, signed by such petitioner or petitioners, and two or more good and sufficient freehold sureties, to be approved by the county court, conditioned for the pay*444 ment of all costs if tlie prayer of the petition be not granted, or be dismissed from any canse.
‘1 Sec. 8280. When such petition is filed, and such bond approved, the county court shall, if in regular session, or at a called session, appoint three resident freeholders of said county, not interested in the construction of said wort and not of tin to any person interested therein, as viewers, and also* a competent civil engineer, to assist them, and who shall proceed at once under directions of any order of said court made therein, certified by the clerk, to view the line of the proposed ditch or improvement and report by actual view of the premises along and adjacent thereto whether the proposed improvement is necessary, practicable or will be conducive to the public health, convenience or welfare, and report the best route for the proposed drain, whether any portion of the same should be covered and whether the work of constructing the same should be by allotment to the several interests or be let by contract without allotment, they shall report their finding, in writing, to the county court at a time fixed by said court, and if no time has been fixed, at the next regular term thereof, and the said court shall cause the same to be entered on its records. All viewers and engineers before entering upon the discharge of their duties as such shall take and subscribe an oath to faithfully and impartially discharge their duties as such viewers and engineers and to make a true and correct report of the work done by them.
“Sec. 8281. It shall be the duty of the county court at the time of the appointment of the viewers as above provided to cause a notice of the pendency of said petition and the appointment of said viewers, the place of beginning, route and terminus of said proposed ditch or drain, and the time fixed by said court at which said viewers will make their report, to be given by publication by one insertion in some news*445 paper of general circulation published in said county.
“Sec. 8282. If the county court shall find against the improvement, it shall dismiss the petition and. proceedings at the cost of the petitioners, and shall issue an itemized bill of all costs, which shall include the per diem of the viewers and engineer together with all other costs, including the fees of the county clerk in like manner and with like effect as fee bills are issued by the clerk of the circuit court, and shall be collected as provided by law.
‘‘ Sec. 8283. It shall be lawful for any person interested in the location of said proposed ditch or work to file with the court on or before the day set for the making and hearing of the report of the viewers appointed to make such preliminary survey of said proposed ditch or work, a remonstrance or objection, in writing, against the ditch or work as located by the petition and report of the viewers across his lands, by setting forth his grievances therein, which shall be heard by the county court, and filed with the petition, a minute of which shall be made in the certified order to the viewers who shall make the estimates. The petitioners shall be released from their bonds, when the county court shall find from the report of the viewers in favor of making the improvements.”
And those of the Laws of 1905 are as follows:
‘ ‘ Sec. 8284. If the county court shall find that the proposed ditch or other improvement is necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare, it shall cause to be entered upon the record of the court, such finding, and an order appointing the formerly appointed, or another competent civil engineer, and three viewers, one, two, all or none of whom, may, in the discretion of the court, have served as such in making the preliminary survey and report, who shall possess the qualifications, and, before entering upon the discharge of their duties, shall take the oath pre*446 scribed by section 8280, and directing them to go npon tbe line described in the order, and if only the general route has been located, to establish the precise location thereof, where in their judgment the proposed improvement will prove most efficient to survey and level such described or by them established line, and set a stake at every one hundred feet, numbering down stream, mark the intersections and boundaries of lands, township, range and county lines, bench-marks and road and railroad crossings; to determine the dimensions and form of the proposed ditch, levee or other improvement and what disposition shall be made of excavated earth; to estimate the number of cubic yards of earth or other substance to be removed and the cost per cubic yard for each section of one hundred feet, and for the whole work, and to make a report, profile and plat of the same. They shall also make and return a schedule of all lots and lands and of public and corporate roads or railroads that will be benefited, damaged or condemned by or for the improvement, and the damage or benefit to each tract of forty acres or less, and make separate estimates of the cost of location and construction, and apportion the same to each tract in proportion to the benefits or damages that may result to each. If so ordered by the court, they shall apportion and allot the construction of the number of lineal feet and cubic yards of said work to each lot or tract of land, road or railroad, in proportion to the estimate of benefits or damages as above described. They shall specify the manner and time in which the improvement shall be made and completed;, the number of flood-gates, waterways, farm-crossings, bridges and dimensions thereof, and note the county and township lines and railroad crossings. The plat shall be drawn upon a scale sufficiently large to represent all the meanderings of said improvement, and shall distinctly show the boundary lines of each lot or tract of land, and each road or railroad to be benefited thereby, the name of the owner or*447 owners of each, tract of land and of any interest therein, so far as they are, by diligent effort, able to ascertain the same, the authority or company having in charge, owning or controlling each public or corporate road or railroad, the distance in feet through each tract or parcel of land, together with such other matters as the viewers or engineer may deem material. Such profile shall show the surface, the grade line and grade, if any fixed, and the viewers and the engineer shall make and file with the report an itemized bill of costs made in the proper discharge of their duties, and shall file their report with the clerk of the court within thirty days after making said survey and levels. If any engineer or viewer shall die, or fail or refuse to qualify and serve as such, the county court may appoint some other person having the prescribed qualifications, who shall, before entering upon the discharge of his duties, take the oath prescribed by section 8280‘.
“Sec. 8285. In locating a public ditch, drain-or water-course or levee, the viewers may, if they deem best, vary from the line described in the petition: Provided, they commence at the point described in the petition and follow down the line described as nearly as practicable; and provided further, that when the ditch described in the petition is insufficent in length to drain the lands adjacent thereto, they may extend the ditch below the outlet named in the petition as far as may be necessary, not exceeding one mile, to obtain sufficient fall or outlet. And when it will not be detrimental to the usefulness of the whole work they shall, as far as practicable, locate the ditch on the division lines between lands owned by different persons; and they shall, so far as practicable, avoid laying the same diagonally across the land, but they must not sacrifice the general utility of the ditch to avoid diagonal lines. And all persons, whose lands may be affected by said ditch, may appear before the viewers and freely express their opinions on all matters pertaining thereto.
*448 ‘ ‘ Sec. 8286. The viewers shall have the power to condemn the right of way for the ditch or other improvement; and when damages are allowed persons, their benefits, if benefited, shall be taken into consideration, and their assessments for benefits shall be reduced by the amount of their damages; and if not benefited, they shall be allowed and paid compensation for their damages.
“Sec. 8287. Upon the filing of the report of the viewers, the county clerk shall immediately set the hearing of the same for some day of the next regular term of the county court. He shall thereupon issue, in the name of the state, a notice, directed by name, to every person returned by the engineer and viewers as the owner of every lot or parcel of land affected by the proposed improvement or of any interest therein, and also hy name, to all others, whom it may in any manner be ascertained owned such land, or any part thereof, or any interest therein, and also generally to all other persons, without mentioning their names, who may own such land, or any part thereof, or any interest therein, notifying them of the general object and nature of the petition and report of the engineer and viewers, and that, on the day so fixed, the county court will hear said petition and report, and any evidence that may be adduced concerning the same, and requiring them, on the day fixed for the hearing to appear before the county court and show cause, if any they have, why said report should not be confirmed, as made or as the same may by the county court be amended, and the improvements and assessments, therein described or as the report may be amended, made.. Such notice shall contain in appropriate columns, a tabulated1 description, which may be abbreviated as land descriptions are usually abbreviated, of every lot or parcel of land that will be affected by the proposed improvements, and shall be published in four issues of some weekly newspaper pub-*449 listed in the county, the last insertion to be before the day set for the hearing.
