THE STATE OF MISSOURI at the relation of FRANK B. HARRISON, JOHN CAMERON, JOHN WINKLEMAN, JAMES CAMERON, WILLIAM WINKLEMAN, THOMAS JOYCE, NANCY WELLS, W. E. BATES, CHARLES WINKLEMAN, FRANK BATES and JAMES JOYCE, Relators, v. G. W. HILL, GEORGE CANNON, HENRY D. VOSS, JR., JOSEPH WOOD, and SAMUEL HAMMOND, Respondents.
St. Louis Court of Appeals
March 2, 1923
211 Mo. App. 623
2. MANDAMUS: Levees and Levee Districts: Board of Supervisors: Calling Annual Meeting of Landowners: Ministerial Act. The board of supervisors of a levee district incorporated under the provisions of Article 7, chapter 122, Revised Statutes 1899, now article 9, chapter 28, Revised Statutes 1919, in calling an annual meeting of landowners as provided in sections 4600-4603, Revised Statutes 1919, acts in a purely ministerial capacity, nothing being left to the discretion of the board as to the time of calling the meeting, but the mandate of the law is that such meeting shall be called in the same month of each year after the election of the first board, as the landowners have the right to have the meeting called as the law provides, and it is not for the board to say whether that time is an appropriate time, and mandamus lies to compel the board to call such meeting.
3. ——: Amendments: Alternative Writ: May be Amended. Inasmuch as the provisions of the Code, section 1290, Revised Statutes
MANDAMUS. ORIGINAL PROCEEDING.
PEREMPTORY WRIT AWARDED.
Plantz & Lamet, G. T. Llewellyn and John M. Dawson for relators.
The Board of Supervisors duties as to calling an annual meeting or annual election are purely ministerial there can be no two options on the proposition. “A ministerial act may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or exercise his own judgment upon the propriety of the act to be done. Black Law Dictionary and cases cited; 5 Words and Phrases (1 Series), p. 4523. Mandamus lies to compel ministerial duties. The recognized case of Marbury v. Madison, by chief Justice MARSHALL that mandamus would lie or not is to be determined “not by the office of the person to whom the writ is directed, but by nature of the thing to be done.” Mandamus lies to complete the performance of ministerial duties the nature of the act to be done here under sections 4600-4603, Revised Statutes 1919, are purely ministerial. Mandamus lies to compel the president of the counsel of the city of St. Louis to sign a house bill. State ex rel. v. Meier, 143 Mo. 439. Issuing processes is a ministerial act. 5 Words and Phrases (1 Series), p. 4524. Mandamus lies to compel the Secretary of State to perform a ministerial act—to issue private bankers certificates. State ex rel. v. Cook, 174 Mo. 100. Ministerial acts defined. 3 Words and Phrases
T. L. Montgomery for respondent.
(1) Mandamus is an extraordinary remedy and one who seeks its aid must show himself to have a clear legal right to the performance of the particular act the doing of which he seeks to compel. Unless relator‘s right thereto is clear, plain, and not doubtful, the writ should be denied. State ex rel. Kimbrell v. Becker, Sec. State, 237, S. W. 117, Decided by Sup. Court in Banc, Jan. 14, 1922; State ex rel. Davis v. Edwards et al., 206 Mo. App. 496; State ex rel. Hudson, 226 Mo. 239; Adair Drainage District v. O. K. Railroad, 280 Mo. 244. (2) The levee district was organized in the year 1903, under article 7, chapter 122, Revised Statutes 1919, and as to the time of calling the landowners’ meeting that law governs. The meeting therefore should be called under that act. The levee district has never re-organized under Acts of 1913. The rights of the district are reserved by section 53, Acts 1913, p. 320, also same law section 4650, Revised Statutes 1919. Secs. 52 and 53, Acts 1913, p. 320; Revised Statutes of Missouri 1919, sections 4649 and 4650; State ex rel. Kidder v. Inter-River Drainage District, 246 S. W. 282; State ex rel. v. Drainage District, 269 Mo. 459; State ex rel. Hill v. Pettingill, 270 Mo. 31. (3) The law requiring the calling of the landowners’ meeting is governed by the Act under which the district was incorporated. This law provides “Every year after the election of the first Board of Supervisors at such time and place in said district as the Board of Supervisors may designate and upon not less than 15
OPINION.
