State ex rel. St. Louis, Iron Mountain & Southern Railway Co. v. Sheppard

149 S.W. 456, 245 Mo. 50, 1912 Mo. LEXIS 217

• Court: Supreme Court of Missouri
• Decided: July 2, 1912
• Status: Published

Opinion

GRAVES, J.

— -This is an original proceeding instituted in this court hy relator, seeking to prohibit the respondent,.as judge of the circuit court of Butler county, from trying exceptions to the commissioners'’ report filed by land owners in the case of the Little -River Drainage District, assessing benefits and damages thereto by reason of the improvements to be made thereon.

We are by this -proceeding called upon to reconsider the right of a property owner, in a proceeding to incorporate and establish a drainage district,. to take a change of venue from the circuit court of the county where the proceeding was instituted, to the circuit court of some other county in the State; as well as to declare to what extent the change, when granted, carries the cause to the court to which the cause is sent.

In order to understand the question presented for determination, it will be necessary for us to briefly state the history of the Little River Drainage District.

In. 1905 some five hundred land owners of Cape Girardeau, Scott, Stoddard, New Madrid, Dunklin and Pemiscot counties filed in the circuit court of New Madrid county a petition praying for the incorporation and establishment of the Little River Drainage District, under Art. 3, Ch. 122, R. S. 1899, and amendments thereof, to embrace something over five hundred thousand acres of swamp and overflowed-lands, for the purpose of having said lands drained and protected from water and overflows.

All parties interested either signed the petition ashing for the incorporation, entered their appearance in the cause, or were duly served with process as required by law.

Five railroads cross or pass over the territory sought to be drained and reclaimed, among which was the relator.

Relator and two other railroads, and sixty odd individual land owners, filed objections to the formation and organization of the district as authorized by Sec. ■5499, R. S. 1909.

Louis Houck and wife were among the objectors and subsequently they filed an application for a change ■of venue of said cause from the circuit court of New Madrid county, because of the prejudice of the judge thereof, etc.

The petitioners for the incorporation and estab■lishment of the district resisted the application for the change of venue, and sought by an original proceeding in this court to prohibit-the judge of said court from granting said change. We denied the writ (State ex rel. v. Riley, 203 Mo. 175), and the court granted the change of venue, and sent the cause to the circuit court of Butler county.

After the cause reached Butler county the clerk of said court docketed said cause for the October term, 1907, thereof, since when said cause has been proceeded with in every respect as if it had originated therein, as provided for by Sec. 1935, R. S. 1909, which was then in force.

At said October term of said court the objections of the relator, as well as all the other objections filed, were, by the court, taken up and heard. Part of the relator’s objections were overruled and part of them were sustained. The relator duly excepted to the action of the court in overruling its objections.

On November 30, 1907, during said term, said court entered its judgment and decree in said cause, incorporating tbe territory described in tbe petition into a public corporation, as provided for by said chapter under tbe name of tbe “Little River Drainage District.” It was also further ordered, adjudged and ■decreed by tbe circuit court of Butler county:

‘ ‘ That tbe clerk of this court shall, within twenty days from tbe date of rendering this decree, prepare and transmit a certified copy of the record and decree, relating to tbe incorporation of tbe said Little River Drainage District, duly attested, to tbe Secretary of State of tbe State of Missouri; and that be shall file tbe same in bis office in tbe same manner as articles of incorporation are now required to be filed under tbe general law concerning corporations, and that a copy of said record and decree, together with a plat of tbe district, shall also be filed in each of tbe offices of tbe clerks of tbe county courts of Cape Girardeau, Bollinger, Scott, Stoddard, New Madrid, Dunklin and Pemiscot counties, all in tbe State of Missouri.

“It is further ordered, adjudged and decreed that tbe clerk of this court shall, within thirty days from tbe rendering of this decree and incorporation of tbe Little River Drainage District, call a meeting, upon fifteen days’ notice, by publication, in a newspaper as provided by law, of tbe owners of real estate situated, embraced and included in said drainage district, as provided by law, in some public place in such district, for tbe purpose of electing a board of five supervisors, to be composed of owners of real*estate embraced and included in said district and residents of tbe counties in which such district is situated.”

