source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    In the Matter of the Petition and Articles of Association of the LITTLE RIVER DRAINAGE DISTRICT; OTTO KOCHTITZKY et al., Petitioners, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Now the ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, et al., Objectors, Appellants.
    In Banc,
    July 3, 1911.
    1. DRAINAGE DISTRICT: Petition for Articles of Association: Sufficiency. A petition for articles of association, and the' articles themselves, sufficiently state the manner of draining the lands, and sufficiently describe the beginning, course and terminus of the proposed drains, if they set forth particularly the facts that the statute requires to be stated therein, if the-statute itself is valid.
    2. --: -: Description of Lands and Drains: Survey,. The petitioners for the organization of a drainage district are-not required to anticipate and state facts in their petition which are not ascertainable until after the petition and objections have been passed upon. The law provides that after the district has been incorporated and the supervisors have been selected and the board organized, an engineer shall be appointed, and such engineer shall, for the first time, malte a survey of the’ district and submit to the board a plan for the reclamation and drainage of the lands remaining and included in the drainage district as organized; and it is not required that either the-petition or the articles should anticipate what those plans or-survey will be.
    3. -: -: Details. A petition for the organization of' a drainage district for the purpose of having the land within its limits “reclaimed and protected from the effect of water by drainage, ditches, levees, dykes or otherwise,” is sufficient without going into the details as to what ditches, levees and dykes are necessary, where they are to be located, how constructed, or what is meant by the “or otherwise,” without further stating whether the district is to be organized for sanitary or agricultural purposes, or for the general welfare by reclaiming and protecting the lands within its limits “from the effects of water by drainage or otherwise.” The statute-does not require such details to be set out in the articles of association.
    4. -: Objections: To Organization and to Including Objectors’ Lands. There is a radical difference in the character of the inquiry (1) as to why the district should not he incorporated and (2) as to why objector’s land or any part thereof will not be benefited by the proposed drainage and should not he included within the district. If no objections were made by the land-owners, it would still be incumbent upon the petitioners, to satisfy the court of the practicability of the proposed improvement; hut the land-owner can interpose objections to the-proposed organization, as well as to the inclusion of his lands, in the districts.
    5. -: -: To the Organization: Questions to Be Considered: Sufficient Objections for Review. In determining-whether the drainage district should be incorporated, the inquiry should not he unduly restricted. Evidence of any fact that would be a substantial reason against the incorporation is. competent. That the effects of the water are not so injurious as to justify the cost of the improvement; that the drainage of' the land is impracticable for want of sufficient fall to carry-off the water, or because of no outlet or channel into which the water may he drained; that other lands not included in-the proposed district would he benefited equally with those that are included, and probably many other facts, are competent upon the issue that the district should not be incorporated. But none of these facts can be considered on appeal if appellants’ objections are directed only towards the sufficiency of the articles of association and the petition therefor, and to. reasons why their lands should not be included within the, district.

      6. -: Articles of Association: Details of Plan.: Constitutionality of Statute. A statute which requires notice to the land-owner of the proposed formation of a drainage district, is not unconstitutional because it does not require the articles of association and the petition - therefor to inform the non-petitioning land-owners of the details of the plan of drainage before the district is formed.
    7. -: Public Benefits: Recitation in Statute: Reclamation: Police Power. It is not necessary to the validity of the drainage law that it recite the benefits to be effected by the drainage system. The police power of the State may be invoked to make swamp and overflow lands fit for use, productive and habitable. And the Act of Congress, of which the court will take judicial notice, ceded swamp lands to Missouri for the purpose of reclamation, and the State early set in motion a plan to carry out said purpose.
    8. -: Ownership of Land: Conflicting Evidence. Where there i§ evidence tending to show the defendant to be the owner of the lands as described in the articles of association, the Supreme Court will not review the conflicting evidence on that point.
    9. -: No Damage. Lands are not'to be excluded from the drainage district simply because they are damaged by water “only in high and unusual freshets.” The extent to which a tract of land will be benefited does not go to the question of the propriety of including it in the drainage district, but rather to the amount of benefits to be assessed against it as compared with other lands in the district.
    10. -: Including Lands Embraced in Another District. The fact that the land included in a drainage district forms a part of an existing district is not a valid objection to including it in the proposed district.
    11. -: Objections: Amendment During Trial. Objections had been filed by the land-owners two years before the trial and a change of venue had been awarded to another circuit court. After petitioners had closed their case, the objectors offered testimony tending to prove why the district should not be incorporated. That testimony being excluded for the reason the written objections did not raise such an issue, objectors asked leave of the court to amend their objections by adding one to the effect that “the proposed drainage of the land is not feasible, but highly impracticable.” Held, that the proposed change, being requested upon the eve of the submission of the case, would have materially changed the issues, and the court did not err in refusing objectors’ request.

      Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Affirmed.