“Sec. 8288. The court shall first determine whether the required notice has been given. If it finds that due notice has not been given, it shall continue the hearing to a day to be fixed1 by the court, and cause the notice to be given as provided in section 8287; and when the court finds that due notice has been given, it shall examine the report of the engineer and viewers, and if it appears to the court that the estimates of the cost of location and construction and of damages and benefits to each tract are correct, and that the apportionment of the cost of location and construction is, in proportion to the benefits and damages to each tract, in all things fair andi just, it shall approve and confirm the same; if, however, the county court shall find that the apportionments reported by the engineer and viewers are unfair or unjust, and, as made, ought not to be confirmed, it may, by an order of record, amend the report upon the evidence so as to make the apportion-ments fair and just in proportion to the benefits or damages; if the county court shall find that the location or specification of the ditch or other improvement should be changed it may by an order of record change such location and dimensions, provided that, before the county court shall change the location reported by the viewers, the parties interested shall convey or cause to be conveyed to the drainage district, a right of way for the ditch or other improvement upon the route selected by the county court.”
All other sections applicable to the case will only be referred to by numbers, as they are of less importance to the questions involved.
The petition is copied in full in the statement of the case; and there are several objections urged against its sufficiency, which we will now consider.
We do not clearly grasp just what the learned counsel mean hy that objection; but we suppose they mean to convey the idea that there were other persons owning lands embraced within the proposed drainage district who neither signed the petition nor were their names mentioned therein.
If we have correctly interpreted counsel’s meaning, then we have no hesitancy in saying that their contention is untenable, for the reason that the statute neither requires all the landowners whose lands are to he affected by the drainage district to sign the petition asking for its organization, nor does it require that their names should be stated therein. The statute only requires that before such a district shall be established the petition asking therefor shall be signed by one or more land-owners, where the improvements asked for are less than five miles in length, and by five or more where the improvements are to be more than five miles in length. The return shows that the improvements in question were to be thirty-five miles in length, and that the petition asking for the organization of the district was signed by one hundred and twenty-five resident freeholders of Chariton county, who owned overflowed lands adjacent to Chariton river.
We, therefore, hold that the petition is not vulnerable to the objection made.
(b) The sufficiency of the petition is next assailed because it did not contain a description of the lands to be embraced in the proposed district.
It is a sufficient answer to that objection to state that the statute makes no such requirement. That and kindred matters are governed by other sections of the statutes and by later proceedings to be had in the case, all of which will be presently considered.
Sections 8278 and 8279, before quoted, which prescribe what the petition shall contain, do not require it to state the true description, starting point, route and terminus of the .ditch. They provide that the petition shall give a “general description of the proposed ditch or drain, starting point, route and terminus.” Those matters also are to be made definite and certain at later stages of the proceeding, as provided for by other sections of the statute mentioned. The petition, however, gives a general description of the proposed ditch or drain. The starting point is stated with certainty; the general course thereof is made as definite as it could he made in advance of the survey and location to he made by the viewers and engineer, upon whom said section 8280 imposes the duty of determining and fixing the exact location, subject to the approval of the court; and the terminus of the ditch is also definitely fixed by the allegations of the petition. And in addition to this, the petition referred to a plat and survey therewith filed, which with more particularity described the termini and course of the proposed ditch. That was more than the statute required the petition to state.
The same result was reached by this court in the case of State ex rel. v. Wilson, 216 Mo. 215, where a similar drainage statute was under consideration.
In Cory v. Railroad, 100 Mo. 282, a case involving the condemnation of real estate by the railroad, Sherwood, J., discussing the sufficiency of the description of the real estate to be condemned, said: “Did the condemning company conform to the provisions of the general law? It is insisted that the petition does not contain a ‘description of the real estate which the company seeks to acquire,’ but the petition mentions the particular eighty of the defendant’s land over which the proposed road was to be constructed, gives the gen
The case of State ex rel. v. Commissioners, 87 Minn. 325, was a drainage case, and in discussing this identical question the court said: “It is further contended that the description of the proposed ditch, as set forth in the petition, is so indefinite and uncertain as to confer no jurisdiction upon the county commissioners. We do not concur with relators in this contention. The description of the proposed ditch, as contained in the petition, is as follows: ‘ Commencing at a point in the southwest quarter of the southwest quarter of section eight, the northerly shore of a certain lake, lying and being in said section eight, and section seventeen, town of Queen, Polk”county, Minn.; thence running,’ etc. The precise objection made to the description is that it is indefinite and uncertain as to the starting point of the proposed ditch. A petition in proper form is, no doubt, a prerequisite to the authority of the commissioners to act, but it is not necessary that the same contain an accurate description of the proposed ditch—either of its starting point or terminus. It is sufficient if the description contained therein be approximately correct. [Kinnie v. Bare, 68 Mich. 625, 36 N. W. 672.] The precise location of the ditch is determined by the civil engineer, and is to be found in his report; and that this report definitely located that point and the entire course of the ditch there is no question [Cribbs
We, therefore, hold that this contention is without merit.
(d) Counsel for relators next complain of the insufficiency of the petition because the width of the ditch was not stated therein.
Our attention has not been called to any statute which requires the petition to state any such fact, nor have we, after a most careful research, been able to find such a statute; and we conclude none such exists. We must, therefore, decide this contention against re-lators.
(e) It is finally insisted that the petition is fatally defective because it “dues not show that the petitioners possessed the statutory qualifications.”
As counsel do not state what those qualifications are, we will have to turn to the statute in order to ascertain them. The only section bearing upon that subject is section 8279, and it provides that the petition shall be signed by “land-owners . . . whose lands will be liable to be affected by or assessed for the construction of the same.” The language of the petition relating to that matter is as follows: “We, your petitioners, resident freeholders in said Chariton county, and each owning swamp and overflowed lands adjacent to the Chariton river, believing that it would be conducive, etc., . . . to be so constructed, straightened,
It is observed by reading those allegations of the petition that it states that the petitioners are owner's of swamp and overflowed lands adjacent to Chariton river, and that they believe that the proposed improvements would, prevent the overflows of said river and great damage to the lands adjacent thereto. While these allegations are not in the language of the statute, yet they conform to the spirit and meaning thereof, for the reason that, if they owned such lands adjacent to said river and they were subject to frequent overflows by the waters therefrom, then clearly they would “be liable to he affected by or assessed for the construction of said improvements. ’ ’
Besides that, the county court found that the petition for the construction of the proposed ditch was signed by more than five landowners whose lands would be affected by or assessed for the construction of the same. This finding of the court shows that it placed the same construction upon the allegations of the petition that we have; and for that reason we held that question was adjudicated by that court, and cannot he reviewed on certiorari.
