272 Mo. 304 | Mo. | 1917
This is an original proceeding by mandamus, whereby relators seek to compel respondents, as judges of the County Court of Cass County, to make an order organizing certain lands of relators and others situate in Cass County into a drainage district, under the provisions of article 4, chapter 41, Revised Statutes 1909, as amended by an act approved March 27, 1913. [Laws 1913, pp. 271-281.] This is the County Court Act, so-called to distinguish it from a similar but procedurally different proceeding whereof the jurisdiction lies in the circuit courts.
Upon the issuance of our alternative writ respondents demurred, thus in effect confessing, for the purpose of this inquiry, the truth of all allegations contained therein. The facts in the case are therefore to be found in the alternative writ. This writ is lengthy and since no point is made touching its form, we may more briefly state the facts by epitomizing it and making excerpts from it. Reached in this way, the facts run thus: Petitioners are the owners of certain swamp and overflowed lands situate on and along Big Creek, in Cass County, Missouri; desiring to ditch and drain said lands, and having in contemplation the construction of ditches and improvements more than five miles in length, petitioners to the number of more than five, being the owners of a majority in acreage of the lands, in the proposed district, filed with respondents, as members of the County Court of Cass County, a petition with the necessary allegations touching the nature of the proposed improvements and the route- and termini of the same. They likewise filed a proper bond, which was approved by respondents. Respondents thereupon, as such court,
After the filing of the report of the viewers and engineer, respondents made the proper orders of record, and caused a proper notice to be given by publication in a newspaper of the pendency of said petition, together with such other facts as are required in that behalf by the statute, and fixed a day at which the petition and the report of the viewers would be heard. Upon the day so fixed for the hearing of the petition “a remonstrance was filed by persons interested in land that would be affected by said proposed ditch and improvement, in which said remonstrance it was admitted that the proposed improvement contained swamp and overflowed land,” but said remonstrance objected to the location of the improvements, as fixed by the petition and viewers’ report, and set forth other grievances. Respondents thereupon proceeded to hear both the petitioners and the remonstrators, and at the conclusion of the hearing dismissed the petition, as will appear by their order made in the premises, which in full reads thus:
“Now on this 6th day of December, 1916, the day set for the hearing of the petition, the report of the viewers heretofore appointed thereon and any objections on the part of any of the landowners within the boundaries of the proposed drainage district who might remonstrate or object to the proposed improvement and report of viewers, and it appearing to the court that due notice of the filing of. said report was given*311 according to law, and come now the petitioners and also T; J. George, W. W. Linn, N. Mickelson, T. W. Dean, Clara Reed, Addie Harris, C. L. Harris, M. Gray, Mark H. B earner, N. N. Mills, G. W. Everett, H. K. Temple-ton, J. A. James, S. A. Thompson, Edna and W. E. Templeton, H. H. Sides, O. T. Sonther, as remonstrators, and filed herein their remonstrances and objections to the formation' and incorporation of said proposed improvements, and thereupon this cause is by the court now taken up for hearing and the court having heard the pleadings, evidence and arguments of counsel and being fully advised in the premises, doth find that the petitioners, and those joining by motion in the prayer of said petition, own a majority of the acreage of the lands within the boundaries of said proposed district, and the court doth further find by the great preponderance of the evidence adduced that the proposed ditch, .levee and other improvements are not necessary for sanitary or agricultural purposes, nor would they be of public utility, nor conducive to the public health, convenience or welfare nor are they practicable and the court doth find against such proposed improvements and doth dismiss- the said petition and proceedings at the cost of the petitioners.
“It is therefore considered and adjudged by the. court that the petition and proceedings be and the same are hereby dismissed and that remonstrators go hence without day and have and recover from and against the petitioners as follows: E. R. Clark, L. W. Bixler, S. R. Sankey, James S. Gosnell, Louise Naden, II. II. Hodgson, E. S. Burroughs, Ema Schappert, G. W. Lightner, U. J. Groves, M. E. Seaton, J. R. Beasley, Mabel Beasley, S. V. Tobin, Nellie Tobin, O. II. Beasley, D. E. Nichols, Mary Nichols, Geo. Dahman, John T. McDaniel, Pearl McDaniel, L. B. Singleton, O. E. Burris, H. J. Dahman, Millie Schmoll, Geo. W. Davis, Essie B. Hodgson, S. N. Mills, S. J. Mills, W; C. Johnson, R. B. Bronough, Independence Hunting Club, by Sami. H. Woodson, Pres., Attest. H. A. Major, Secretary, Jessie L. Kerr, by Chas. C. Clasby with*312 power of attorney, all costs and charges herein laid out and expended and that due process issue in this behalf.”
Thereupon E. R. Clark, and thirty-seven others, averring that it is the bounden duty of respondents, as judges of the County Court of Cass County aforesaid, upon the showing by them made to make an order organizing the proposed drainage district as a body corporate, and that they are remediless in the premises by and through any ordinary process or proceeding at law, prayed our writ of mandamus commanding respondents to find in favor of making the improvements, and in favor of incorporating said proposed district as a body corporate. Upon filing the above petition we issued our alternative writ, to which as stated, respondents have duly demurred, and therefore this case is here for determination upon the law applicable to the facts averred in the alternative writ. To the law of the case then we will address ourselves.