      W. F. Evans, Moses Whybarh and A. P. Stewart for appellants.
    (1) The petition for articles of association of The Little River Drainage District fails to state the mode and manner of draining the district, and fails to contain a plain description of the commencement, the line and termination of the drains proposed, and the proceedings are void for that reason. Drainage, as to selection of routes, is entirely a different proposition to that of selecting a route for a street or other highway on land — everyone can locate a highway on land by boundary marks given, and be advised of its practicability and feasibility, but plans protecting lands from water can only be ascertained by scientific investigation, and taxpayers have a right to demand that before the enterprise is entered upon it shall have been •determined to be practical, and that the general character of the improvement shall be designated. They are entitled to pass upon the question whether or not the improvements shall be made, and they can exercise no intelligent judgment until they know the plan. They also have a right to have the plans fixed so that no departure from them shall be effected during the progress of the work. 2 Farnham on Waters and Water Rights, p. 1020, sec. 205, p. 1035, sec. 210, p. 1037, sec. 212. (2) In none of the proceedings by the petitioners for the incorporation of the district is any route' or plan designated. The petition asks for the incorporation of the district for the purpose of having the land within its limits “reclaimed and protected from the effects of water by drainage, ditches, levees, dykes or otherwise,” and for this purpose to dig the necessary ditches and trenches and throw np the necessary dykes and levees. It enumerates the means to-be employed to accomplish the result, but is silent as to plans. R. S. 1909, sec. 5496. (3) Any owner of real estate in the district, who has not signed the articles of association on or before the first day of the term of court he has been summoned to appear, may file objections to the organization, and assign reasons given him by the statutes, as follows: 1st, why the-drainage district should not be organized and incorporated; 2d, why his land or any part thereof will not be benefited by the proposed drainage; 3d, why his land should not be embraced in the drainage district and made liable to taxation for draining the same. R. S. 1909, sec. 5499. The only day he ever has in court to object to the organization, etc., of the district, is given to him by the above section. (4) He is given by the statute no right to contest the plan of drainage required to be made by the district after it is organized. R. S. 1909, secs. 5511, 5512, 5514. And to the report of the commissioners his only right is to except to any assessment for benefits or damages. R. S. 1909, sec. 5518. (5) Under the foregoing authorities the petition for incorporation failed to state facts sufficient to authorize the incorporation of the district as to the non-petitioning landowners, and it ought to have been dismissed as to these appellants. (6) If the petition is supported by the statute, as maintained by the petitioning landowners, then Secs. 5496 and 5499, R. S. 1909, are void for uncertainty as to these appellants, and all other landowners in the district who did not sign the articles of association, because these sections express no intélligent rule of action, and this court cannot supply such omissions in the statute. State ex rel. v. Railroad, 146 Mo. 155. (7) In the absence of plans of drainage submitted to the court with the petition, if such procedure is sanctioned by Sec. 5496, and other sections of Art. 1 of Chap. 41, R. S. 1909, relating to the organization of the district, then' these statutes, as to the appellants who did not sign the petition, deny to them their day in court, according to authorized procedure granted by Sec. 5499 of the statutes,' and deprive them of their property without due process of law. They would have no intelligent way of supporting their objections by showing why the drainage district should not be organized and incorporated, or why their land or any part thereof would not be benefited by the proposed drainage, or should not be embraced in the district and made liable to taxation for draining the same, as provided in Sec. 5499, and the effect of the statute would be to condemn them without hearing, proceed against them without inquiry, and render judgment against them without trial; and the statute would violate the Constitution of the State.- Constitution, art. 2, sec. 30; St. Louis v. Richeson, 76 Mo. 470; Asphalt Co. v. Ridges, 169 Mo. 376; Bank v. Cornwell, 126 Mo. 43; Jones v. Gore, 142 Mo. 38; Henning v. Stae.d, 138 Mo. 430; Kuntz v. Sumption, 2 L. R. A. (Ind.), 655; In re Gannon, 5 L. R. A. (R. I.) 359; Ullman v. Baltimore, 11 L. R. A. (Md.) 244; Gillman v. Tucker, 13 L. R. A. (N. Y.) 304. (8) The statute, under the facts in this case, also violates Sec. 1 of Art. 14 of the Amendments to the Constitution of the United States which prohibits the state from depriving any person of property without due process of law, or denying to any person, within its jurisdiction, the equal protection 'of the law. The proceeding in this case, if sanctioned by the statute, cannot be maintained as to these appellants under the pleadings and evidence without violating Sec-. 1 of that amendment, since no opportunity has been afforded them to have a hearing. U. S. Constitution, art. 14, sec. 1; Bannon on the 14th Amendment, pp. 139-144; Ins. Co. v. Daggs, 172 U. S. 563. (9) The legislative authority to enact drainage laws is derived from the police power of the State. Land Co. v. Miller, 170 Mo, 253; 2 Farnham on Waters and Water Rights, p. 902; Hamilton, Law of Special Assessments, sec. 263, p. 222 and sec. 43, p. 31; Drainage Dist. v. Shroer, 145 Ind. 572; Zigler v. Mengers, 121 Ind. 99; Railroad v. People, 200 U. S. 561. (10) Art. 1 of Chap. 41, R. S. 1909, is not for the public benefit. It does not purport to be an exercise of the police power; it nowhere provides that the drainage shall be for the benefit of the public health, public morals, public safety or for the general well-being of the community. Statutes which authorize the drainage of land without requiring that the proposed drainage shall benefit the public health or otherwise be of public utility, are unconstitutional. In re Drainage Dist., 90 Wis. 301; Reeves v. County, 8 Oh. St. 333; Thompson v.' County, 11 Oh. St. 678; Drainage Dist. v. Shroer, 145 Ind. 572; Fleming v. Hull, 73 Iowa 598; Kinnie v. Bare, 68 Mich. 625; Tillman v. Kircher, 64 Ind. 104; Wishmier v. State, 97 Ind. 160.