There is nothing contained in the opinion of Zimmerman v. Snowden, 88 Mo. 218, that militates in the least against the views above stated. That was a proceeding to open a public road, and it lends its support to, rather than opposes, the views herein expressed, for it says on page 220: “These are jurisdictional facts necessary to be made to appear upon the record somewhere, otherwise, under the former rulings of this court, the proceedings are void. ”
The case of Township v. Phinney, 53 Mich. 130, has no application to the facts of this case. There the court, without notice, to the landowners, appointed a special drain commissioner under the statute; and the
We, therefore, rule this contention against rela-tors.
II. The records of the county court as regards the proceedings had therein in relation to the organization of this drainage district are vigorously assailed by counsel for relators, because the bond filed by the petitioners does not purport to be signed by sureties, as required by said section 8279 of the statutes.
It is true, the return does not disclose that Shire and Karcher signed the bond as sureties, or that they were freeholders, but the court found that to be a fact, and the record so shows.
That presents the proposition, Is the filing of the bond, as required by that section of the statutes, jurisdictional ; and if so, does such failure render the entire proceeding in that court null and void? Counsel for relators maintain the affirmative of that proposition, while counsel for respondents deny it.
Counsel for the former rely upon the case of Casey v. Burt County, 59 Neb. 624, as authority sustaining their position. While the bond in that case did not purport to be signed by any surety, yet that fact did not seem to enter into the consideration of the case or to influence the court in reaching the conclusion that the bond was void, and that the proceedings of the county court were invalid for that reason. The only reference to that fact is contained in this language of
“Therefore, before a county board can acquire jurisdiction of a proceeding of this nature, a bond complying strictly with- the provisions of section 4 of said chapter must be filed and approved. With the provisions of this section, the bond1' in several important respects fails to conform. There are no sureties on the bond; the liability of the principals is limited to a specific sum, and it is not conditioned for the payment of the costs that may occur in case the board finds against such improvement, as the statute requires, but only provides that if, upon view of said route in the petition described, the commissioners shall find in favor of the location of said ditch, then the obligation to be void, otherwise to be in force. If such a bond is upheld in this case, there could be no reason why a bond providing a penalty limited to one cent, or to nothing, should not also be sustained. Under the conditions of the bond filed, it can be seen that, although the county board might have determined in favor of the location of the ditch, it might have decided against the improvement, on the ground that it was not necessary, or that*457 it was not conducive to the public convenience, bealtb or welfare; still the bond would not have been enforceable, and the county would have had recourse on no one for the expense and cost of such proceeding. ’ ’
But independent of that opinion, we have no hesitancy whatever in holding that the failure to give the statutory bond in a proceeding like this is not a jurisdictional matter. The bond, required to be filed is simply a cost bond,'obligating the petitioners to pay the costs of the proceedings in ease the court should deny the petition praying for the organization of the drainage district. It has nothing whatever to do with the merits of the case; nor can the proceedings in any manner affect the personal or property rights of any person who fails or neglects to sign the petition, asking for the improvements to be made, until after he has been fully compensated for his property taken and damages done to the same thereby. Such a proceeding is not like an injunction, attachment or replevin suit, which deprives a person of his personal or property rights in advance of the trial and judgment of the court. In all such cases the bond required by the statute is one of the jurisdictional facts or steps which must be taken before the process of the court can lawfully issue. But that is not true here; the bond is wholly collateral to the process of the court, and is foreign to the issues and merits of the case.
The design of the Legislature in requiring the bond to be given was to secure the cost made in the cause, in case the proceedings for the organization of the district failed. It is not, and cannot be, contended that the bond filed in this case did not as perfectly secure the costs of the case as it would have done had it been designated by Shire and Karcher as sureties, instead of as principals, as it appears. All who signed it appear to be principals. The only variance in this case that exists between the bond and the requirements of the stat
But, as before stated, the filing of the bond was not necessary to give tbe county court jurisdiction in tbe case. Tbe filing of the petition vested jurisdiction in tbe court over tbe subject-matter of tbe case, and it acquired jurisdiction over the persons of tbe landowners upon giving to them the statutory notice of the pendency of tbe petition, and more especially by the service of tbe notice upon them as is provided for by section 8286, Revised Statutes 1899, as amended by section 8287, p. 183, of Laws of 1905.
In discussing this last proposition, the Supreme Court of Indiana, in tbe case of Cauldwell v. Curry, 93 Ind. 363, on page 364, said: “Tbe filing of tbe proper petition invokes tbe jurisdiction of tbe board of commissioners in tbe matter of tbe particular ditch therein described, and tbe statute invests tbe board with general jurisdiction of the subject-matter of ditches. . . . The irregularity in accepting tbe bond with one of tbe commissioners as surety does not constitute ground for relief, for the reason that the complaint does not show that any injury resulted to the appellants.”
And tbe same court in the case of Smith v. Clifford, 99 Ind. l. c. 114, in passing upon this question, said: “The transcript of the proceedings before the county board, filed as an exhibit with tbe complaint, shows the filing of the petition, the giving of proper notice, the appointment of the appraisers, and their assessment of the damages and benefits. Sufficient is shown to give tbe county board jurisdiction of tbe case, and in such cases all irregularities before tbe county board are waived by not appealing from their judgment, and their proceedings are conclusively presumed to be correct, and cannot be attacked in this collateral way. [Cauldwell v. Curry, 93 Ind. 363; Town of Cicero v. Williamson, 91 Ind. 543; Foster v. Paxton, 90 Ind.
The same question came before the Supreme Court of Michigan in the ease of Hall v. Slaybaugh, 69 Mich. 484, and on page 485 Chief Justice Sherwood, in speaking for the full court, said: “It is difficult to conjecture anything pertaining to a drain in any way, that would not come properly under this title if made the subject of legislation. It is the petition, in this class of eases, which gives the commissioner jurisdiction, and, if that is sufficient, the other proceedings after that, if not in accordance with the statute, become irregularities of more or less importance according to the extent of the injury resulting therefrom, and which not unfrequently is so great as to render the whole proceedings void. Such irregularities may be, however, and often are, waived by the party who is to be affected thereby, and1 when thus waived he cannot be heard to complain thereafter of such irregularity.”
To the same effect is the case of Drainage District v. Railroad, 216 Mo. 709—opinion by Yalliaht, J.
•But to escape the conclusion before stated, counsel for relators insist that the proof of publication of the notice of the pendency of the petition is bad, for the reason that the record does not show that it was published in a newspaper of general circulation, as is required by section 8281, Revised Statutes 1899.
