State Ex Inf. McAllister Ex Rel. Manion v. Albany Drainage District

The Attorney-General, at the relation of certain individuals, has instituted this proceeding by quo warranto, alleging that the respondent is unlawfully exercising the franchises and privileges of a drainage district over the lands of the individual relators. The information admits the corporate character of the respondent as a drainage district under the laws of the State, but alleges that in its attempt to extend its boundaries and exercise authority over the relator's lands it is exercising powers not authorized by its charter.

The respondent was organized as the Albany Drainage District under a decree of the Circuit Court of Gentry County, May 22, 1917, under and in conformity with what is termed the Circuit Court Drainage Act (Laws 1913, p. 232). The district as originally organized comprised 5704.06 acres. On December 9, 1918, the Circuit Court of Gentry County rendered a judgment extending the boundary lines of said district so as to add thereto 11,039.22 acres, making the total area include 16,743.28 acres. More than 3350 acres of this addition are owned by the relators who are protesting, in this proceeding, against the inclusion of their lands in the district. The grounds of objection of relators against the legality of the decree of the circuit court making their lands a part of the district, may be summarized as follows:

1. That no plan was adopted by the district board of supervisors prior to the filing of the petition to extend the boundaries, for the drainage, leveeing and reclaiming the lands contained in the district organized as is required by Sections 9 and 10 of the Act of 1913, Laws 1913, page 237, no certified copy of a plan for reclaiming said lands had been made and transmitted by the secretary of the board to the circuit clerk, as required by Section 12 of said act, and no commissioners had been appointed to assess benefits and damages for the reclamation of said lands, as is required by Sections 12 to 16; and that until all said things were done and it had been shown that the cost of constructing necessary drainage works for the lands contained in the district did not exceed the benefits to such lands, the district could not be held to have been organized in good faith or had a right to corporate existence, under Sections 16 and 37; and hence the proceeding to extend the boundaries was premature, and should have been dismissed.

2. That the burden was upon the supervisors to demonstrate (1) that it was necessary for the proper reclamation of the lands within the district organized that its boundary lines be extended so as to include relators' lands and the other lands added; and (2) that the lands added by the extension of the boundaries would be benefited and reclaimed by the drainage works it was necessary to construct for the reclamation of the lands within the district; which the evidence fails to establish.

3. That in no event can the boundary lines of a drainage district be extended to include any lands which do not constitute a part of the "contiguous body of swamp, wet or overflowed lands or lands subject to overflow" prescribed by Section 2 of the Act of 1913, and the evidence shows that the lands added by the judgment of the circuit court do not, together with the lands contained in the district as originally organized in 1917, constitute a contiguous body within the meaning of said section.

4. That Section 40 of the Act of 1913, upon which the judgment of the circuit court is based, is a mere correction statute, designed to afford means for correcting errors in the plan for reclamation or in the decree of the court incorporating a drainage district, and does not authorize the court to extend the boundaries of a drainage district upon the petition of the supervisors alone, or upon the petition of the "owners of land adjacent to such district" alone, to extend the boundaries so as to include other large tracts of land.

5. That if Section 40 of the Act of 1913 authorizes the circuit court to extend the boundaries of a drainage district to include other large tracts of land, upon the petition of the supervisors alone, it is unconstitutional and void and in violation of the Fourteenth Amendment of the U.S. Constitution, in that it denies to the owners of the lands to be added the equal protection of the law and the equal privileges and immunities which Section 2 extends to the owners of the lands within the district, in that the owners of a majority of the acres described in the articles of association of a proposed district are by Section 2 given the right to prevent its organization, and Section 40 denies to a majority and to all the owners of the lands to be added the right to prevent the extension of the boundaries of a district so as to include their lands, thereby dividing a natural class into two subdivisions, and this results in administering the law in one way for one subdivision and in another way for the other subdivision.

6. That Section 40 of the Act of 1913, if it confers upon the circuit court legislative power to extend the boundary lines of a drainage district so as to add other large tracts, is a special law and violative of Subdivision 26 of Section 53 of Article 4 of the Constitution of Missouri, which forbids the General Assembly to pass any local or special law granting to any corporation, association or individual any special or exclusive privilege or immunity, in that it imposes no restrictions or limitations upon the extent to which the boundaries may be extended, and gives to the owners of the lands to be added no voice in the election of supervisors who are to have entire control of the location, dimensions and construction of drainage works through their lands and of levying taxes to pay for the same.