      Oliver & Oliver for respondents; J. M. Blazer of counsel.
    (1) The Legislature has the inherent power, in. the first instance, to organize and establish drainage districts, levee districts, special taxing districts, etc., and to charge the costs of constructing the local improvements, in whole or in part, to the property within the limits of such district. St. Louis v. Russell, 9 Mo. 507; St. Louis v. Allen, 13 Mo. 400; Giboney v. Cape Girardeau, 58 Mo. 141; Kelley v. Meeks, 87 Mo. 396; Levee Co. v. Harden,. 27 Mo. 495; Columbia Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 561; Land Co. v. Miller, 170 Mo. 240; Prior v. Construction Co., 170 Mo. 451; Page & Jones on Taxation by Assessment, p. 892, sec. 553; Construction Co. v. Shovel Co., 211 Mo. 524; Meier v. St. Louis, 180 Mo. 391. (2) Since the Legislature has the inherent power and right to organize and create drainage districts directly, it also has the power and authority to delegate to snch agency of the State as it may name, the right and power to organize and create such districts for it. This has long been the law in this State, as well as elsewhere, and the constitutionality of such a law cannot now be successfully questioned. Levee Co. v. Harden, 27 Mó. 495; Laws 1859, p. 284; Columbia Bottom Co. v. Meier, 39 Mo. 53; Laws 1879, p. 132; Land & Stock Co. v. Miller, 170 Mo. 240; sec. 5496, R. S. 1909; Morrison v. Morey, 146 Mo. 561; Ross v. Board, 1 L. R. A. (N. S.) 431; State v. King, 37 la. 462; Hagar v. District, 66 Cal. 54; Voigt v.' Detroit, 123 Mich. 547, 184 U. S. 115; Hagar v. District, 111' U. S. 701; Irrigation Dist. v. Bradley, 164 U. S. Ill; Page & Jones, Taxation by Assessment, p. 905, sec. 555-6; 2 Farnham on Water and Water Rights, sec. 170; Shaw v. State, 97 Ind. 23; Crites v. State, 97 Ind. 389; District v. Hagar, 66 Cal. 54; Meranda v. Spurlin, 100 Ind. 380; Hudson v. Bunch, 116 Ind. 63; Buchanan v. Boeder, 97 Ind. 605; Hagar v. District, 111 H. S. 701. (3) The constitutional right of notice and to contest the amount of the benefit assessed against appellant is given it by Secs. 5517' and 5518, R. S. 1909, but it has no constitutional right to appeal from the legislative act, or the act of a duly authorized agent .of the Legislature, incorporating the district. Williams v. Eggleston, 170 U. S. 340; Page & Jones on Taxation by Assessment, sec. 739; Construction Co. v. Shovel Co., 211 Mo. 524; Meier v. St. Louis, 180 Mo. 391. The statute does not deny the non-petitioning landowners their day in court. It is again given a day in court and an opportunity, by sections 5517 and 5518, to object to any assessment that may be made. An opportunity, we may say, dehors this record it has availed itself of. Page & Jones, Taxation by Assessment, sec. 743; Land Co. v. Miller, 170 Mo. 240; Spencer v. Merchant, 125 D. S. 345. It is not necessary that the statute should require the recital in the petition or articles of association, that the contemplated improvements would improve the public health, convenience and welfare of the community. The Legislature might have done so, but its failure to do so in no way impairs the validity or constitutionality of the act. The reclamation of these lands by a system of drainage will enure to the public good, not only by rendering them suitable for agricultural purposes, but will also very materially benefit the public health and prosperity of this State by the enhancing of its revenues. All of this the State can do under its police power, and without making any reference to or recital of the same in the statute. The public health may be, and ought to be, an important factor in the consideration of statutes of this kind. The drainage of large tracts of overflowed land will operate beneficially to the public health and welfare of the State. Either of these reasons are sufficient to support and sustain legislation on that subject, whether recited in the statute or not. Land Co. v. Miller, 170 Mo. 240; State v. Commissioners, 60 L. R. A. 161; Wurts v. Hoagland, 114 U. S. 606; Irr. Dist. v. Bradley, 164 U. S. Ill; Hagar v. District, 111 U. S. 701; Head v. Mfg. Co., 113 Ú. S. 9; Hagar v. County, 47 Cal. 222; Irrig. Dist. v. Williams, 76 Cal. 360; In re Irrig. Dist., 92 Cal. 296; Cooley on Taxation (2 Ed.), p. 617; Cooley’s Const. Limitation (6 Ed.), p. 704; 2 Farnham on Water and Water Rights, sec. 170; Wilson v. Dist., 113 111. 443; Railroad v. Illinois ex rel., 200 H. S. 561. (4) The petition and articles of association in this case follow the statute and the precedent established in Land Co. v. Miller. This is sufficient. Land Co. v. Miller, 170 Mo. 240; Ross v. Board, 1 L. R. A. (N. S.) 437; Voigt v. Detroit, 123 Mich. 547,184 U. S. 115; Hagar v. Dist., Ill U. S. 701; State ex rel. v. County, 41 Ohio St. 423. (5) The only thing appellant or any other landowner in the district could inquire into at this stage •of the proceeding, — the incorporation of the district,— was as to whether or not its land and property would he benefited by the incorporation of this district, and by controlling and keeping off the- waters that' constantly affect and surround some parts of its property all the time and other parts of it for many months during the year. This information, however, could not be obtained until after the district is organized, and it is both unreasonable and unjust to assume that this information should be stated in advance in the petition, or in the articles of association seeking to establish the district. Secs. 5507, 5508, 5509, 5510 and 5511, R. S. 1909; Ross v. Board, 1 L. R. A. (N. S.) 431; State ex rel. v. .Stewart, 74 Wis. 620.
   KENNISH, J.