There have been so many attacks made upon said notice and the proof of publication thereof, we deemed it proper to set both of them out in full in the statement-of. the case. The record shows that the notice was published in the “Salisbury Press-Spectator, a newspaper published in the city of Salisbury,” but the proof of publication filed by the publisher does not state that it was a paper of general circulation. Upon that showing, counsel for relators insist that the notice was not published in a newspaper of general circulation, and for
The case of Koen v. State, 35 Neb. 676, is relied upon to support relators’ position. In that case the plaintiff in error was convicted of criminal libel and sentenced to imprisonment in the penitentiary. His conviction was had under section 47 of the Nebraska Criminal Code, which provides: “If any person shall write, print or publish any false and malicious libel of, or concerning another, or shall cause or procure any such libel to be written or published, every person so offending shall, upon conviction thereof, be fined in any sum not exceeding $500', or be imprisoned in the county jail not exceeding- six months, or both, at the discretion of the court, and, moreover, be liable to the party injured: Provided, that if said libel is published in a newspaper having a general circulation, the person so offending shall be punished by imprisonment in the penitentiary'not less than one nor more than three years.” The charge in the indictment was that the defendant unlawfully, maliciously and feloniously did compose, write and publish in a certain newspaper, called The Kansas City Sun, published and of general circulation in the county of Douglas, in the State of Nebraska, a certain false, scandalous, malicious, and defamatory libel of and concerning Nettie Wilson. It will be observed by reading the charge in the indictment that the libel was published in The Kansas City Sun, which had a general circulation in Douglas county. The indictment thereby negatived the idea that it was a newspaper of general circulation throughout the country by stating in effect that it had only general circulation limited to Douglas county. In that case the Supreme Court held that the indictment did not charge that the libel was published in a newspaper of general circulation; and for that reason it did not charge the defendant with the commission of a felony.
The Court in the case of State ex rel. v. Wilson, 216 Mo. 215, in speaking of the notice required to be given by a similar statute, held that the rule of law requiring the records of courts of limited and inferior jurisdiction, not proceeding according to the course of the common law, to affirmatively show all the facts the statute requires to be stated does not apply to cases where the law invests the county court with authority to find the existence of those facts before it can acquire jurisdiction, for in such cases the law presumes the court found the facts to be as the statute required. And the Supreme Court of Indiana in the case of Muncey v. Joest, 74 Ind. 409, held that whether there was or was not sufficient notice was a jurisdictional question to be determined by the commissioners, and that their finding could not be collaterally attacked unless the record affirmatively showed that no notice whatever was given.
The county court was not confined to the affidavit of the publisher in determining the question as to whether or not the Salisbury Press-Spectator was a
In the absence of a showing to the contrary by the record, the law will presume, where the court acted in the matter, that it performed its duty in that regard. Not only that, this record shows that each and every one of these relators not only knew of the pendency of the petition, hut it also shows that all of them were actually in court in some form or other and participated) at one stage or another in the proceedings, as will more fully appear in a subsequent paragraph of this opinion.
For the reason above stated, we rule this contention also against relators.
III. Counsel for relators next insists that the published notice of the filing'and pendency of the petition in the county court on May 2nd, 1904, was insufficient to vest jurisdiction in the county court over relators or their property, for the reason assigned, that it “gives no names save those of the petitioners, describes no lands, outlines no district, but simply invites persons concerned to come to the court house and look at a map.”
In considering this question, we must bear in mind that this is purely a preliminary notice notifying all persons interested in or concerned in the swamp and overflowed land adjacent to the Chariton river that the petition asking for the improvement was pending, and that said viewers would report to the county court on the first day of the July term thereof, to be held on July 1, 1904. No district had then been organized, nor had there been any attempt to do so, and for that reason the notice could not state what lands or the names of the owners who would be actually embraced in the proposed district. Those matters could only be deter
The statute requiring this preliminary notice to be given is section 8281, hereinbefore set out.
We might add, in addition to what we said upon this subject in the previous paragraph, that it is not contended1 that this notice does not conform to the requirements of that section, but the objection lodged against it goes more to the validity of the statute than it does to the notice, for if the statute is invalid, theu the notice must necessarily be bad also. The principal object of that statute was to give notice to all persons whose lands “were liable to be affected by or assessed for the construction” of the proposed drainage system, in order that they might appear in court on the day sob for the viewers to report, if they saw proper to do so, and participate in the preliminary steps of the organization. But this section has but little to do with bringing into court the parties whose lands are actually embraced within the boundaries of the proposed district; they were brought into court by virtue of the notice given April 13, 1905, returnable May 6, 1905, in pursuance to the provisions of section 8287 of the Laws of 1905. That notice gave the boundaries of the district, the description of each lot or tract embraced therein and the names of each and all of the owners thereof. There is no pretense but what this notice, if legally issued, had the effect of bringing all landowners of the district, including relators, into court, where they were given full opportunity to be heard upon all questions involving the organization of the district and the construction of the drainage system. This is the effect of the ruling in the case of State ex rel. v. Wilson, supra.
But it is insisted by counsel for relators, that said notice was illegal, for the reason that when the petition was filed and this drainage proceeding was begun in 1904, section 8286, Revised Statutes 1899, was in force,
Upon that showing, counsel for respondents insist, that, since said section 8287 of the Laws of 1905 was in force, it governed in the mode of service of process, and that said section 8286 was at that time repealed and had no application to the proceedings in the county court as they then stood.
The simple proposition involved in these contentions is, which statute is to govern the mode of service of the process of the court— the one in force at the time the petition is filed, or the one in force when the process is served upon the defendants'?
Counsel for relators contend that to permit the Act of 1905 to apply to the notice given and proceedings had in the county court after its passage would malee the act operate retroactively and bring it within the provision of the Constitution prohibiting the enactment of ex post facto laws. In our opinion that contention is untenable, for the reason that the Act of 1905 only changed the course of procedure in court, which may be lawfully done pending proceedings therein. This question was presented to this court in the case of State ex rel. v. Drainage District, 192 Mo. 517, and the court there ruled adversely to relators’ contention here. The same ruling was had in the following cases: Clark v. Railroad, 219 Mo. 524; State v. Taylor, 134 Mo. 109; Duncan v. State, 152 U. S. 377; State v. Thompson, 141 Mo. 408; State v. Jackson, 105 Mo. 196; Trust Co. v. Donnell, 81 Mo. App. 147.
If said statute was void, as insisted by counsel for relators, of which we entertain no doubt, then it could not deny any interested party a right to file or to be heard upon his exceptions, as it is suggested it might do. If they were in court then it was their duty to assail the unconstitutionality of said statute, if it had been interposed as a bar to their right to file their exceptions, or to their rights to be heard thereon. But the fact is the record discloses that no such rights were denied relator or to any others by means thereof. All who desired filed exceptions to the viewers ’ report, and were heard thereon. Independent of that, said section of the statutes was duly repealed by the Act of 1905', before mentioned, which took effect several months prior to the date of the filing of the viewers’ report. So, under no circumstances could or did said section deprive relators or any one else of the right to be heard upon their exceptions filed to the report of the viewers.
We must, therefore, hold against relators upon this contention.
V. The constitutionality of the Act of 1899 (Laws of 1899, pp. 278 to 298; art. 4, chap. 122, R. S. 1899), entitled, “ Lands, Swamp: Drainage. An act to repeal an act of the General Assembly of the State of Mis
(a) It is first contended that said act violates section 8 of article 4 of the Constitution of 1875, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in the title.’’’
