State ex rel. Coleman v. Blair

151 S.W. 148, 245 Mo. 680, 1912 Mo. LEXIS 265

• Court: Supreme Court of Missouri
• Decided: November 14, 1912
• Status: Published

Opinion

BROWN, J.

— Civil action in the circuit court of Bates county to collect drainage taxes in the sum of $2659.20. Plaintiff had judgment below, and defendants appeal.

Plaintiff’s petition alleges the organization of Drainage District No. 1 in Bates county, Missouri, by the county court of that county of February 7, 1906, under the provisions of Art. 4, Ch. 122, R. S. 1899 (now Art. 4, Ch. 41, R S. 1909).

.The taxes sued for were levied by the county court in the year 1907, to pay bonds issued and sold to raise money to drain overflowed lands of defendants and other persons situated within said drainage district. These taxes remained unpaid on November 1, 1908, and this suit is to enforce the lien of said taxes against the lands of defendants.

Defendant Dewitt O. Blair filed a separate answer asserting ownership in himself of the lands described in plaintiff’s petition, and denying generally all other allegations therein. The other .defendants filed’ no pleadings and made no defense. For the purpose of this opinion, Blair -will be hereafter treated as the sole defendant.

The delinquent drainage taxbills upon which plaintiff’s suit is based, were introduced in evidence. Whereupon, to overcome the prima facie case thus made by plaintiff, defendant assailed the incorporation of the drainage district, and attempted to prove the invalidity of the taxbills by introducing the records of the county court and the petition, reports, notices and other proceedings which resulted in the organization of said drainage district and the assessment of benefits against his lands.

I. The defendant contends that the judgment of the county court organizing and incorporating the drainage district is void because:

(1) Only two of the three viewers appointed by the court to examine the lands sought to be drained, reported in favor of the necessity, utility and practicability of the proposition, while the third viewer made an adverse report on said proposition; and

(2) Sec. 5581, R. S. 1909, is unconstitutional, in that the notice therein prescribed is not due process of law. Defendant also asserts that the notice issued under said last named section was irregular and insufficient in both form and substance.

Neither of the issues thus tendered can avail defendant in this action, because a drainage district is a public corporation, and the legality of its organization and the sufficiency of its corporate existence cannot be inquired into in this collateral action. [State v. Fuller, 96 Mo. 16:5; Catholic Church v. Tobbein, 82 Mo. 418; Burnham v. Rogers, 167 Mo. 17; School District v. Hodgin, 180 Mo. 70.]

II. It is further contended that the length of time prescribed by Sec. 5587, R. S'. 1909, for the publication of notice to land owners of the date when they may be heard on the question of benefits assessed against their lands for the drainage of the same, is so short as to constitute the taking of property without due process of law, as prohibited by Sec. 30, Art. 2, Constitution of Missouri, and Sec. 1 of the Fourteenth Amendment to the Constitution of the United States.

Section 5587, supra, provides that notice to land owners of the application to incorporate .a drainage district “shall be published in four issues of some weekly newspaper published in the county, the last insertion to be before the day set for the hearing.”

From the phraseology of the statute quoted, it is evident that the last publication of the notice need not be on the last day before the day set for the hearing. Statutes of practically the same purport have been construed by this court to be complied with when the last insertion of the notice occurred ten days before the cause was set for hearing. [Robbins v. Boulware, 190 Mo. 33; Ratliff v. Magee, 165 Mo. 461.]

Thus it will be seen that the issue presented here is not alone whether section 5587, supra, is unconstitutional, but whether the notice as published and the judgment based thereon amounted to taking defendant’s property without due process of law.

' The hearing of objections by the land owners to the assessment of benefits against their lands was set for March 20, 1906', and the notice of said hearing was published in the' Rich Hill Enterprise on February 16 and March 2, 9 and 16, 1906. Defendant Blair resided in the State of New Jersey, and the time required to make the trip from New "Jersey to Bates county, Missouri, is thirty-sis hours.

What constitutes due process of law is in a large measure governed by the particular facts of each case. No general rule can be laid down that will cover all cases.

