The petition for the establishment of the drainage district was filed April 23, 1906, and, omitting signatures, is as follows:
“To the Honorable County Court of St. Louis County, Missouri:
“We, the undersigned, landowners and citizens of St. Louis county, Missouri, do hereby petition your honorable court to construct a drainage ditch, as provided in article IY, chapter 122, Revised Statutes of Missouri, 1899, to drain overflowed land, including*321 Bosley and Kramm lakes, and to carry the waters of the Bonhomme creek to the Missouri River. Said ditch to commence on or about the land of John Bayer, north of milepost thirty-two of the St. Louis, Kansas City & Colorado Railroad, known as the Rock Island System. The ditch running east along the right of way to the Bonhomme creek, then in a northerly direction to the Missouri River. Said proposed ditch will be about four and one-half miles in length, and the same will be of great public utility, and will be conducive to the public health, convenience and welfare, and it is not desired to, issue bonds.”
With the petition the required bond was filed, and on May 7, 1906, the county court appointed qualified viewers and an engineer to view the premises and report as the statute requires.
Their report, filed June 18,1906, was, caption and signatures omitted, as follows:
“To the Honorable County Court of St. Louis County, Missouri:
“We, the undersigned, resident freeholders of said county, who were heretofore, on the 7th day of May, 1906, by order of this honorable court, appointed viewers to view the line of the proposed drainage ditch, respectfully report that before entering upon their duties as such viewers, they did take and subscribe an oath before the clerk of this court, as required by section 8280, R. S. of Missouri, 1899. That thereupon, under the directions of the said order of this court, certified by the clerk, they did on May 22, 1906, view the line of the proposed ditch as set forth in the petition herein, and report that by actual view of the premises along and adjacent thereto that the proposed improvement is necessary and practicable, and will be conducive to public health, convenience and welfare, and that the best route of the proposed ditch is as follows :
*322 “Beginning at a point in the land of John Bayer, northwest of milepost 32 of the Rook Island Railroad Company, thence running east and nearly parallel with said railroad, at an average distance of 200 feet from said railroad, through land of said Bayer, William Rickard, Mary D. Ficke, Lawrence Fick, Fred J. Broemmelsick, Georgia A. Stevens, Robert G. Coleman, P. A. Fick, Charlotte Fick, Mary Schaeffer, Chas. L. Boisselier, Alvina and Edgar Kessler, Leo Steiner, Jr., Wm. J. Kroenung, Otto Hohman, Louis Hartung, Damian Kroenung, ’ Frederick Kroenung, across the Kehr’s Mill road, Daniel Kroenung, to Bonhomme creek, thence in a northerly direction across land of Daniel Kroenung, Henry Blank, across Olive road, and Harry Ficke, Adam Steffan and Peter Steffan to the Missouri River.
‘ ‘ That the route of said proposed ditch will more fully appear from the plat hereto attached and made .part of this report, upon which plat said proposed ditch is indicated by a red line.
“Tour commissioners further report that such portion of said ditch should be covered where it crosses said roads, and the work of constructing the same should be let by contract without allotment.”
The plat alluded to was filed and is in the record here.
Upon the filing of this report, the county court fixed September 21, 1906, as the date for hearing the petition and report, and ordered the county clerk to publish a notice of the pendency of the said petition, the appointment and report of said viewers, the place of beginning, route and termination of said ditch or drain in the time and manner the statute prescribed. The notice published pursuant to this order was as follows:
“Notice is hereby given that there is pending in the county court of St. Louis county, Missouri, a petition signed by D. 0. Kroenung, John Bayer, Wm. J.*323 Kroenung, Walter S. Ficke, Lawrence Fick, and J. F. Brommelsick, to construct a drainage ditch, to drain certain overflowed lands, under chapter 122, article 4, of the Revised Statutes of Missouri, and amendments thereto, said ditch to commence on or about the land of John Bayer, north of milepost 32 of the St. Louis, Kansas City & Colorado Railroad Company, now known as the Rock Island System, the ditch running east along the right of way of the said railroad company, to the Bonhomme creek, thence in a northern direction to the Missouri River, the terminus thereof.
“That said petition was filed April 23, 1906, and that Henry Heinemann, Charles Wardenberg and J. J. Collins were appointed viewers and Wm. Elbring, a competent civil engineer, was appointed to assist said viewers, which said appointments were made on the 7th day of May, 1906, and that said viewers did, on the 18th day of June, 1906, file with the clerk of the county court their report, wherein they find that said ditch is necessary, practicable and would be of great public utility and would be conducive to the public health, convenience and welfare'; also reporting therein the best route for the proposed drain, that the portion crossing the public roads should be covered and that the work of constructing the same should be let by contract without allotment, and said report is now pending in the county court.
“Notice is further given that the said county court did, on Monday, the 27th day of August, 1906, by an order of record, fix Friday, September 21, 1906, at 10 o’clock a. m. in the county court room, as the time for the hearing of the petition and the report of said viewers.
“In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at office in Clayton, this, the 28th day of August, 1906.
“(SEAL) John Ruhl,
Clerk County Court.”