Counsel state their position in that regard in this language: “The constitutional requirement that a legislative bill shall contain but one subject and that subject be clearly expressed in its title, was obviously ignored in the Act of 1899 (Laws 1899, p. 278). There is nothing in the title of that enactment indicative of a legislative design to repeal statutes governing the appropriation and disbursement of general county revenues. Yet sections 8299 and 8306-, Revised Statutes 1899, authorizing the payment of damages and initial expenses of drainage ditches out of the county funds raised by general taxation can only be upheld upon the theory that they by implication repeal sections 9283 to 9287, which require each fund to be sacredly devoted to specific uses, and forbid, under severe penalties, their diversion to other purposes.”
We are not quite sure that we grasp the full meaning of counsel’s language just quoted, yet we take it to mean that the act in question contains two subject-matters, namely, that said act not only authorizes the payment of the damages and initial expenses of the drainage ditches out of general funds of the county, but it also, by implication, repeals sections 9283 to 9287, Revised Statutes 1899.
And section 9286 provides for warrants to he drawn against the pauper fund, and prohibits the treasurer from paying them out of any other fund than the one against which they are drawn. And section 9287 provides how demands against the county may be presented and allowed; how warrants should be drawn by the court; and how they should be presented to and paid by the treasurer of the county.
If sections 8299 and1 8306 do not repeal sections 9283, 9286 and 9287, then, clearly, the foregoing position of counsel for relators is not maintainable and must fall. This presents the question, do the former sections repeal the latter, as contended for by said counsel?
It is not contended that they are repealed in express terms, nor is that true as a matter of fact, for the reason that the former in no manner refer to the latter sections. So, if they are repealed at all, they must be repealed by necessary implication, that is, there must be such a repugnancy and irreconcilable conflict between them that both cannot stand. [State ex rel. v. Hopkins, 87 Mo. 519.]
Is that true in this instance? We think not, for the reason that where by any fair interpretation all the sections of the statutes bearing on a given topic
Under this view of the law, the question naturally presents itself, can all of these statutes he so construed as to let them all stand? That is, can the money authorized to he p'aid hy sections 8299 and 8306 he paid hy the county treasurer without doing violence to sections 9283, 9286 and 9287? In our opinion it can he so paid without violating any one of the last three seo tions, and in this way. The demands authorized hy the two former sections could he presented to the county court for allowance; the court could allow it, and draw a warrant in favor of the claimant for the amount thereof against the contingent fund, provided for hy the fifth subdivision of section 9283, and the county treasurer could pay it out of that fund; and neither the county court nor the county treasurer would violate any law by so doing. The contingent fund was created to meet just such emergencies. [State ex rel. v. Bollinger, 219 Mo. 204.]
And the mere fact that the county is to he reimbursed by the district for the money so paid does not alter the situation in the least. A drainage district is a public and not a private corporation. [Morrison v. Morey, 146 Mo. 543; State ex rel. v. Drainage District, 192 Mo. 517; Land and Stock Co. v. Miller, 1701 Mo. 240.]
And the statute authorizing the county to pay out of its revenues claims of this character against such district does no violence to any constitutional provision to which our attention has been called.
It is well settled law, that money acquired hy a county from the taxation of its citizens is not the private property of the county, and an act of the Legislature directing such county to appropriate a portion of its funds so acquired to pay a part of the public expenses of a city within its limits is not an appropriation of public funds to private use, and is not the
And in the case of the City of Hannibal v. Marion County, 69 Mo. 571, this court held that the Legislature hadl the authority to say what shall he done with the taxes levied and collected from any county. There an act of the Legislature required the county to pay to the city out of the general revenue of the county the sum collected from the city for bridge tax and poll tax, and was not unconstitutional.
The rule announced in these cases clearly applies to the facts of this case. This district is as much a public corporation as were the cities of St. Louis and Hannibal; and the taxes collected by Chariton county were no more the private property of the county in this case than were the revenues involved in those cases the private property of Marion and St. Louis counties.
If the Legislature had the authority to apply the revenues of those counties for the purposes therein stated!, then for stronger reasons it had the authority to apply the revenues of Chariton county for the purposes herein stated, because the drainage district in question is not independent of the county, hut, upon the other hand, it owes its being to and is subject to its authority and control in the same sense in which townships of a county are subject to its control. It does not even have the independent government like townships have under the township organization. The county court administers its entire affairs, and the comity clerk keeps its records.
The cases before cited and the views expressed are not in conflict with section 46 of article 4 of the Constitution, as contended for by relators. That section reads as follows: “The General Assembly shall have no power to make any grant, or to authorize the making of any grant of public money or thing of value
That section of the Constitution does not prohibit the Legislature from making use of an individual or a corporation as a means through which it may apply appropriations to lawful purposes.
In the case of State ex rel. v. Seibert, 123 Mo. 424, it was held that a private corporation or individual may he the recipient of funds raised by taxation provided the use to which they are to he devoted is a public one. And in the case of State ex rel. v. City of St. Louis, 174 Mo. 125, it was also held that an ordinance of the city appropriating the expenses that a policeman incurred while in the performance of his duty as such officer, in removing a nuisance from a public street, as expressly required by law, was not a donation of public money to an individual in violation of said constitutional provision.
While this court in the case of State ex rel. v. County Court, 142 Mo. 575, held that an act of the Legislature transferring county taxes to the town of Kirkwood for street purposes Was a violation of said constitutional provision and void for that reason, yet that opinion was based upon the fact that the county in that case had no concern or control whatever over the streets of the town. In that case the streets were vested in the town, and its charter gave it the exclusive jurisdiction of and control over her streets.
But not so with these drain ditches. They are acquired by donation, purchase or condemnation, and the titles there are vested either in the drainage district or the county for the use of the public, and under the exclusive charge and control of the county court. The title to the same is not vested in the landowners of the district. That is made clear by the fact that, they may he and often are acquired by condemnation.
Nor has the drainage district itself any authority or control over the ditches, nor does the law require it to keep the ditches free from obstructions. That is obvious from the fact that it has no officers or means by 'which it could do so. It is without autonomy, and, as before stated, the exclusive regulation and control over these ditches is vested in the county court, and the Drainage Act imposes the duty upon it to see that they are constructed, maintained and kept free from all obstructions.
We have discussed these matters somewhat extensively for the purpose of showing that they are not only public corporations, but that they are under the sole and exclusive charge and control of the county court, and that the money the court is authorized to expend by said sections 8299 and 8306 is expended for a public and not a private use.
The very case cited and relied upon by counsel for relator, State ex rel. v. County Court, supra, recognizes the very distinction we have here drawn, and in express terms distinguishes that case from the cases of State ex rel. v. Seibert, and City of Hannibal v. County of Marion, supra, which we have before cited and discussed.
(bj But’ suppose we should concede that said sections' 8299 and 8306, in the particulars suggested by counsel for relators, were violative of said section 46 of the Constitution, still that fact would not have the effect of rendering the entire or any other portion of the Act of 1899 void under said section 28. In other words, the mere, fact that one or more sections of an act may violate a constitutional provision, such for instance as section 46, would be no authority or reason for holding that the entire act was double within the meaning of said section 28 of the Constitution, and void for that reason.