BIGGS, C.—Mandamus. Relators are the owners of certain lands situated in the Des Moines and Mississippi Levee District No. 1, Clark County, Missouri. They seek a writ of mandamus to compel the respondents, who compose the Board of Supervisors of the District, to call an annual meeting of the landowners in the district, as is required and provided by article 9, chapter 28, Revised Statutes 1919, and that said meeting be called in February, 1923, or as soon thereafter as time will permit, as provided by sections 4600 and 4603 of said article and chapter.
It is alleged in the application for the writ that the district was regularly incorporated by the circuit court of Clark county, Missouri, in the year of 1903 under the provisions of article 7, chapter 122 of the Revised Statutes of Missouri 1899, now article 9, chapter 28 of the Revised Statutes of Missouri, 1919, and that from the time of the incorporation of the district the corporation
It is further averred that the respondents refused to call said landowners’ meeting in the month of February 1923, although the relators on February 3rd filed written demand upon said respondents to call said meeting in the month of February, as required by law; that the respondents held a meeting on February 5, 1923, but refused to call said landowners’ meeting in the month of February or at any other time.
The respondents by their return to the alternative writ, after admitting that the district was organized under the provisions of article 7, chapter 122 of the Revised Statutes of 1899, avers that the district was never reorganized under the Act of 1913, which is article 9 of chapter 28 of the Revised Statutes of 1919. The return denies that the Board of Supervisors are required to hold the annual meeting in the month of February, and further denies that the Board of Supervisors is bound by the provisions of sections 4600 and 4603 referred to; that the annual meeting of the landowners is not affected by the provisions of article 9, chapter 28 of the Revised Statutes 1919, of which sections 4600 and 4603 are a part, for the reason that section 4650 of that article so declares; that the Act under which the levee district was incorporated and by the provisions of sections 8256 and
It is further averred in the return that the respondents on the 19th day of February, 1923, at a meeting regularly held, called a landowners’ meeting of said levee district to be held on Saturday, March 31, 1923, at the regular place of holding said meetings, and by order of record directed the secretary to cause notice to be published in accordance with the provisions of the law in such cases provided, which said meeting was called for the purpose of electing one member of the Board of Supervisors for five years, and to attend to such other business as may come before such meeting.
Further facts are set forth in said return, which are unnecessary to give in detail, which are stated for the purpose of justifying the action of the Board in delaying the holding of the annual meeting until March 31, 1923, and in which it is set forth that the last annual meeting of the landowners was held on February 18, 1922.
The relators have filed a motion to strike out respondents’ return, which is in effect a demurrer thereto.
It is the contention of the relators, that inasmuch as the annual meeting of the landowners of the district has heretofore been held in the month of February, that the respondents are required under the provisions of sections 4600 and 4603, Revised Statutes 1919, to call the annual meeting of landowners of the district in that month; that the district as organized is governed by the provisions of these statutes with reference to the question of calling the annual meeting; that section 4603 referred to provides that “in the same month of each year after the election of the first Board of Supervisors, the Board of Supervisors shall call a meeting of the landowners of the district in the manner provided for in section 4600;” that the duty of calling such meeting imposed upon the board by said statute is purely minis-
On the other hand, it is contended by respondents that inasmuch as the district was organized in 1903 under the law then applicable to levee districts, being article 7 of chapter 122 of the Revised Statutes of 1899, that the district is still governed by the provisions of that Act and is not bound in the matter of calling annual meetings by the provisions of sections 4600 and 4603 of our present statute; that under the old law under which the district was organized and by the provisions of section 8256 of the Revised Statutes of 1899, the time and place of calling such meeting is left to the Board of Supervisors. The latter section provides “every year after the election of the first board of supervisors, at such time and place in said district as the board of supervisors may designate, and upon not less than fifteen days notice, the owners of the lands in such district shall meet and elect one supervisor.” etc. It is therefore contended by respondents that the district is governed by this provision of the old law and that such statute leaves the matter of the time and place of holding the annual meeting of landowners to the discretion of the Board of Supervisors, and hence such discretion should not be interfered with or controlled by any action on our part.