7. That the extension of the boundary lines of the Albany Drainage District, composed originally of 5704.06 acres, by adding 11,039.22 acres, without the consent of the owners of same and against the written protest of relators, and without a showing that such extensions were necessary for the efficient drainage and proper reclamation of the lands within the district organized, and without a showing that the lands in the extension would be fully protected and efficiently drained, and that the lands so added, together with those in the district organized, constitute one drainage unit, or contiguous body of swamp, wet or overflowed lands, was an arbitrary and oppressive and unreasonable exercise of the legislative power of the circuit court, as an administrative agent to extend the boundary lines of a drainage district, even if the Act of 1913 vests such court with legislative power, upon the petition of the supervisors alone, to extend the boundaries of a drainage district so as to include other large tracts of land; and that said extension was violative of Section 4 of Article 2 of the Constitution of Missouri, which declares that all persons have a natural right to life, liberty and the gains of their own industry, and violative of Section 30 of Article 2 of said Constitution, which declares that no person shall be deprived of life, liberty or property without due process of law."

The attitude of the respondent in its opposition to the foregoing contentions of relator may be thus summarized: —

1. That it was at the time the proceedings were instituted in the Circuit Court of Gentry County to extend its boundary lines, a legally incorporated drainage district, under the laws of this State. [Laws 1913, pp. 232-267.]

2. That the suit to extend its boundary lines resulted in a decree of said circuit court of December 9, 1918, extending said boundaries so as to include the lands of relators as set forth in this proceeding. That as such drainage district it was authorized to institute and prosecute said proceeding to the securing of the decree rendered therein. That this proceeding was under the authority of Section 40 of the said Drainage Act of 1913. That the petition contained the necessary allegations to effect the purpose intended; that due and proper notice was given of the suit; that the present relators appeared and filed their objections thereto, which were heard by the court and a judgment rendered in pursuance of said Section 40 of the drainage law of 1913, extending the boundaries of said district over the lands of relators and including same within said district.

3. That it is sought by relators to invoke quo warranto as a writ of review.

4. That the circuit court had jurisdiction to enter a judgment extending the boundary lines of respondent and in so doing acted within its jurisdiction; that no fraud was perpetrated upon it to influence or induce its action and its judgment is binding upon relators against all attacks as to sufficiency of evidence.

5. That if this court examines the evidence, the same will be found sufficient to sustain the judgment rendered.

6. That said Section 40 of the drainage act is a valid enactment and subject to none of the objections urged against it by relators.

7. That the inclusion of lands within a drainage district in no manner affects the owner's rights if his property is neither benefited nor damaged.

8. That Sections 2 and 40 of the drainage act refer to different matters and that the reading of Section 2 with Section 40 was not necessary to authorize the proceedings for the extension of the boundaries of the district. That Section 40 is complete within itself.

9. That Section 40 is not a mere corrective statute. While it provides a method for the correction of errors in the process of the organization of drainage districts, it also makes provision for the proceeding by which the boundary lines of a district may be extended to embrace lands not theretofore included in the original decree incorporating the district. That this law does not attempt to limit the quantity of land that may be included in a drainage district by extension where the facts warrant such a procedure.

10. That the facts at bar warranted the action taken and the judgment rendered herein.

I. A serious question confronts us at the threshold of this case, and that is the right of the State, through the Attorney-General, to institute this action. That the Attorney-General, without leave, has the right, at anyPublic time, to file in the Supreme Court an information inInterest. the nature of a quo warranto in any matter in which the public interest is involved, is too well established to admit of controversy. But, do the facts at bar, as presented by the pleadings, bring this case within that category?

In this connection it is well to understand what is meant by a "public interest," or an interest of a public nature. Early English cases, well in accord with American rulings, tell us that a matter of public interest means an interest in which a class or community has a pecuniary interest, in which their legal rights or liabilities, as a class or community, are thereby affected. [Rex v. Bedfordshire, 4 E. B. 541; Rex v. Labouchere, 14 Cox C.C. 419.]