Clearly, as before stated, the act of 18991 does no' violence to said section 28 in any particular.
But returning to the concession mentioned. Under it, those parts of sections 8299 and 8306 which authorize the county court to pay the damages and initial expenses of the drainage district out of the county’s revenues would have to be stricken therefrom, and they would stand as though they had never been inserted therein by the Legislature. Waiving for the present the question as to whether or not the Legislature would have enacted them without those provisions, we will consider the effect that omission would have had upon them and the entire Act of 1899: The questions now presented are, would said sections be valid if those provisions were eliminated therefrom, and the Act of 1899 still be sufficient in its provisions to carry out the objects of its enactment?
The mere statement of the first question answers itself in the affirmative; and, as to the second, we are unable to see in what manner said elimination could have rendered the remaining sections and parts of sec
Concede all three of those suggestions to he true, still that would not render the entire act inoperative and barren, for the following' reasons: first, because all of the property-owners could and might, and in some eases I dare say have, donated the right of way for the ditch, and in such case there would he no necessity to condemn land for that purpose; second, there might he no damage whatever done to any property-owner, and even if there would he they could and might, if they saw fit to do so, waive all damages; and, third, the persons to whom the initial expenses would be payable could and might relinquish them, or they might he required to wait for their fees until the taxes provided for by the act could he collected, out of which they could he paid to them, instead of paying them into the county treasury for the purpose of reimbursing the county where it in the first instance pays such expenses. The books are full of cases which hold that officers and citizens may he compelled to serve the public in various capacities and wait for their fees or compensation until the necessary funds for their payment can be collected by taxation.
If all of these‘matters are true, of which we entertain no doubt, then it could not be seriously contended that the entire Act of 1899 ‘would be null and void even though the Legislature had omitted from sections 8299 and 8306 those portions objected to, for the reason that the act would still prescribe a complete rule of action capable of enforcement.
The only other point to be considered in this connection is, can it be successfully contended that the Legislature would not have enacted these sections of the act, nor the other sections of the act, had the parts objected to been omitted? In other words, were the parts objected to the inducing* or controlling cause of the enactment ? Certainly not, for the reason they relate only to some of the numerous means by which an end was to be accomplished, namely, the drainage of swamp and overflowed lands; and to hold they outweighed, with the Legislature, the object of the act, and all of the other means by which that object was to be attained, would be attaching undue importance to the parts objected to.
We, therefore, hold this contention of counsel for relators is unsound and untenable.
(c) It is next insisted by counsel for relators that the Act of 18991 is void because it authorizes the taking and damaging of the private property of the landowners of the district for public purposes without just compensation having been first ascertained and paid, which is in violation of the State and Federal constitutions.
This record does not show that any private property was taken or damaged for public use in the case at bar before just compensation was paid therefor. It should be remembered that this case is not an appeal from the proceedings to organize this district and the attempt to take the property of relators for the uses thereof, but that whatever lands have been taken or damaged were taken and damaged and paid for some
This insistence is also ruled against relators.
(d) The constitutionality of section- 8284 is assailed by counsel for relator in the following language:
“Condemnation proceedings are judicial proceedings and can be lawfully exercised only by courts or judicial officers. For this reason section 8284, Revised Statutes 1899, should be held void because it undertakes to control the decision of the county court, and! make such decision depend entirely upon the opinion and report of the viewers.” And in support thereof they cite the case of State ex rel. v. Nast, 209 Mo. 721.
The proposition of law announced in that case cannot be denied, but we are unable to see its application to the facts of this case, for the reason that we do not agree with learned counsel in the assertion that the decision of the court is controlled by the report of the viewers. While the decision is partly based upon said report it is not entirely so by any means. Interested parties have the right to file remonstrances or exceptions to and frame issues, introduce evidence and otherwise be heard upon the propriety, justice and legality of all such proceedings. The decision of the court is no more controlled by the report of the viewers than is the judgment of the circuit court in partition proceedings controlled by the report of the commissioners appointed by the court to view the land and make partition thereof among the parties interested. The report in that and in this class of cases constitutes important links in the proceedings, but neither controls the action or decision of the court, for the reason that sections 8286 and 8287, in express terms, upon the incoming of the report, make it the duty of the court to notify all parties interested that the report has been
This is not a new practice in this State. In most, if not in all classes of condemnation proceedings, the practice is to appoint a commissioner to view the premises sought, and report the benefits and damages which will result to the land of the interested parties, which, upon exceptions filed, the court may confirm or reject the report as law and justice may demand, just as was authorized and done in the case at bar. It would be a supererogation of labor to cite authorities in support of that well settled doctrine in this State.
A master in chancery performs the same functions in chancery practice that the viewers do in this class of cases, and we never before heard' of it being contended. that the laws which authorize such practice were unconstitutional and void.
We are, therefore, of the opinion that said section 8284 is not violative of section 1 of article 6 of the Constitution, as contended for by counsel for relators.
(e) The Act of 1905 is alleged to be unconstitutional, for the reason that the published journal of the House fails to show that it was read three times before passage, as required by section 26 of article 4 of the Constitution.
This contention is not tenable, for the reason that
While the endorsements made upon the bill in the Senate fail to show that it was read the third time therein before being placed upon its passage, yet the Senate Journal of 1905, page 542, shows that the bill was read the third time and then placed upon final passage and passed that body without a dissenting vote. So the disclosures made by the endorsements npon the bill itself and the record of the proceedings thereon had in the Senate, as shown by the Senate Journal, establish the fact that the bill was enacted in strict conformity to the said constitutional provision. This affirmative showing made by the endorsements upon the bill itself and from the Senate Journal should and does outweigh the negative showing made by the House Journal.
(f) The constitutionality of said article 4 of chapter 122 is assailed for the alleged reason that it is a local or special law within the meaning of section 53 of article 4 of the Constitution.
In view of the rulings of this court bearing upon that question, we are unable to lend our concurrence to that contention. These laws apply to and govern all persons equally who come within their scope. The test, under our decisions, as to whether a statute is local or general is, if it operates upon all persons alike who
(g) It is finally insisted by counsel for relators that said article is void for the reason that it offends against the XIV. amendment to the Constitution of the United States, which provides, among other things, that no state shall make or enforce any law which will ‘ ‘ deny to any person within its jurisdiction the equal protection of the laws.”
That provision of the Federal Constitution does not prohibit the legislature of a state from enacting a statute which embraces within its provisions all persons or things that naturally belong to the same class and are similarly situated, and whom it must affect equally and uniformly. [State ex rel. v. Standard Oil Co., supra, and cases there cited.] If we test this article by that rule, then it will be clearly seen that it does not violate that provision of the Constitution, for the reason that it applies to all persons and things of the same class who are similarly situated, and all such are affected alike.
We must, therefore, rule this contention against relators.
VI. The return of respondents shows that the original bonds issued and ordered to be sold by the county court, with which to procure funds to construct the drainage system, could! not be sold because of the smallness of their denominations, namely, $100 each.