This is an appeal from a judgment of the circuit court of Butler county, ordering, adjudging and decreeing the incorporation of The Little River Drainage District, a corporation organized under the provisions of article 1, chapter 41, Revised Statutes of 1909, for the reclamation of about five hundred thousand acres of swamp and overflowed lands in the southeastern part of this State. The lands sought to be reclaimed are in the counties of Bollinger, Cape Girardeau, Stoddard, Scott, New Madrid, Dunklin and Pemiscot. They form a contiguous body of land from one to eleven miles in width, extending in a southerly direction for a distance of about ninety miles, from Cape Girardeau on the north, to the boundary line between Missouri and Arkansas. Streams and watercourses heading in the higher adjacent territory carry their waters to these low lands where, because of insufficient channels, the waters overflow and render much of the land uncultivable and uninhabitable. This land has a uniform fall to the south of about one foot to the mile and therefore is susceptible of drainage.

A larger area of the lands in the proposed district being situated in New Madrid than in any other county, the petition, in accordance with the statute,, was filed in the office of the clerk of the circuit court, of that county. All of the non-petitioning land-owners, except those who had waived service and entered their appearance, were duly summoned to appear before the circuit court of New Madrid county at the-March term, 1906.

Among other objectors, appellants, The St. Louis,. Memphis and Southeastern Railroad Company, St.. Louis and Gulf Railway Company and John V. Filley,. trustee under several mortgages upon the said railroads, appeared at the March term of said court and jointly filed objections to the petition and articles.of association. On the application of one of the individual objectors a change of venue was awarded to the-circuit court of Butler county, in which court, upon the-day of November, 1907, upon a hearing of the issues made by the petition and the objections, thereto, the court sustained the objections in part on the ground that some of the lands of the objectors, would not be benefited by the proposed drainage and excluded such lands from the proposed district. The-other objections were overruled and the court ordered and adjudged the district duly incorporated, from which order and judgment the appellants herein appealed to this court.

The petition and articles of association are of too great length to be set out in this opinion. A careful examination has satisfied us that in form they are-in accord with the statute and, under the law as declared by this court in the case of Mound City Land and Stock Company v. Miller, 170 Mo. 240, they must, be held sufficient unless some of the objections, which counsel for appellants contend are now made for the-'first time against such a proceeding, are well founded. The objections, as made in the trial court and urged! ■on this appeal against incorporating the district, will be taken up and considered in the order and as stated in appellants’ brief.

I. It is first contended that: “The petition for •articles of association of the Little River Drainage District fails to state the mode and manner of draining the district, and fails to contain a plain description «of the commencement, the line and termination of the drains proposed, and the proceedings are void for that reason.”

This objection is more in the nature of an attack •on the law than upon the sufficiency of the petition. The law (Sec. 5496, R. S. 1909) expressly provides what facts shall be stated in the articles of association, all of which are set forth with particularity in the petition and articles in this case. Therefore, if the law is valid, the petition and articles, being in full compliance therewith, must be upheld against appellants’ •attack.

The law under which petitioners are proceeding . provides that after the district is incorporated and the supervisors have been selected and the board organized, an engineer or board of engineers shall be appointed and such engineer or board of engineers «hall then, for the first time, make a survey of the district and submit to the board of supervisors a plan for the reclamation and drainage of the lands; not the lands described in the articles of association, as filed with the circuit clerk and to which the objections are filed, but the lands remaining and included in the district as incorporated by the order and judgment of the ■court. It is plain from these provisions that the petitioners were not required to anticipate the orderly •course thus prescribed by stating in the petition fa'cts which were not legally ascertainable until after the petition and objections had been passed upon by the •court and the district incorporated.

II. The second complaint does not differ materially from the first. Appellants say: “In none of the proceedings by the petitioners for the incorporation of the district is any route or plan designated. The petition asks for the incorporation of the district for the purpose of having the land within its limits ‘reclaimed and protected from the effects of water by. drainage, ditches, levees, dykes or otherwise,’ and for this purpose to dig the necessary ditches and trenches and throw up the necessary dykes and levees. It enumerates the means to be employed to accomplish the result, but is silent as to plans, 'and the questions are suggested:

“1st. What ditches, levees and dykes are necessary; where are they; how are they to be constructed?
“2d. What is the ‘or otherwise?’
“3d. Is the drainage district to- be organized for sanitary or agricultural purposes, or for the general welfare by reclaiming and protecting the land within its limits ‘from the effects of water by drainage or 'otherwise,’ as provided for by section 5496, Revised Statutes 1909?”

A sufficient answer to these questions is that the law does not require such details to be set out in the articles of association. Objections were made to the incorporation of the drainage district in the case of Mound City Land & Stock Company v. Miller, supra, as shown by the files in the office of the clerk of this court, substantially the same as that now under consideration. Among them were the following:

“The incorporation is sought to be established, first, without any effort or attempt to locate, designate or determine where any drains or dykes shall be located, if they even propose to make them.
“Your objectors and no other land-owner can determine from the sweeping statement of the objects of the so-called organization whether his lands will be benefited, injured, ruined or confiscated by tbe so-called ‘corporation.’
“Your objectors say that they ought not to be subjected to the burdens of an incorporation or association without any preliminary survey or attempt to determine whether the result would be beneficial, or useful to the public generally or to the objectors’ lands. ’ ’

Against such objections in that case this court sustained the petition and articles of association, which in form were almost identical with those in the case at bar, and adhering to the law as there declared we rule against appellants upon this point.

III. Under the statute the non-petitioning owner of land in the proposed district, when brought into court, may file his objections stating “why such drainage district should not be organized and incorporated, or why his land, or any part thereof, will not be benefited by the proposed drainage, or should not be embraced in said drainage district, and made liable to taxation for draining the same.” [Sec. 5499, R. S. 1909.]