The defendant cites and mainly relies upon Roller v. Holly, 176 U. S. 398, which was an action to enforce a vendor’s lien against real estate in Texas owned by a party residing in the State of New Jersey. The statute of Texas prescribed five days’ notice; and the process in that case was delivered personally to the defendant five days before the action was set for trial. The distance between the place of trial and the place of service was so great that it would have required four days continuous travel for defendant to have been present at the trial. The process so served was adjudged insufficient because not allowing the defendant a reasonable time to employ counsel and attend the trial; and therefore was held not to be due process of law.

It will be readily seen that the facts in this case are entirely unlike the facts in Roller v. Holly, supra. There, the clerk of the court issuing the process' must have known that the defendant was so far away from the place of trial that he would need more than five days ’ time after service of process to go to Texas, employ counsel and prepare for his defense. The clerk knew where defendant lived; otherwise, he could not have forwarded the process to be served on him in New Jersey; while in the case at bar it does not appear that the clerk of the county court or the judges thereof had any knowledge of the whereabouts of defendant. It would certainly be a dangerous doctrine to announce •that constructive service by publication *in a newspaper might be rendered invalid because the defendant or other parties to be notified were so far away from the place where the court is sitting that the notice could not reach them in time to be effective.

In Wade on The Law of Notice (2 Ed.), Sec. 1029, it is said: “Publication is a means authorized by statute in most, if not all, the States of the Union, for obtaining constructive service of process, when from the non-residence, absence from the State, or absconding of the defendant, a more direct mode of service becomes impracticable. Service of summons in this manner is called constructive, not because the publication in the manner prescribed by statute raises any reasonable presumption that thereby the defendant is advised of the pendency of the suit, for its authorization is not confined to cases where .there is even a possibility of its ever coming to the knowledge of the party to be affected. The defendant may have removed so far beyond the confines of civilization that it would be impossible in the nature of things for the paper containing the first insertion of the notice to reach him before the return day, and it will still be as effective as though the paper came regularly to his hands.”

Defendant proceeds on the theory that the notice which he complains of wás no notice at all until it was inserted in the newspaper the fourth time. We do not think this proposition can be sustained upon authority or sound reason.

Undoubtedly the first, second and third publications of the notice performed some office. It is-well known that no one person reads all the newspapers, and that whether or not a defendant will actually see a notice to him when published in a newspaper is a matter of chance. He would certainly be as likely to see the notice when published the first time as any subsequent publication.

The usual rule is that when the law requires a notice to be published for a certain number of .weeks or days before legal proceedings are had, it is sufficient if the last insertion of the notice shall occur before such proceedings are had. [German Bank v. Stumpf, 73 Mo. 311; Drainage District v. Campbell, 154 Mo. 159; Harper v. Ely, 56 Ill. 179; Fry v. Bidwell, 74 Ill. 381.]

Defendant’s resonrcefnl counsel has called our attention to many statutes of Missouri prescribing how service may be had by publication; but he. omits Sec. 152, R. S. 1909, providing for publication of notice to creditors and others interested in proceedings to sell real estate of deceased persons to pay debts. That statute calls for a notice very much like the notice prescribed in the drainage law now in judgment.

To sell real estate through the probate court to pay debts it has never been deemed necessary to insert the notice of the proceeding in a newspaper more than twenty-eight days before the cause is set for hearing. If we were to adopt the rule for which the defendant contends it would probably invalidate a large number of the probate sales which have heretofore taken place in Missouri. [Young v. Downey, 145 Mo. 250.] We are not bound to follow prior decisions of this court if the law as' announced therein be erroneous; but we usually follow our precedents when to do otherwise would disturb a large number of titles. [Cruzen v. Stephens, 123 Mo. 337, l. c. 346.]

Upon the authorities hereinbefore cited and for the reasons noted in paragraph V of this opinion, we overrule defendant’s contention on this point.

III. Defendant contends that the notice as published fails to comply with sections 1770 and 1776 of our general code of civil procedure, citing Davis v. Montgomery, 205 Mo. 271, and many other cases defining the requirements of orders of publication under the foregoing sections.

It is manifest that the notice in judgment does not conform to the requirements of sections 1770 and 1776, supra; ,and this requires us to determine what kind of a notice is contemplated by Sec. 5587, R. S. 1909.