Aside from the preliminary paragraph of the information, general in its nature and which alleges an exercise and usurpation of franchises and powers not authorized by its charter, there is nothing to indicate that the matter involved is of a public nature. The incorporation of the drainage district is admitted in the institution of the action against it in its corporate name, and in the averment which follows expressly alleging its corporate existence. That it possesses a corporate franchise, therefore, and has a right to exist as and exercise the powers of a drainage district, must be conceded. Hence the allegation that it is usurping or improperly exercising a franchise which is but its right to exist as an artificial entity may be excluded as an inaccuracy or as redundant and the pleading confined to an allegation of a misuse of its powers. This misuse consists, as alleged, in its extension under the forms of the law, of its boundaries, so as to include certain lands therein of the individual relators. This fact having been conceded, in what manner is the public interest involved as to authorize the invoking of quo warranto? Property may be said to be clothed with a public interest when used in a manner to make it of public consequence and thereby affect the community at large. [Munn v. Illinois, 94 U.S. 113, 24 Law Ed. 77.] While in form this proceeding is in behalf of the public to test a corporate franchise, the matters involved are mainly, if not altogether private and the public, neither in fact nor upon any substantial theory has any interest in the controversy. [State ex inf. Attorney-General Crow v. Railroad, 176 Mo. 687.] While a drainage district corporation is public in its nature, the exercise of its powers in the inclusion of additional lands within its boundaries, if in excess of the statute of its creation, is not such a misuser as to authorize the invoking ofquo warranto to forfeit its charter in the absence of any showing of a resultant injury to the public. The act, if committed by the corporation, as alleged, only calls for the redress of a wrong sustained by relators at the hands of the corporation. If guilty of a misuser of its franchise, it must be such as to work or threaten a substantial injury to the public. While it is true there is a presumption of a resulting public injury usually inseparable from the perversion, usurpation or non-user of a franchise, neither is shown under the facts at bar. [State ex rel. Crow v. Lindell Ry. Co., 151 Mo. 162; State v. R.R. Co., 50 Ohio St. 239; Greene v. People, 150 Ill. 513; State v. Railroad, 38 Neb. 437.] There is neither an assumption, nor an abuse of corporate power, but simply, according to relators' allegations, the violation of a private right. Under such circumstances, quo warranto will not lie. [State ex inf. Wear v. Bus. Men's Club, 178 Mo. App. 548, 163 S.W. 901.]

The question as to the propriety of the proceedings here invoked has several times been exhaustively considered by the Supreme and Appellate Courts of the State of Illinois. In People v. Cooper, 139 Ill. 461, a suit was instituted, questioning, byquo warranto, the enlargement of a drainage district. It was prosecuted on the relation of land owners, claiming that they were not within the same system of drainage. The Supreme Court of that State in ruling on this question, said in effect (139 Ill. l.c. 486), that "the form in which the information is presented would seem to indicate some misapprehension on the part of counsel as to the proper scope and object of a proceeding by quo warranto. This misapprehension is manifested by an apparent attempt to combine in the information matters which are properly remediable by this writ with mere private grievances of the relator, for which the law furnishes him a proper remedy, by a private action, either at law or in chancery. Quo warranto is not a remedy provided for the vindication of mere private rights. ``The State does not concern itself with the quarrels of private litigants. It furnishes them sufficient courts and remedies, but intervenes as a party only where some public interest requires action. Corporations may, and often do, exceed their authority, where only private rights are affected. When these are adjusted, all mischief ends and all harm is averted. But where the transgression has a wider scope, and threatens the welfare of the people, they may summon the offender to answer for the abuse of its franchise, or the violation of its corporate duty.' In those portions of the information to which the demurrer was sustained the relator attempts to set out and avail himself as a ground for issuing the writ, of the action of the commissioners in attempting to levy upon his land assessments in excess of the benefits which said land would receive from said proposed system of drainage, and that, too, without giving him notice or affording him an opportunity to be heard in relation thereto, and in instituting various proceedings for enforcing the collection of such assessments; in taking and appropriating to the uses of the district certain drains which the relator had already constructed on his own land, at a large expense, without compensating him therefor; in filling up and thus destroying the usefulness of one or more of said ditches, and also in taking portions of the relator's land for the construction of the ditches of the district, and damaging other portions of his land, without making or tendering him compensation therefor. These allegations, if true, simply show an improper exercise of corporate or official authority on the part of the commissioners for which the law furnishes the relator ample and sufficient remedies at his own suit, and which therefore constitute no ground for interference by the people in their sovereign capacity by quo warranto."

In People v. Drainage District, 193 Ill. 428, the court, after reviewing the Cooper case, supra, and a number of others, held that in the matter there under consideration, which involved the validity of the inclusion of certain other lands than those originally embraced in the incorporation, that it was clearly disclosed to the court that the suit was not one in which the public had an interest, but that it was brought and prosecuted for the benefit of certain relators who objected to proposed assessments and taxation for the construction of what was termed the North Ditch. The writ of ouster was therefore denied.