Relators, as we understand their position, insist that the amendment of 1913 (Laws 1913, p. 272), by providing that “if the court finds that the owners of a majority, in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said ditch or improvement, by motion, then the court shall, or if less than a majority, the court in its discretion may find in favor of making the improvement,” in a case which meets the conditions stated, has made it a mandatory and merely ministerial duty of the county court to order the
Bespondents contend, among other things urged, that the amendment of 1913 did not so- change the statute as to take away from the county court all discretion and make of the duties incumbent merely ministerial acts; hence they urge mandamus will not lie. They also contend that if the statute does have the effect to shear the county court of all discretion to determine questions of public welfare, health, utility, convenience and sanitation, then the statute is unconstitutional. This, for the reasons, (a) that it permits private persons to determine these questions of public use for themselves, and through the resultant construction of ditches on and across, and by levying taxes against, the lands of non-consenting citizens, takes the property of the latter without due process of law, ;(b) and that such a taking lacking a judicial determination of public utility would constitute the taking of the private property of a citizen for a private use.
As we gather the trend of relators’ argument, they do not contend that mandamus will lie, if the statute has left in the county court any discretion^ or if there are left to be determined any questions of fact; but in such case they, tacitly concede that it will not lie. If they do not concede this, the settled law which governs the issuance of the writ of mandamus concedes it for them. Bearing in mind that the county court did act, and did by the action it took refuse to organize the district upon the ground that the improvement prayed for did not involve matters of public use, and others involving a lack of public interests, which appears from the excerpt quoted from their order, we think there can be no doubt that if the court had any discretion left in it, and to be exercised
“It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion, the. officer cannot ordinarily be controlled with respect to the particular action he will take in the matter; he can only be directed to act, leaving the matter as to what particular .action he will take to his determination. Therefore, where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be, he has exercised his discretion, and his action is not subject to review or control by mandamus.” [18 R. C. L. 124.]
To this rule the only exception is that in some cases where discretion is involved and has been exercised, the law will yet afford relief by mandamus, when there has been a palpably arbitrary exercise of the discretion given in the very face of -the law and of the conceded facts. [State ex inf. v. Talty, 166 Mo. 529; State ex rel. v. Harris, 176 S. W. 9; State ex rel. v. Adcock, 206 Mo. 550; 18 R. C. L. 126.] But for reasons which are fairly apparent, we do not think the facts here present bring this case within the exception noted. Which brings the argument back to a consideration of the amendment of 1913, and the effect of this amendment upon the duty to exercise- discretion, with which the applicatory statutes concededly vested the county court before they were amended. This question is decisive of the case.
After a careful consideration of these statutes, and after construing them in pari materia, we are constrained to hold that they still make it the duty of the county court to exercise its discretion in any case and to make a finding (after hearing the evidence upon the question if'
Reading amended Section 5583, alone, and without reference to the context, or to the succeeding section of the same act, we would be forced to conclude that the Legislature intended to make mandatory a finding in favor of the incorporation of the district prayed for, in all cases wherein the owners of a majority of the acreage in the proposed district petitioned therefor. Such a view would render meaningless and wholly unnecessary the provisions of Section 5584, as amended (Laws 1913, p. 273), for, manifestly, if the county court is to be compelled .to incorporate a drainage district in every case wherein a majority of the owners of the acreage ask for such incorporation, any consideration of whether the improvement is “necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare,” goes out of the ease, and such finding (though the statute still says it is a condition precedent to the making of further orders in the case), is a wholly vain and futile thing. It seems impossible to reconcile these two sections with the view that the Legislature intended to take from the county court all discretion, and in effect vest in the owners of a bare majority of the acreage the right of passing upon
This view that the Legislature must have intended to leave to the county court, and not to the owner or owners of a majority of the acreage, the discretion to determine the existence of the public use is also aided by the fact that amended Section 5583 (Laws 1913, p. 272), provides-for the filing of remonstrances against the organization of the district, wherein the grievances of the' remonstrators shall be set forth in writing. If it is mandatory upon the county court to organize every proposed district, and if they have no discretion otherwise, when one owner, or five or more owners of a majority of the acreage petition therefore, it is difficult to perceive what relevant matters could be urged by the remonstra
Without doubt the Legislature has the right to declare by a general statute that the drainage of lands for sanitary or agricultural purposes is an act of public utility, that it constitutes a public use. For the Con
We conclude that as the amended statutes under discussion (Laws 1913, pp. 272 and 273) do not, when construed in pari materia and in the light of the Constitution, so change the law as to oust the county courts of all discretion in passing upon the question of whether there is a public use involved, mandamus will not lie to compel the county court to act in any particular way. Since, therefore, respondents have already exercised their discretion and have already passed upon this matter, our writ herein was improvidently granted, and it ought to be quashed. Let this be done.