It will be observed that the original petition filed in the county court described the proposed ditch or drain as commencing “on or about the land of John Bayer, north of milepost 32 of the St. L., K. C. & C. R. R.; the ditch running east along the right of way to the Bonhomme creek, then in a northerly direction to the Missouri River,” while the report of the viewers and engineer appointed to determine, among other things, from actual view, “the best route for the proposed drain,” reported* that such best route was “as follows: Beginning at a point in the land of John Bayer, northwest of milepost 32 of the Rock Island Railroad Company, thence running east and nearly parallel with said railroad, at an average distance of 200 feet from said railroad through the land of said Bayer” (and nineteen other named persons) “to Bonhomme creek, thence in a northerly direction across the land of” (five named persons) “to the Missouri River.” This report referred to a plat-, filed with and made a part of it, “upon which plat said proposed ditch is indicated by a red line. ’ ’
Under the statute in force in 1906 (Laws 1905, p. 180 et seq.), after the report of the first viewers was filed, notice was required to be given (Laws 1905, p. 181, sec. 8281) “of the pendency of said petition, the appointment cmd report of said viewers, the place of
Under the statute in force (Sec. 8281, R. S. 1899) prior to the amendment of 1905, the notice of the pendency of the petition and appointment of viewers and the time when the viewers would make their report was required to be given in advance of that report. Notice of the report itself was not possible since the notice was given in advance of the filing of the report. Under the Act of 1905, however, the report of the viewers was required to be filed before the notice was given and notice of the report was required, as well as of the pendency of the petition and the time of the hearing. Under both statutes it was necessary to give notice of the place of beginning, route and terminus of the ditch or drain.
Under the statute of 1899 the only information the court had of the beginning, route and terminus of the ditch was that given in the petition filed and that was sufficient if generally descriptive thereof, and, consequently, a like approximation in the notice was sufficient compliance with the statute. [State ex rel. v. Taylor, 224 Mo. l. c. 462.]
The reason for the amendment in 1905 of the section affecting this question is clear enough. The Legislature intended that those interested should have notice of the report itself after it was filed and before the hearing. The report, in the nature of the thing, usually would be more definite and certain than the petition and of this more definite location the notice, under the amendment of 1905, would inform those concerned. This could be the only sound reason for delaying the giving of notice until after the filing of the report, and requiring notice of the report, and is the undoubted intent of the statutory command that notice of the report should be given.
It was at this time objections to the formation of the district were required to be made, if at all, and objections following the report of the second board of viewers went only to the correctness of the estimates of cost of location and construction and of damages and benefits and the fairness of the apportionment of the latter. [Laws 1905, p. 184, sec. 8288.]
•Was the notice given sufficient when examined in the light of the requirements of section 8281, as amended in 1905?
The plat filed by the viewers was, in legal effect, a part of the report they made. The statute did not require a plat to be filed, it is true, but it did require the viewers to report “the best route for the proposed drain,” and the viewers might report this wholly in words and figures, or they might, as they did, report it in words and figures and plats. The statute required them to locate what was, in their opinion, the best route, and was not greatly concerned with the form their report might take. The report, in this case, definitely located the route the viewers deemed the best.
• The original petition filed in the county court locates the route of the proposed ditch “along the right of way of” a named railroad. A fair interpretation of this quoted phrase is that it means the ditch was to be located adjacent to the right of way mentioned. If it did not mean this but meant only that the proposed ditch was to begin at some point on John Bayer’s
The report of the first board of viewers (including the plat made a part of that report) located the beginning point of the ditch northwest of milepost 32 a short distance from the north line of the right of way, and gave its first course as east and nearly parallel with the right of way, at an average distance of 200 feet from the north line thereof, the plat showing the exact location.
There was a material difference between these two descriptions. Several small tracts north of the railroad which would have been little affected by a ditch along and adjacent to the right of way were cut about in half by the ditch proposed in the viewers’ report and parcels were shorn from every tract adjoining the right of way.
The discrepancy between the route described in the petition and in the published notice and that described in the report of the viewers was material. Landowners might have had no objection to an open ditch lying adjacent to the railroad right of way but might well have objected to one cutting their lands in half or cutting considerable parcels therefrom and leaving the severed portion lying between the ditch and right of way.
The very reason for the amendment of section 8281 in 1905 was to provide that notice of the viewers’
certiorari Certiorari is the appropriate remedy. While an appeal lies from the county court in a proceeding to establish a drainage district the statute authorizing ^ distinctly specified the questions which may be considered by the court to which the appeal is taken and thereby denies any remedy by appeal for the insufficiency of the notice the statute requires to. be given, as has been expressly held. [Tie and Timber Co. v. Drainage Dist. Co., 226 Mo. l. c. 440, 444; Drainage Dist. v. Railroad, 216 Mo. 709.] The office of certiorari is to “bring the record of the proceedings of an inferior court or tribunal before a superior court to determine whether it had acted legally” (State ex rel. v. Edwards, 104 Mo. l. c. 126; State ex rel. v. Guinotte, 156 Mo. l. c. 526) and “the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction.” [State ex rel. v. Dowling, 50 Mo. l. c. 136.] In this case the county court was proceeding in invitum and not according to the course of the common law. The “fact of notice having been given in the mode pointed out by the statute is” a jurisdictional prerequisite the absence of which certiorari will reach (C. R. I. & P. Ry. v. Young, 96 Mo. l. c. 42) particularly in view of the fact that the record affirmatively shows no legal notice was given. The judgment is affirmed.
The foregoing opinion of Blair, C., is adopted as the opinion of the court.