Appellants make the point that the only day the objector has in court to contest the organization of the district is when the petition and articles of association are heard by the court; that it is too late to raise the question after the district is incorporated, and they complain that full opportunity was not afforded objectors by the court to present their objections and testimony in support thereof as to why the district should not be incorporated.

It is apparent that there is a radical difference in the character of the inquiry under the first ground of objection, namely, why the district should not be incorporated, and the second ground, why the object- or’s land or any part thereof will not be benefited by the proposed drainage and should not be embraced in the district. If no objections were made by the land-owners, it wonld still be incumbent upon the petitioners to satisfy the court as to the practicability of the proposed improvement, and in allowing the landowner to interpose this general objection the Legislature doubtless had in view the bringing out of the facts upon the issue thus made as to the practicability of the proposed drainage scheme, as well as upon the question whether the objector’s lands should be included in case the district should be organized. Upon the first ground of objection the scope of the investigation should not be unduly restricted and evidence of any fact that would be a substantial reason against the incorporation of the district is competent. That the effects of the water were not so injurious as to justify the cost of the improvement; that the drainage of the land is impracticable for want of sufficient fall to carry off the water, or because of no outlet or channel into which the water may be drained; that other lands not included in the proposed district would be benefited equally with those that are included, all of these facts and probably many others, would be competent upon the issue why the district should not be incorporated. However, an examination of the nine objections filed by the appellants discloses the fact that they were levelled against either the sufficiency of the petition and articles of association, or against the law, or that the objectors’ lands would not be benefited and should not be included in the district. No objection was filed as to why the district should not be incorporated (unless the alleged unconstitutionality of the law be so considered), and appellants therefore are not in a position to complain of the rulings of the court in excluding testimony upon that issue. It should be added, however, that there was ample testimony introduced as to the necessity and feasibility of the proposed drainage to warrant the finding of the court.

IY. Appellants make the same complaint against the constitutionality of section 5499, Eevised Statutes 1909, and the other sections of the law upon which this proceeding is based, as was made against the sufficiency of the petition and articles of association, namely, that as the plans for the proposed drainage were not required to be set out in the petition and articles of association, the objectors have no intelligent means of supporting their objections and they are therefore deprived of their property without due process of law.

In making this> contention the appellants overlook the fact that it is not necessary to the constitutionality of the statute providing for the incorporation of the drainage district that any notice whatever should be given to the landowner in laying out and determining the district. [2 Page & Jones on Taxation by Assessment, sec. 743; Ross.v. Board of Supervisors, 1 L. R. A. (N. S.) 437; Mound City Land and Stock Company v. Miller, supra; Spencer v. Merchant, 125 U. S. 345.]

In Page & Jones, supra, the authors say: “Notice of proceedings to determine the assessment district need not be given in the absence of statutory provision therefor, as owners have no constitutional right thereto.” And in Ross v. Board of Supervisors, supra, l. c. 437, the court said: “Appellant takes the position that the landowner is entitled to notice and hearing as to the extent of this district, and whether his land shall be included therein, and that the failure to provide for such notice and hearing renders the statute unconstitutional. In our opinion, the objection is unsound. The division of a state or lesser municipal territory into districts for the purpose of taxation or public improvement is a legislative matter, and the citizen affected thereby cannot complain because the power is exercised without notice to him. If, for instance, the Legislature saw fit to divide the entire state into drainage districts, and make the lands in each district chargeable with .the expense of snch drains therein as the public welfare might demand, we apprehend that such legislation would be open to no serious constitutional objection on the ground that it deprives the landowners of property rights without due process of law. That such legislative power for local purposes may be delegated by the Legislature to minor municipalities is a matter of universal recognition and constant practice.”

If a statute which does not require any notice to the land-owner of the proposed formation of a drainage district is not unconstitutional for that reason, it is clear that the statute under consideration, which does require such notice, cannot be successfully assailed on the ground that it does not fully inform the land-owner as to the details of the plan of drainage before the district is formed. The law does provide for full and complete information and notice of the “plan for drainage” before the assessment of benefits, and gives to every landowner the right to be heard and to a trial' in court before a charge can be placed against his land, and when accorded such right it cannot be maintained that he is denied his day in court. In the case of Spencer v. Merchant, supra, the highest court in the land declared the law to be, as concisely stated in the syllabus, that: “If the legislature of a State, in the exercise of its power of taxation, directs the expense of laying out, grading or repairing a street to be assessed upon the owners of the lands benefited thereby; and determines the whole amount of the tax, and what lands, which might be so benefited, are in fact benefited; and provides for notice to and hearing of each owner, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land; there is no taking of his property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.”

Neither is it necessary that the drainage law should recite the public benefits to be effected and upon which the validity of the law must rest. In the case of Morrison v. Morey, 146 Mo. l. c. 563, this court said: “We take judicial notice of the fact that overflows are followed by disease, resultant from the decaying deposits left by the water, and that such disease is not and cannot be confined to a single family, but spreads among the people of the locality without any fault of theirs, and which they are powerless to prevent.” So will this court take judicial notice of the fact that the swamp and overflowed lands sought to be drained by this proceeding were granted to this State by Act of Congress September 28, 1850, to enable the State “to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be and the same are hereby, granted to said State,1 ’ and that the next General Assembly of this State, Session Laws 1850-1851, page 232, passed an act appointing a board of commissioners for the purpose of having these lands surveyed and “to devise some safe, expedient, economical and practicable plan for the reclamation of said lands from their present wet condition and liability to overflow and for rendering the same tillable and fit for cultivation. ’ ’

The power of the State to provide by legislation for the reclamation of said lands was thus recognized in the provisions of the act through which the State secured its title thereto and by the Legislature of this State by the law enacted in accordance with the purpose for which the lands were granted.