On July 6th, 1905, the treasurer of the county duly notified the court of his inability to sell the bonds of
Counsel for relators assail all of those matters and insist that they are null and void because the court after setting aside the order of appropriation and sale of the bonds was powerless to make the second order of appropriation and for sale of the bonds.
In our opinion that insistence is unsound. The sale of the bonds and the appropriation of the proceeds thereof to the construction of the improvements were but so many steps to be taken in the completion of the purpose of the organization; and if those steps for any reason were misdirected or rendered ineffectual, then it was clearly the duty of the court to see that they were retraced and such other steps taken within the authority of the enactment ’which would carry out the purposes thereof. The county court not only had the authority to issue the bonds but it was its duty to sell them for the purpose of raising the necessary means with which to construct the ditch; and if for any formal reason the bonds issued could not be sold, then, clearly, there is nothing contained in the letter or spirit of the enactment which would prevent the court from ■ canceling the first issue and to reissue others in lieu thereof to suit the purchasers, so long as they are
The power to issue the bonds in the first instance includes the power to recall and cancel them if they cannot be sold advantageously, and to reissue others in lieu thereof for the same purposes for which the first were issued, but they must, as before stated, conform to the law and be embraced within the act mentioned.
Counsel also assails the validity of that part of the second order of appropriation and sale of the bonds, which directs said bonds to be sold “in denominations, size and mechanical structure to suit the purchaser thereof,” for the reason assigned, that “it is in direct conflict with the statutory provisions that the county court shall fix the denomination of the bonds in a sum not less than one hundred dollars nor more than five hundred dollars each.”
Counsel have not cited us to the statute which they assert was violated by the order above mentioned and we have been unable to find any such; but section 8301, Revised Statutes 1899, as well as section 8301a of the Act of 1905', on page 189 of the Laws of that year, authorize the county court to “issue said) bonds in denominations of not less than one hundred dollars, and sell the same to meet the expenses of locating and constructing any ditch or improvement under the provisions of this article, ” etc.
Counsel evidently are laboring under an erroneous impression when they say the statute limits the denomination of the bonds to $500 each, for the only limitation made by the statute is that they shall be in denominations of not less than $100. The court might
VII. The next insistence of counsel for relators, is that “owners of lands bordering a river have property rights in the stream in its natural state. This right is a property rig'ht which the Legislature cannot lawfully destroy without affording some means of compensation. ’ ’
Counsel for relators contend that no such compensation was awarded them, and for that reason the proceedings should be quashed, or at least that is what we suppose is meant by the use of the following language:
“There is nothing in the law of 1899 or in any of its various amendments providing compensation to landowners on this account, nor is there any other remedy available to the landowner whereby his damages on this score can be made good.”
There are two, if not more, complete and satisfactory answers that may be made to that contention.
(a) This record does not show that relators or any one else was damaged1 in the manner suggested by counsel. If there was no damage, then clearly they would not be entitled to compensation.
(b) We do not concur with the contention of learned counsel in that the law nowhere provides for the payment of compensation for whatever damages a landowner may sustain for being deprived of a stream of water which flows by or passes over his lands by reason of the construction of the drainage ditch.
Section 20 of article 2 of the Constitution expressly authorizes the taking of private property “for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law,” and section 21 of the same article provides “that private property shall not be taken
In pursuance to that constitutional mandate, the Legislature duly enacted' the drainage laws we now have’ under consideration. And whenever private property is about to he taken or damaged in consequence of said improvements, then in steps said section 21 and says all damages done private property by means thereof shall he first paid.
So under those organic provisions, when it becomes necessary for a drainage district to take or damage private property (whether it he water or land) for the purposes of its organization, it must first pay for the property to be so taken and the damage which will he done thereto in consequence thereof. If the value of the property to he taken and the damages which will be sustained cannot he agreed upon then compensation should he allowed for the same in the condemnation proceedings authorized by the acts of 18991 and 1905.
And independent of that, this court at an early day held that said section 21 was self-enforcing and requires no legislation to give it force and effect; and that where a statute or the organic law creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common law action which would afford him adequate and appropriate means of redress. [Householder v. City of Kansas, 83 Mo. 488.] Under that ruling injunction would have afforded rela-tors and all other interested parties perfect protection against all such damages mentioned by counsel for re-lators.
The point is therefore ruled against relators.
YIII. Counsel for relators contend that the Act of 1899 has no application to natural streams, and that the words “ditch, drain or water course” as used in section 1, on page 279 of Laws of 1899, did not include living streams.
And since this district was organized subsequent to the passage of the Act of 1903, it becomes unnecessary for us to determine whether or not section 8278, Revised Statutes 1899, authorized the county court to construct, straighten, widen, alter or deepen the Chariton river, a natural stream, etc., for the reason that said section was not then in force, but the Act of 1903 which in express terms authorized its improvement, provided it was not a navigable stream within the meaning of that act.
There is no pretense that said river is in fact navigable hut the contention is that it is in law a navigable stream. The basis of this contention is an act of the Legislature passed in the year 1845' (Laws 1845, p. 299). That act reads as follows:
“That the Grand Chariton river is hereby declared a public highway from its mouth, where it empties into the Missouri river, to the northern boundary of the State of Missouri; provided, however, that this act shall not be so construed as to affect the right of any person or persons who now have, or may hereafter have, a grist-mill or other machinery constructed on said river.”
There is nothing in this record nor in any public document or history of the State, to which our attention has been called, showing that the Chariton river in question is the Grand Chariton mentioned in the Act of 1845. It might be argued that they are one and the same river, for the reason that there is but one Chariton river in the State, and therefore the river in question was the river the Legislature had in mind. Assuming that to be true, the question then is, is the Chariton river a navigable river within the meaning of the Acts of 1903 and 1905 ?
The Act of 1845 does not so declare it to be a navigable river. The declaration there is that it is “a public highway.” Mr. Webster defines the word “highway” as, “A public road; a way open to all passengers. Syn.—Way; road; path; course.” And he defines the word “navigable” as, “admitting of being
The substance of the legal definition of the latter word, as given by Mr. Burrill, is, by the common law, a river is considered navigable only so far as the tide ebbs and flows into it. That is also the doctrine in several of the states, but not of this State. Here all streams which are actually capable of floating and of permitting the passage of ordinary boats upon the bosom of their waters are considered navigable rivers. [Hickey v. Hazard, 3 Mo. App. 480; O’Fallon v. Daggett, 4 Mo. 343.]
One of the elementary rules of statutory construction is, the courts should give to the words of the statute their plain or ordinary and usual meaning, the presumption being that the Legislature used them in that sense.
Tn the light of these definitions and well established rules of interpretation, can it be said that the Legislature intended to declare the Chariton River to be navigable by the use of the words in the Act of 1845 “a public highway?” We think not, principally for the reason that it was not navigable as a matter of fact, and to so construe the act in question would be to convict the Legislature of not only doing a useless thing, but also of enacting a most foolish statute, which is not tolerated by the canons of statutory construction.