Prom that judgment, tbe respondent here appealed to this court, which was by this court, in Banc, affirmed. Thereupon tbe circuit court of Butler county ordered tbe clerk of said court to bold an election .for the purpose of electing a board of five supervisors, to represent and manage said district in carrying out the purposes of the decree, and in prosecuting the work for the reclamation of the lands embraced in the district. In accordance with said order of the court, the clerk duly called the land owners of said district together at Morehouse, on the 30th day :of December, 1907, for the purpose of electing said ..supervisors. At that meeting the land owners thus-called, duly elected John H. Himmelberger, A. H. Matthews, Charles W. Henderson, Alfred L. Harty and S. P. Reynolds, as such supervisors of said district. After duly organizing, said board of supervisors appointed a board of engineers and directed them to-make a topographical survey of the lands located within the district, together with maps and profiles, and '■a plan for draining and reclaiming said lands, as provided for by Sec. 5511, R. S. 1909.

This board of engineers, after a year’s labor, and at a cost of many thousands of dollars, surveyed and platted said lands and made a report to the- board of supervisors, and submitted with it a plan for draining the lands situated in said district.

The board of supervisors, after consulting with its board of engineers, and with some of the most eminent consulting engineers of the country, did, on November 15, 1909, approve and adopt the plan so submitted to it, and caused the same to be recorded by the secretary of said board of supervisors, and designated it as the “Plan for Drainage,” for said district, as provided for by Sec. 5512, R. S. 1909.

The board of supervisors, within twenty days after the adoption of said “Plan for Drainage,” viz.,. December 3, 1909, caused its secretary to file a certified copy of said “Plan for Drainage” with the clerk of the circuit court of Butler county, as provided for by Sec. 5514, R. S. 1909.

On the last-named date said board of supervisors, filed with the clerk of said court, a petition asking the judge thereof to appoint three commissioners to view the lands and property in said district and assess the benefits and damages that would inure to the same in consequence of said improvements, as provided for by Sec. 5514, R. S.. 1909. Within thirty days after filing said petition, to-wit, December 23, 1909, the respondent herein, as judge of said court, in vacation, took up said petition, and after due consideration appointed William C. Cracraft, M. O. Reed and Luther Conrad commissioners to assess said benefits and ■damages to said property within said district in consequence of said improvements, as provided for by Secs. 5514 and 5516, R. S. 1909. The order appointing said commissioners was duly filed in the office of the clerk of said court, and said clerk duly notified said commissioners of their appointment as such, and requested them to meet at the office of the secretary of the Little River Drainage District on January the 7th, 1910, for the purpose of qualifying and organizing as provided for by statute. In pursuance to said notice, said commissioners met at the time and places designated, qualified and organized as required by law, and elected William C. Cracraft chairman. The commissioners then entered upon the discharge of their duties and proceeded to inspect and examine the lands and other property located within the district, as provided for by said chapter.

In the discharge of their duties the commission■ers were accompanied by the secretary of the board of supervisors and by the chief engineer or one of his assistants, during the entire time they were performing their duties. They devoted about eleven months to this work at a cost to the district of about $75,000. While the commissioners were examining and inspecting the property of the relator, they were accompanied by the engineers and other of its representatives who-went with them over its entire property. .

On December 30, 1910, the commissioners finished their labors and filed their report with the clerk of the circuit court of Butler county; that court having” organized the district as provided for by Sec. 5516,. R. S, 1909.

Upon the filing of said report, the clerk of said court gave notice of that fact, by causing a publication to be made once a week for three consecutive weeks in a newspaper published in each of the counties having land within said district, as provided by Sec. 5517, R. S. 1909. Within ten days thereafter, the time allowed by statute for that purpose, two hundred and fifty land owners and the said railroads, including the relator, filed exceptions to the report of the commissioners.