The right of the State, in the exercise of its police power, to drain lands for the purpose of protecting the health of the people is generally conceded, and if snch power may be invoked to protect the health? of the people inhabiting swamp and overflowed lands,, it may also be invoked to make such lands fit for use,, productive and habitable, and so the courts have held.. [Mound City Land and Stock Company v. Miller, supra, l. c. 258; Llagar v. Reclamation District, 111 U. S. 701; Falbrook Irrigation District v. Bradley, 161 U. S. 112; C. B. & Q. Ry. Co. v. Drainage Commissioners, 200 U. S. 561; State ex rel. v. Board of County Commissioners, 87 Minn. l. c. 336; Irrigation District v. Williams, 76 Cal. l. c. 367.]

V. The court did not err in its finding as to the ownership of the property belonging to appellant, The St. Louis and Gulf Railway Company. There was-evidence tending to prove the ownership as alleged in the articles of association, and, as stated by this court-in the Mound City Land and Stock Company case, supra, “this court will not review the findings of fact, when the evidence is conflicting.”

.Neither did the court err in refusing to give instruction numbered 6 at the request of the objector, the St. Louis, Memphis and Southeastern Railroad' Company. It does not follow that land should be excluded from the district because damaged by water “only in high and unu-sual freshets.” Such damage-may be sufficiently injurious to justify including the-land in the district. The extent to which a tract of land will be benefited does not go to the question of the propriety of including that land in the drainage district, but rather to the amount of benefits to be assessed against that tract as compared with the other-lands in the district. Sec. 5516, R. S. 1909.

"VT. The fact that the land is a part of an existing drainage district and has paid benefits therein, is not a valid objection to including it in the proposed district, and the court properly refused objectors’ instruction numbered 8. [1 Page & Jones on Taxation by Assessment, sec. 550; South Highland Land & Improvement Company v. Kansas City, 172 Mo. 523.]

VII. The most serious question presented on this appeal is the action of the court in refusing permission .to objectors to amend their written objections during the trial of the case.

After the petitioners had closed their case in chief, the objectors offered testimony tending to prove why the district should not be incorporated". The petitioners objected to such testimony for the reason that the written objections did not raise such an issue, and the objection was sustained by the court. Thereafter,, and before the objectors closed their testimony, they asked leave of court to amend their objections by adding the additional objection that “the proposed drainage of the land was not feasible but highly impracticable,” which leave the court refused.

It is the well recognized policy of the law that courts should be liberal in allowing amendments in furtherance of justice. On the other hand it has been said by this court that: “While our statutes are liberal .in allowing amendments in aid of justice, it has. been uniformly ruled by the courts of appeal and this, court that the circuit courts are not bound to permit, an amendment to an answer which- substantially changes the defense on the eve of the trial of the cause. [Harrison’s Administrator v. Hastings, 28 Mo. 346; Clark v. Transfer Co., 127 Mo. l. c. 270; Bank v. Goldsoil, 8 Mo. App. 595.]” See also Laughlin v. Leigh, 226 Mo. l. c. 639.

Appellants had filed their objections nearly two. years before the trial. After the issues had been made up a change of venue, on the application of an objector, had been awarded to a circuit distant from the court in' which the proceedings were filed. Leave to amend was not asked until the eve of the submission of the cause and the proposed amendment would have materially changed the issues. In view of these facts we hold that the court did not err in refusing permission to make the amendment.

It follows from the foregoing consideration of the matters .complained of by appellants that the judgment should be affirmed. It is so ordered.

All concur.


author: CRAVES, J.

text:
    HOME TELEPHONE COMPANY, Appellant, v. SARCOXIE LIGHT & TELEPHONE COMPANY.
    In Banc,
    July 3, 1911.
    1. JUDICIAL NOTICE: Facts of History: Telephone Consolidation. Courts, take judicial notice of facts of current history, and what the general public knows the court is presumed to know. The court, therefore, will take judicial notice of the fact that a few years ago the Bell Telephone Company had no competitor in this State; that local telephone systems were later organized in the towns and country districts; that there being no competition in long-distance service, it was a matter of indifference to the Bell Company whether the local companies were permitted physical connection of their lines with its,s and that in most places such connection was not permitted; that later the Kinloch Company succeeded in establishing physical connection with most of the local companies, and put in long-distance service throughout the State in competition with the Bell Company, which is only' a name for the Missouri & Kansas Telephone Company and many other subsidiary companies; that the contract in suit between two companies in Jasper county was one of a number made during this period of developing competition to the Bell Company; and that in time both the Bell Company and the Kinloch became active in a desire for physical connection with local companies and rural lines to serve the whole public; and the suit in question between said local companies, to enforce a contract providing for connections of lines and transmission of messages to distant points, being in fact a contest between the Kinloch Telephone Company and the Bell Telephone, will be determined, in the construction of the contract and statutes, with that history in view.
    2. -: -;-: Telephone Competition. An agreement between a local telephone company at Joplin and another at Sarcoxie, for connecting lines to Carthage and other places in the county, and for the transmission of messages from the lines of one to those of the other, with the ultimate purpose of connection at Joplin with the lines of the Kinloch Company for the transmission of long-distance messages, was not intended, as is shown by the history of the times and the contract itself, to stifle competition.
    3. Telephone Competition: Different Fields. The joining of two telephone lines operating in different fields does not create a monopoly or stifle competition. That only broadens the use of the lines. If the purpose of the agreement between a Joplin telephone company and- a Sarcoxie company was to make one continuous system of the lines owned and controlled by and connected with the two contracting companies, by making physical connection of the several lines through switch-boards, it was not an illegal contract.
    4. -: Physical Connections: Statute. Sec. 1254, R. S. 1899, is broad enough to authorize two telephone companies to enter into contract providing that lines of one, through switchboards, shall be so physically connected as to form a continuous system and that the messages received by one shall be routed over the lines of the other.
    5. -: - — : -: Switch Boards: Compelled Connection. Sec. 1255, R. S. 1899, does not compel one telephone company to. physically connect its lines with those of another. • It requires such company to provide sufficient facilities at its office “for the dispatch of the business of the public, to receive dispatches from and for any individual, and - on tender of payment of the usual charges to transmit the same promptly and with impartiality and in good faith;” and that places such other company and the individual on the same basis; that is, either can have a message transmitted over the company’s lines, but neither has a right to have his or its own line or lines physically connected, by switch boards or otherwise, with those of the other. One company has no right to take physical control of the lines of another for forwarding its messages. That statute does not authorize one company which has entered into a contract with another in another town for the physical connection of their lines so as to form a continuous system to breach its contract on the ground that there is another company demanding that it forward its messages over its lines.