If Art. 4, Ch. 41, R. S. 1909, relating to the organization of drainage districts had simply required the notice under section 5587, supra, to be directed to the owner of the land, then said section would have to be construed in the same manner as orders of publication intended to notify non-resident owners in ordinary suits to collect delinquent taxes (Sec. 11498,' R. S. 1909). In other words, it would be necessary in organizing a drainage district to notify either the real or the record owners of lands situated in the district by their true names; or if their names were unknown, then it would be necessary to describe their interests or claims to such lands and how such claims oí interests were derived.

However, we find that the drainage law does not require the same kind of notice as in ordinary suits to collect back taxes; and the sufficiency of the notice now under consideration must be tested by the provisions of the drainage law. [Ratliff v. Magee, 165 Mo. 465.] Section 5584, which provides for the appointment of a surveyor and three viewers to survey and-estimate'the expense of draining overflowed lands and’ to assess benefits against same, provides that 'said viewers shall-in their report give “the name of the owner o.r owners of each tract of land and of any interest therein, so far as they are, by diligent effort, able -to ascertain the same. ” •

Section 5587, supra, provides that the clerk shall fix the time "for hearing objections to the assessment of benefits assessed against the lands within the drainage, district, and “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 like notice by name to all other persons “whom it may• in any manner be ascertained own such-land; or-any part thereof, or any interest therein;” and-also notify generally “all other persons, without mentionirig' their names, who may own such land, or-any part thereof, or any interest therein, notifying them of the general object and nature of tbe petition, and report of tbe 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.”

In construing this section, we must determine what is meant by requiring the notice to designate by name “all persons whom it may in any manner be ascertained own such land.”

Do these words require the viewers to go to the deed records and there ascertain who owns the lands against which they have assessed benefits? We think not. It is evident that the framers of this drainage law thought it would seldom or rarely be applied in draining lands which were unimproved or which were owned by non-residents. By requiring the viewers and engineer to ascertain and return the names of the owners, it was contemplated that said viewers and engineer should find out who were the owners of the land by inquiry of the persons in possession thereof or other persons within the drainage district. Sec. 5583, R. S. 1909, provides that after the first notice is given of the intention to organize the district, persons opposed to such organization may file their remonstrances with the court, and where such remonstrances are filed, it would under this law, become the duty of the clerk to notify the remonstrators of the date fixed for hearing objections to the assessment of benefits.

The provision in section 5587, supra, that all other persons shall be notified of the petition and assessment of benefits, “without mentioning their names,” indicates that it was not the intention of the framers .of this law to have the land records examined in order to ascertain who should be notified.

The word “may” is sometimes construed as mandatory, but more frequently otherwise. As used in the words of the' statute last quoted it does hot impose upon the clerk'of-the county court, the viewers, engiBeer or any other persons connected with the proceeding, the duty of examining the land records to ascertain the names of persons who own the lands against which benefits have been assessed. This point is ruled against defendant.

The sufficiency of the notice of the hearing on the assessment of benefits is also attacked on three other grounds: (1) that the notice was not published in the newspaper designated by the county court; (2) that the defendant was not named in said notice as published; therefore, as to him, it was not due process of law; and (3) that the notice was not returnable to the next regular term of court after its issue.

IV. The order of the county court of Bates county, directing the publication of notice of the assessment of benefits, directed the clerk to insert said' notice in the “Western Enterprise;” but it was in fact published in the “Rich Hill Enterprise.” Oral evidence introduced by the plaintiff proves that there was only one newspaper published in the city of Rich Hill, Missouri, using the word “Enterprise” as a part of its name, and that it was sometimes designated by the public as the “Western Enterprise,” and sometimes as the “Rich Hill Enterprise.” This variance in the name of the paper is not sufficient to invalidate the notice.

Wade, in his treatise on the Law of Notice (2 Ed.), Sec. 1067, correctly announces the law on this point as follows:

“A slight variance in the title of the paper in which the notice is directed to be published, from that by which it is really known, will not vitiate the process, where it satisfactorily appears that the publication was in the one intended by the order. As where the order designated the ‘Evening Day Book,’ and the notice was published in the ‘New York Day Book,’ there being no evidence offered that there was any other paper of the same or a similar name, to which the order eonld apply, this was held sufficient.”

V. The notice as published is directed to the estate of John I. Blair, John I. Blair’s heirs and numerous other persons owning land in the drainage district, and further purports to notify ‘ ‘ all other persons who own or have any interest in or to the following described real estate lying and being in the county of Bates and State, of Missouri, followed by a description of all lands in the district, including those involved in this action.”