The question involved is whether the respondents are governed in the matter of the time of calling the annual meeting of landowners by the provisions of article 9, chapter 28 of the Revised Statutes of 1919, our present law relating to levee districts, or by the provisions of the old law of 1899, under which the district was organized. Article 9, chapter 28 referred to, was passed in 1913, and is found in the Session Acts of that year, page 290. It appears from the Act that it was intended to repeal article 9, chapter 41 of the Revised Statutes of 1909, and also to repeal an Act amending said article 9 of the Laws of Missouri 1911 and all sections thereof, and to enact a
Section 53 of the Act of 1913 (section 4650, R. S. 1919) provides that “The repealing of existing laws shall not have the effect of suspending, abating, abridging, impairing, vitiating or nullifying any right, power, remedy or lien heretofore given, created or conferred upon any levee district heretofore organized or in process of organization at the time of the passage of this article, . . . but all such rights, powers, remedies and liens are hereby directly preserved to all such levee districts . . . All rights, powers, liens and remedies now existing in behalf of such levee district of this State may be enforced and made available in the manner and by the means and mode now provided by law, or such rights, powers, liens and remedies may be enforced and made available under the provisions of this article, if applicable, at the election of the board of supervisors of the levee district. This article is hereby declared to be remedial in character and purpose, and shall be liberally construed by the courts in carrying out the legislative intent and purpose, and its provisions shall be construed to apply to levee districts already organized or in process of organization at the time of the passage of this article.” (Italics ours.)
By section 4602, Revised Statutes 1919, it is provided that: “The provisions of this article shall apply to and become applicable to all districts heretofore organized, reorganized or in process of organization or reorganization, under the provisions of prior laws.”
The effect of section 4650, supra, is to preserve to levee districts organized under prior laws all rights, powers, remedies and liens bestowed upon them by such laws. If the question of the time of calling the annual meeting of the landowners of the district, and the duty imposed by the statute upon the Board of Supervisors in reference thereto can be properly said to be a right,
Prior to the enactment of section 4603 the law left it to the Board of Supervisors to call the annual meeting at such time and place as they may designate. By section 4603 the time of such meeting is definitely fixed, and must be held the same month of each year, thereby definitely fixing the time for the holding of such meeting for the purpose of electing a new supervisor, which was an additional benefit conferred upon the district as such. We think it was clearly the intention of the Legislature to permit and require districts organized under prior laws to be governed by the Act of 1913, at the same time preserving to such districts all their rights, powers, liens and remedies given and bestowed upon them by the laws under which they were organized. Such conclusion in nowise conflicts with what was said by our Supreme Court in the recent case of State ex rel. Kinder v. Inter-River Drainage District et al., 246 S. W. 282. It was there ruled that a drainage district organized under the Drainage Act of 1909 (sections 5496-5541, R. S. 1909) and which had not elected to recognize under the Circuit Court Drainage Act of 1913, was not required to build bridges in connection with its works of reclama-
It is however argued by respondents that even though sections 4600 and 4603 govern the Board in the matter of calling the annual meeting, still under the language used in section 4603 the time of calling the meeting is not mandatory. The latter section provides that “in the same month of each year after the election of the first board of supervisors, the board of supervisors shall call a meeting of the owners of land and other property in the district,” etc. We think it was clearly the legis-
It follows from what is herein said that the alternative writ heretofore issued should be made absolute. However, in view of the fact that by the respondents’ return it appears that they have already called a landowners’ meeting for March 31, 1923, the alternative writ will be amended so as to require the holding of a meet-
PER CURIAM:—The foregoing opinion of BIGGS, C., is adopted as the opinion of the court. The Alternative Writ heretofore issued is hereby amended as recommended by the Commissioner, and as amended is made peremptory. Allen, P. J., Becker and Daues, JJ., concur.