If we view this act in the light of numerous other acts of similar import, enacted about that time, it will show that the Legislature was simply trying to declare the channels of all such streams to be public highways so as to preserve the free flow aud to preserve the use of the waters thereof unto the millers who had constructed grist-mills or other machinery along their banks.
The following among other acts are similar in character: Acts of 1839, pp. 81, 87, 88; Acts of 1841,
The Act of 1839 declared all tliat part of Fourche-a-enrtois creek below Sawyer’s Mill to be a “public highway. ’ ’ And the Act of 1841 declared! Apple Creek from its mouth to Ingram’s Mill to be “a navigable stream,” and so on to the end of the list. Almost invariably these acts refer to some mill or mill-dam; and some of them, after declaring the stream to be navigable or a public highway, then, in the same section, expressly authorize the construction or maintenance of a mill-dam or draw across the same, for the purpose of propelling mills and other machinery, according to the general law of the State in relation to mills and mill-dams.
When we consider the size, location and uses to which those streams were then being put, the eonclu-sion is irresistible that the Legislature never once thought of constituting and declaring them and- like streams to be public highways in the sense of navigability. No ordinary boat could ply any of them, and but few of them at ordinary stages of water were capable of floating an ordinary canoe, while some of them during the dry seasons would scarcely float a pill box. To hold under this state of facts that it was the design of the Legislature to constitute and declare these small rivers and creeks to be navigable streams within the ordinary meaning of those words would be absurd and a reflection upon the intelligence of the Legislature and upon the court that should so hold. But, as before suggested, the Legislature intended by those and similar acts to grant or license mill-owners along these streams who then had or might thereafter construct grist-mills along’ any of them, to construct and maintain mill-dams across the same for the purpose of conserving the waters thereof and generating power thereby with which to propel their mills or other machinery. This is the sensible view to take of all such
We, therefore, hold that the Chariton was not a navigable river within the meaning of said Acts of 1903 and 1905, authorizing the organization of drainage districts and the construction of drains as provided for thereby. Consequently, we also hold that neither of said acts exempted the Chariton River from the operation of the drainage laws of the State.
Counsel for respondents insist that the Legislature had no authority to establish and declare the Chariton River to be navigable, even though it had intended to do so by virtue of the Act of 1845, for the reason assigned, that the Federal Government alone possesses that power. Its failure to do so, and the sale and survey of the land through and over which it flows by the United States, conveyed the river as well as the adjoining lands to the purchasers thereof long prior to the passage of said Act of 1845. That being true, learned counsel insists that said act would be void even if it was the .intention of the Legislature to thereby establish and declare said river to be a public highway, for the reason that it would violate both the State and Federal Constitutions, which prohibit the taking of private property for public use without just compensation being first paid, which confessedly was not done by said Act of 1845.
As an abstract legal proposition, we think there can be no doubt but what that is true, but notwithstanding that fact, we are unable to see in what possi
W'e, therefore, rule this contention against respondents, but this ruling does not affect the ruling before announced regarding the navigability of the Chariton River.
IX. As stated in a previous paragraph of this opinion, all of the relators were notified of the filing of the viewers’ report made to the county court, and the date when the report would be considered by the court; and all of them paid the drainage taxes assessed against their lands. •
We will, therefore, omit the above mentioned matters from the subjoined table prepared from the record by counsel for relators, showing- the relation each of the relators has borne to this proceeding from its inception, towit:
Eobert Y. Bradley... M
E. D. Moore. .M
Lem Bayne ... .•. M
H. C. Sasse . M
W. F. Sasse. M
Edward Bucksath ... M
Wm. H. Bitter. M
Henry Berger . M
Carl Schulte. M
Peter Agee . M M
Steven Wilson. M
A. P. Arrington M M
Dan Cuddy ... M
Garth Cuddy. M
Josephine Brandt ... M M
W. T. Gribble . George Wayland MM
L. IT. Stenbach M M M
H. G. Hall. M
Pr. Eichter . X
J. D. Sharp. M
Holbert Miller. M
P. P. Harman. M
P. E. Harman.
William Garhart M
O. S. Guilford. M
Chris Noll. Andrew Wright M M MM
Peter Morgan . M M
Ambrose Jackson ... M M M
Martha Jackson M
Caroline Kuhlman .. M
E. W. Goll. M
Henry Goll . M
In considering this question, this court, in the case of State ex rel. v. Shelton, 154 Mo. 670, said: “While certiorari is the appropriate remediy where an inferior tribunal acts without jurisdiction or in excess of its jurisdiction, or when within its jurisdiction, but the action of such inferior tribunal cannot be reviewed on appeal or writ of error; yet in this State the law is also well settled that it cannot be used as a substitute for appeal or writ of error; and that, where such tribunal has jurisdiction and its action can be reviewed by appeal or writ of error, certiorari will not lie.”
It has been suggested, however, that an appeal would not lie in this class of cases.
In our opinion that is an erroneous idea. While there is no provision contained in the article under which this drainage district was organized, at the time of its organization, expressly authorizing an appeal from the judgment of the county court confirming or rejecting the viewers’ reports, which had the effect of organizing the district, yet as there was nothing in the statutes which withheld that right from all who considered themselves aggrieved by that action of the court, we think there is no doubt but what all of those
Section 1788, Revised Statutes 1899', provides:
“In all cases of appeal from the final determination of any case in a county court, such appeal shall he prosecuted to the appellate court in the same manner as is now provided by law for the regulation of appeals from justices of the peace to circuit courts, and when any case shall he removed into a court of appellate jurisdiction by appeal from a county court, such appellate court shall thereupon be possessed of such cause, and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court.”
The action of the county court in ordering the district to he organized was a final judgment and determination of the cause within the meaning of the section just quoted regarding appeals, and a fair construction thereof authorizes an appeal therefrom by those who are aggrieved thereby.
Section 4059, Revised Statutes 18991, gives the right of appeal from a judgment of a justice of the peace to the circuit court, which reads as follows: “Any person aggrieved by any judgment rendered by a justice of the peace, except a judgment by confession, may, in person or by his agent, make his appeal therefrom, unless otherwise provided by law, to the circuit court of the same county where the judgment was rendered; and like appeal may, be prosecuted from any judgment or order of such justice sustaining or overruling a motion to retax costs: Provided, the motion to retax costs shall have been filed within ten days
As before stated, it seems perfectly plain that all parties aggrieved by the judgment of the county court organizing the drainage district in question had the right of appeal under the general statutes relating to appeals, before quoted. [State v. Schnider, 47 Mo. App. 669; Railroad v. Railroad, 94 Mo. 535.]
X. Counsel for respondents interpose numerous questions of estoppel against relators, hut since we have taken their view of the case upon all other questions presented, as hereinbefore expressed, it becomes unnecessary for us to pass upon any questions of es-toppel. ■
Entertaining the views herein expressed, we, therefore, overrule the motion to quash the proceedings of the county court, organizing the drainage district in question," and we order that the writ of certi-orari heretofore issued herein be quashed and for naught held.