      6. -: -: By Contract. A competitive telephone company cannot compel physical connection of its lines with the. lines of another company. But two companies operating in. different fields may by contract arrange for. physical connection, of their lines, and such contract is valid, and will be enforced, although the contract provides that neither party thereto shall, enter into a like contract with any other company, and although, if such contract be enforced, it will deprive one of them of the-right to make such physical connection with a third company engaged in long-distance service.
    7. '-: -: -: Pools and Trusts: Raised by Violator. Nor is such contract, if made between two telephone-companies operating as to their local business in different fields, and made in contemplation of a continuous competitive line as. to long-distance business, in violation of the statutes relating to-pools and trusts. Besides, such a defense from the company which has enjoyed the benefits of the contract, comes with poor-grace. . '
    Appeal from Jasper Circuit Court. — Hon. Davicl FT Blair, Judge.
    Reversed and remanded.

      Hugh Dabbs and McReynolds & Halliburton for-appellant.
    (1) A court will grant injunction to protect contract right, and it is not necessary that the injury-should he irreparable and defendant insolvent. Brewing Co. v. "Water Works, 34 Mo. App. 119; Gordon, v. Mayfield, 84 Mo. App. 367; Tool Co. v. Springs Co.,. 93 Mo. Ápp. 530; Musser v. Brink, 80 Mo. 350; jonesv. Williams, 139 Mo. 1; Electric Works v. Magnet Co.,. 9 Am. & Eng. Ann. Cases, 975. (2) A court of equity has the right to specifically enforce the contract, between plaintiff and defendant. Railroad v. Railroad, 144 N. Y. 152; Tel. Co. v. Harrison, 145 U. S.. 549; Tel. Co. v. Railroad, 129 Fed. 849; Fashion Co.. v. Siegel-Cooper, 157 N. Y. 60; Joy et ah, 138 U. S-1. (3). The contract between the plaintiff and defendant is made by authority of and is especially authorized by Sec. 3329, R. S. 1909. Under this section. it is held that railroad companies may make an exclusive operating contract with another company or carrier, and such contracts are held not to be in restraint ■of trade and not a monopoly. Ferry Co. v. Eailway, 73 Mo. 389; Ferry Co. v. Eailway, 128 Mo. 224; Eailway v. Eailway, 135 Mo. 173'; Eailroad v. Car Co., 139 U. S. 79; Eichmond v. Eailroad,- 26 Iowa 191; Eailroad v. Eichmond, 19 Wall. 584; Bridge Cases, 10 U. S. App. 98; Board v. Christie, 198 U. S. 237. Sec. 2329, E. S. 1909 (Sec.' 1254, E. S. 1899) having-authorized telephone companies to make contracts like the one in issue and being a special statute relating to telephone and telegraph companies alone, and the ■anti-trust sections being general, if in conflict, the special act must be taken to be intended to constitute an -exception to the general act, and is not repealed by the general law, even though the latter should be passed subsequent in point of time to the former. Manker v. Faulhaber, 94 Mo. 441; Enshburg v. Eailroad, 161 Mo. 85; State ex rel. v. Hostetter, 137 Mo. 644; Donnell v. Lee, 101 Mo. App. 191; State v. Kessell, 121 Mo. App.. 233; State v. Bnnswanger, -122 Mo. App. 78; State ex rel. v. Foster, 187 Mo. 590; State ex rel. v. Wilder, 197 Mo. 27; Endlich on Inter, of Stat., sec. 181; Sutherland on Stat. Cons., secs. 157-8; Lough v. Outerbridge, 38 N. E. 292. (4) The contract set out in the petition is not invalid as being in restraint of trade, monopolistic, or violation of Secs. 10298, 10299 and 10301, E. S. 1909, the restraint, if any, being ■only partial, and the restriction reasonable, and not so large as to interfere with the rights of the general public. Skrainka v. Scharringhausen, 8 Mo. App. ■522; Long v. Toll, 42 Mo. 545; Ferry Co. v. Eailroad, 73 Mo. 389, 116 17. S. 615; Finck v. Granite Co., 187 Mo. 269; State v. Oil Co., 218 Mo. 379; Eddy on Combinations, sec. 224; Cook’s Combinations and Monopolies, sec. 145; State v. Cadwallder, 87 N. E. 650; Tel. Co. v. Tel. Co., 112 N. Y. Supp. 425; Joy v. Eailroad, 138 U. S. 1; Fashion Co. v. Railroad, 68 Am. St. 749 ;• Tel. Co. v. Railroad, 68 L. R. A. 970; Railroad v. Railroad, 144 N. Y. 152; Tel. Co. v. Harrison, 145 U. S. 549; Railroad v. Railroad, 5 DeG. & M. 138; Railroad v. Railroad, 163 U. S. 560; Railroad v. Railroad, 5 McLean (U. S.)- 450; Railroad v. Railroad, L. R. 16 Eq. 433; Railroad v. Railroad, 24 Fed. 516; Tel. Co. v. Railroad, 129 Fed. 849; U. S. v. Pipe Co., 175 U. S. 211; Cates v. Atlanta Co., 46 L. R. A. 431; Donovan v. Pacific Co., 119 U. S. 276; Railroad v. Car Co., 135 LT. S. 79; Railroad v. State, 99 Tex. 34; State ex rel. v. Tel. Co., 36 Ohio St. 296; People ex rel. v. River Co., 19 Abbott’s New Cases, 479; Woods v. Whitehead, 165 N. Y. 545; Grasselli v. Loudon, 11 Ohio St. 357; Brass v. McConnell, 114 Iowa 401; Railroad v. Railroad, 110 ÍJ. S. 680; Railroad v. Express Co., 117 U. S. 34; Railroad v. Car Co., 139 U. S. 79;.State v. Brown, 10 Dec. Ohio, 38; Snyder v. Depot Co., 30 O. C. C. 368; Ferry Co. v. Railroad, 73 Mo. 389; U. S. v. Tel. Co., 50 Fed. 28; Steamboat Co. v. Railroad, 45 N. Y. Supp. 109; Richmond v. Railroad, 26 Iowa, 191; Greenhood on Public Policy, p. 208; Cook on Monopolies, sec. 142.