In People v. Drainage Commissioners, 31 Ill. App. 219, an action by quo warranto was brought to test the validity of the organization of a drainage district. The proceedings as in the case at bar, were conceded to be regular, i.e. in conformity with the statute. The irregularity in the incorporation of the district was alleged to consist in a failure of a proper number of land owners to sign the petition for the creation of the district. In regard to this matter the court stated that the proceeding being in the nature of a collateral attack upon the validity of the incorporation, was unauthorized. In disposing of the case, however, it was held that it might well be doubted whether the public had any interest in the matter. "While in form," as at bar, "the proceeding is in behalf of the people to test the right to a corporate franchise, yet in fact, the interests involved are mainly private, if not wholly so. The court may decline to proceed when such an aspect is disclosed. The issuance of the writ does not end the discretion of the court, and if the case made by the pleadings is such that leave to file would have been refused in the first instance, the court may abate the proceeding." The court having held, therefore, that the writ was improvidently issued, declined to grant the relief sought. [High, Extr. Rem., sec. 620.]

II. Drainage districts are public corporations or corporate subdivisions of the State, authorized to exercise the powers granted to them for the purposes of their creation, within their territorial jurisdiction, as fully and with likeCorporate authority as municipal corporations exercise theirActs. powers. [State ex rel. v. Little River Drainage District, 269 Mo. 444, 190 S.W. 897; Houck v. Little River Drainage District, 248 Mo. 373, affirmed, 239 U.S. 254.] Certain general rules, therefore, which the courts have established in regard to the exercise of the powers of municipal corporations are not inapplicable to drainage districts. For example, the validity of an act extending the corporate limits of a city so as to include farming lands, contrary to the owner's wishes, cannot be raised by quo warranto.

In discussing this question, the Supreme Court of Illinois, said: "In this case, there seems to be no question that defendants in error are legally and properly officers of the city, and there can be as little doubt that they may perform all the functions of their offices within the city limits, whatever they may be. If they attempt to pass and enforce ordinances beyond the bounds of the city, or to levy and collect taxes beyond the city limits, such acts would be unauthorized, and might, no doubt, be restrained on a bill properly framed for that purpose. But whether a law which purports to attach territory to the original corporate limits is or is not constitutional, cannot be determined in such a proceeding as this. If the corporate authorities shall attempt to enforce their ordinances against persons in the territory thus annexed, they may raise the question of the validity of the law on their defense, or if they shall levy and attempt to collect taxes on the lands embraced in the portion used for agricultural purposes, the taxpayers might, no doubt, file a bill to restrain their collection, and thus present the question whether the law is valid and binding." [People ex rel. v. Whitcomb, et al.,55 Ill. 177.]

The Supreme Court of Indiana held that the legality of the annexation of territory to a city cannot be questioned by quowarranto. The court, in discussing this question, said: "While the principles thus far established indicate the tendency to a somewhat liberal use of quo warranto informations, as a means of correcting the usurpation of corporate privileges, the courts will not entertain such informations for the purpose of interfering with or declaring void the legislative action of a municipal body, such as the common council of a city, The power of municipal legislation being properly vested in such a body, the courts will not permit the use of this remedy to inquire into or challenge the manner in which this power has been exercised, nor is it within the legitimate scope of the proceeding by information to declare null and void legislative acts of such a municipal body. Nor will the charter of a municipal corporation be forfeited by proceedings upon an information, because of the passage by the corporate authorities of an alleged illegal ordinance in which they have transcended their powers, the offense charged being at the most but an error of judgment, rather than a wilful abuse of power." [State ex rel. v. The City of Lyons, 31 Iowa 432; State ex rel. v. Town Council of Cahaba,30 Ala. 66; State ex rel. v. Shields, 56 Ind. 521; City of Peru v. Bearss, 55 Ind. 576; High on Extr. Legal Remedies, secs. 589, 618.]

Applying the foregoing rulings to the case at bar furnishes, in our opinion, ample reason why the writ should be denied. Other well founded rulings of our court, based upon different reasons than those stated, sustain this conclusion.

III. A drainage district is a municipal corporation, and the legality of its organization cannot be collaterally attacked or inquired into at the suit of individuals. [Barnes v. Mo. Valley Constr. Co., 257 Mo. 175, 165 S.W. 723, Ann.Collateral Attack Cas. 1915-C, 34; Coleman v. Blair, 245 Mo. 680; School Dist. v. Hodgin, 180 Mo. 70; Burnham v. Rogers, 167 Mo. 17; State v. Fuller, 96 Mo. 165; Catholic Church v. Tobbein, 82 Mo. 418.]