Defendant earnestly insists that although the notice as published may have been in conformity with the drainage laws, nevertheless, it was not due process of law under the Federal Constitution, because the will of his father, John I. Blair, whereby defendant became invested with title- to the lands sought to be subjected to the lien of the taxbills, was on record in Bates county before any steps were taken to organize the drainage district; and therefore the notice should have been directed to defendant by name, instead of to the estate or heirs of his father.

This contention is entirely unsound. When a statute has required notice to be 'given in a certain form to absent land owners, such statute has almost universally been held to constitute due process of law.

Huling v. Kaw Valley Railway and Improvement Company,' 130 U. S. 559, was a suit under a statute of Kansas governing the condemnation and appropriation of lands for railroad purposes. That statute did not provide that the notice to absent land owners should designate them by name, but only required that such notice should give the numbers of the sections, townships and ranges through which the railroad would be constructed. The Supreme Court of the United States, in upholding the constitutionality of the above mentioned statute, said:

“The owner of real estate, who is a non-resident of the State within which the property lies, cannot evade the duties and obligations which the law imposes upon him in regard to such property, by his absence from the State. Because he cannot be reached by some process of the courts of the State, which, of course, have no efficacy beyond their own borders, he cannot therefore hold his property exempt from the liabilities, duties, and obligations which the State has a .right to impose upon such .property; and in such cases some substituted form of notice has always been held to be a sufficient warning to the owner, of the proceedings which are being taken under the authority of the State to subject his property to those demands and obligations. Otherwise, the burdens of taxation, and the liability of such property to be taken under the power of eminent domain, would be useless in regard to a very large amount of property in every State of the Union. It is, therefore, the duty of the owner of real estate, who is a non-resident, to take measures that in some way he shall .be represented when his property is called into requisition; and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. Such publication is ‘due process of law’ as applied to this class of cases.”

See also Leigh v. Green, 193 U. S. 79, and Johnson v. Hunter, 127 Fed. 219.

VI. This brings us to the further contention -of defendant that the assessment of benefits against his land is invalid' because the clerk of the county court fixed the date of hearing objections to said assessment of benefits at an adjourned sitting of said court instead of during “the next regular term” thereof, as required by Sec. 5587, R. S. 1909. ' ’

It is undoubtedly true, that where the law fixes a definite date on which a notice or other process shall be returnable, it cannot be made .returnable at a different date. [Holladay v. Cooper, 3 Mo. 202.]

Section 5615 (Art. 4, Ch. 41, E. S. 1909', in which said section 5787, supra, is found) provides that:

“The terms ‘regular session’ and ‘regular meeting,’ of the county court, as used in this article, shall be held to include the regular session of such court commencing on the first Monday in February, May, August and November of each year, as well as any adjourned term, provided for by the court when in session.”

It will be observed that said section 5615', supra, does not in express language declare that whenever the words “next regular term” are used in said Art. 4, supra, said words shall include adjourned o,r special sittings of the county court. However, the language quoted clearly implies that such was the legislative intent; and “whatsoever the law will imply is as much part and parcel of a legislative enactment as though in terms inserted therein.” [State ex rel. v. Mason, 155 Mo. 500; Sutherland on Statutory Construction, Sec. 334.]

The county court acquired jurisdiction over the matter of assessing benefits against defendant’s lands by fixing a date for the hearing and giving notice accordingly. Whether such hearing was at a regular or adjourned term did not affect the court’s jurisdiction.

We are fully aware of the rule that statutes which permit courts to acquire jurisdiction by constructive service must be strictly construed. That is indeed a valuable rule, but should not be followed to a point which would force the courts to disregard their reason and common sense.

The notice met every requirement of the law under which it was issued and published.

VII. Defendant also .complains of the action of the trial court in allowing an attorney’s fee in the snm of $1000 in favor of plaintiff and taxing same as costs in the case, as permitted by Sec. 5599', R. S. 1909.

The snit involved, directly and indirectly, the validity of taxes aggregating $16,000, and considering the number of issues tendered to defeat the plaintiff’s action, we think not only the evidence introduced but the facts disclosed by the record warranted the court in allowing the sum of $1000 and taxing the same as an attorney’s fee.

The judgment is affirmed.

All concur.