Said exceptions were docketed and set down for trial at the April term, 1911, of said court. At that time the relator and other exceptors appeared in court and requested that the hearing and trial of the exceptions be postponed to the succeeding term, for the reason suggested, that there was then pending in the Supreme Court an appeal from the judgment of the circuit court of Holt county, in the case of the Little Tarkio Drainage District No. 1 v. Richardson et al., 237 Mo. 49, involving a further consideration of the-change of venue statute in relation to the formation of drainage districts.

Thereupon the respondent in this cause announced from the bench that the question of the change of venue in that cause had been settled by the Supreme-Court in the case of State ex rel. v. Riley, supra, and that in his opinion the circuit court of Butler county was the only court that had the power or authority to appoint commissioners and to hear and determine exceptions to the report thereof, but nevertheless ordered that all exceptions to the report be continued until the next term, awaiting the decision of this court in the case of the Little Tarkio Drainage District No. 1 v. Richardson.

Said exceptions were again set for héaring at the October term, 1911, of the circuit court of Butler county, and between the 3d day of November, 1911, and the 9th day of February, 1912, said court had heard and disposed of all the exceptions that had been filed to the commissioners’ report, with the exception of some six or eight parties, including the relator' herein. Some of those exceptions were tried by juries and the others by the court; all of which cost many thousands of dollars.

The owners of the land situated in said district have annually met ever, since 1907, and elected one of their number a supervisor for said district, as provided for by statute. The hoard of supervisors thus elected has performed all the duties and obligations imposed upon it by said chapter, and the amendments thereto, and has contracted and expended in behalf of the district for all purposes authorized by law a sum in excess of $100,000 at the time of the service of the writ of prohibition upon the respondent.

Respondent says that the district, through its hoard of supervisors, has made contracts and has expended said money and caused all of said work to he done in behalf of said district, “relying upon the: judgment and mandate of this court in holding in the case of State ex rel. v. Riley, supra, that the formation and establishment of a drainage district under Art. 3 of Ch. 122, R. S. 1899, was a civil suit, and as» such was governed by the law relative to changes of,' venue; and that the circuit court of Butler county he- • came possessed of the same jurisdiction and power in> all respects, after the venue had been changed to it,' that the statute had originally conferred upon the cir-' cuit. court of New Madrid county.

We have gathered these facts partly from the petition for the writ, and partly from the return of the respondent filed herein, and the remainder from the recital of- the facts of the case as they appear from the various opinions that have been written by this ■court in the cause.

The writ of prohibition in the present case was issued at the request of the relator, in order that the hearing of the exceptions filed to the report of the commissioners might be postponed until this court could pass upon the question of the change of venue presented by the appeal in the case of Little River Drainage District, J. H. Himmelberger et al., appellants, v. T. E. Tomlinson et al., respondents, just decided by this court, in Banc, qnd reported at page 1 ■of this report.

After a careful consideration of this case, we are ■still of the opinion that a land owner in a proceeding to incorporate and establish a drainage district, is entitled to a change of venue therein, the same as he would be in any other civil suit.

After a careful consideration of the question and •a most exhaustive review of the authorities, the Court in Banc, in a unanimous opinion, held in the case of State ex rel. v. Riley, supra, that a change of venue would lie in this character of cases, and we see no reason for changing our views upon that question.

. We also held in the case of Little Tarkio Drainage District No. 1 v. Richardson, supra, and Little River Drainage District, J. H. Himmelberger et al. v. T. E. Tomlinson et al., supra, that the granting of a change of venue in a case of this character ■carried the entire cause to the court to which the •change had been granted, and left no vestige of it in the court from which the change had been taken,’ and that the latter had no jurisdiction or authority to proceed further in the case. We still adhere to that view of the law.

We are, therefore, of the opinion that- the peremptory writ of prohibition should be denied, and that the preliminary rule heretofore issued should be quashed. It is so ordered.

All concur except Valliant, G. J., absent.