IV. The jurisdiction of the circuit court attached to the case at bar upon the filing therein of the petition to extend the boundaries of the respondent. Errors of fact, therefore, if any, which may have been committed by the court inJudgment: reaching its conclusion will not be inquired into,Review by either to arrest or disturb the force of theQuo Warranto. finding and judgment, or to correct a possible error of fact or law the court might have made in the inquiry, unless it appears there was illegality in the proceedings or that fraud was practised, which could not reasonably have been seen and averted. The court's action being judicial, its error, if error was committed, in the rendition of the judgment, cannot be brought to this court for review by the writ of quo warranto. This writ, as we said in State ex inf. v. Fleming, 158 Mo. l.c. 562, is in no sense a writ of review. In the Fleming case it was sought to assail the validity of an order of a county court in the matter of the incorporation of a city or town. The Supreme Court held "that to disturb the ruling or judgment of the county court through the office of the writ ofquo warranto, all the essential infirmities thereof, and iniquities therein, resulting from the manner of its procurement, or the fraud upon the court, must be alleged and proved with the same strictness that would be required in a bill in equity having for its object the annulment of the final judgment of any court of record of the State, brought about by fraud or collusion. An error of fact made by the county court in a matter of calculation, computation, or of numbers, or of law, upon the question, such as, who are and who are not ``taxable inhabitants' of a designated community, is no more fatal to the integrity, fidelity or conclusiveness of the judgment by that body, ordering the incorporation of the city or town, than would be like errors made by any other court of record of the State. These errors are matters of review upon appeal, where an appeal is provided for, but are not such as impeach the integrity of or go to the very life and existence of the judgment itself, as where fraud and collusion in the procurement of its order or judgment is alleged and shown. In cases of that character a judgment is declared void and of no effect, for the reason and upon the theory that fraud, having entered into it, as into any other transactions of life vitiates its integrity, destroys its validity; because the pretended is not the reality. Under those facts we would have no legal judgment of incorporation, hence no legal officer of the pretended corporation, and a writ of ouster under the inquiry byquo warranto would go against those making the assumption. But quite different is the situation where the attempt is to show that the judgment as entered ought never to have been made; that the corporation ought never to have been created; because the court having before it the facts and law for determination, erroneously construed their force and meaning." [State ex inf. Fleming, supra.]

In State ex rel. Rose v. Job, 205 Mo. l.c. 32, a proceeding byquo warranto was brought at the relation of certain private citizens to test the legality of the organization of a school district and oust certain officials thereof, by reason of the alleged illegality of the organization. Upon a hearing in the circuit court, the judgment of the county school commissioner and certain arbitrators, changing the boundaries of the district, was affirmed. Upon an appeal by the relators to this court, it was held: "It is clear that under the provisions of this section this court, by the writ of quo warranto, would not be authorized to review the error of judgment by such board of arbitrators. If the record discloses that the board of arbitrators acquired jurisdiction to determine the questions of difference submitted to them and they have rendered a judgment upon such questions, in the absence of a showing that the judgment itself was procured by fraud, then the decision of the board of arbitrators upon the questions of differences submitted to them becomes conclusive."

The rule as applicable to this subject was very clearly and correctly announced in State ex rel. v. Gibson, 78 Mo. App. 170. That was a case involving the powers of a school commissioner under a statute substantially the same as the one in the Job Case, and the court thus announced the law: "As to whether or not the school commissioner had ``sufficient evidence before him' to justify his action in changing the boundary lines between districts numbered 2 and 6 we have nothing to do in this proceeding. The statute contemplates a mere informal investigation by the commissioner as to the propriety of the changes. Having acquired jurisdiction of the matter, he is directed to ``proceed to inform himself as to the necessity of such proposed change, and his decision shall be final.' The record here shows that a dispute, or difference of opinion, had arisen between the different districts, or parts thereof, affected by the proposed changes; that these matters were referred to the respondent as county commissioner; that he proceeded to and did investigate and decide; and his decision therefore, must be treated as a finality."

Under the foregoing rulings, based upon a sufficient similarity of facts to those at bar, to render them precedents in the determination of this case, we are of the opinion that the writ of ouster prayed for herein, should be denied. It is so ordered. All of the judges concur