      Thomas <& Haclmey for respondent.
    (1) The said contract in so far as it attempts to prevent either party from permitting any other person or corporation to make connections with their lines and in so far as it attempts to prevent either of said corporations from transmitting m(essages and allowing the use of their lines to persons or corporations other than the appellant and respondent is void as being contrary to Sec. 3030, R. S. 1909. Contracts entered into in violation of a statute are void notwithstanding such contract is not expressed to be void by the terms of the statute. 9 Cyc. 366; 15 Am. & Eng. Ency. Law (2 Ed.), 941; Haggerty v. Railroad, 143 Mo. 238; Assn. v. L. & G. Go., 138 Mo. 394; Sumner v. Summers, 54 Mo. 340; Miller v. Ammon, 145 U. S. 421; Pernn v. Bornman, 102 111. 523; Sawyer v. Sanderson, 113 Mo. App. 233;.Sharp v. Teese, 9 N. J. L. 352; Bank v. Owens, 27 U. S. 527; Harris v. Runnels, 12 Plow. 79. (2) The respondent having furnished telephone facilities to the appellant cannot refuse to furnish like facilities to all other telephone companies, notwithstanding it is forbidden to do so by its contract with the appellant. Such a contract is void at common law governing monopolies in restrain of trade, as well as void under the statute. Telephone companies are common carriers though not liable as insurers. Through voluntarily undertaking to serve the public in their • chosen capacity, they assume at least one obligation incident to, the relation of a common carrier. This obligation the common law annexed to the use of their instruments which operates to fix the duty tipon such companies to furnish impartial service to any one offering to comply with their reasonable requirements not only in respect.to their public station system, but also to the private use of instruments installed in office, residence and place of business. The obligation arising from the use is to furnish each and all equal facilities for connection without unjust discrimination. State ex rel. v. Tel. Co., 93 Mo. App. 349.; Tel. Co. v. Tel. Co., 17 Atl. 1071; State ex rel. v. Cadwallader, 87 N. E. 644;. State ex rel. v. Tel. Co., 17 Neb. 126; State ex rel. v. Tel. Co., 61 S. C. 83;. State ex rel. v. Tel. Co., 23 Fed. 539; State ex rel. v. Tel. Co., 47 Fed. 633; Tel. Co. v. State ex rel., 50 Fed. 677; State ex rel. v. Tel. Co., 36 Ohio, 296; Tel. Co. v. Tel. Co., 66 Mcl. 399; Hockett v. State, 105 Ind. 250; Tel. Co. v. Bradbury, 106 Ind. 1; Tel. Co. v. State ex rel., 118 Ind. 194; Tel. Co. v. Tel. Co., 3 Atl. 829; Tel. Co. v. Tel. Co., 171 Fed. 130; 27 Am. & Eng. Ency. Law (2 Ed.), 1021; Jones on Telephones, sec. 243; Tel. Co. v. Tel. Co., 147 Mo. App. 216. (3) The exclusive privilege in the contract now sought to he enforced is violative of the public policy of the State. Sec. 10298, R. S. 1909; Sec.. 10299, R. S. 1909; State ex rel. v. Oil Co., 218 Mo. 1. (4) Counsel for appellant in their brief seem to rely exclusively on Sec. •3329, R. S. 1909, to uphold the validity of the contract in issue. Said section certainly cannot be so construed by this court as to permit appellant to enter into a contract with respondent which would violate Secs. 3328 and 3330. While the respondent and appellant had the right under Sec. 3329 to enter into a contract by which their respective lines would be connected, yet the respondent had no right to disable itself by such contract from performing its duty to the public, enjoined upon it by Sec. 3330. Jaicks v. Merrill, ‘201 Mo. 91; St. Louis v. Klansmeier, 213 Mo. 119; Ewing v. County, 216 Mo. 681; State ex rel. v. Perry Co., 208 Mo. 622. In conclusion, respondent maintains that the identical question involved in this case is settled adversely to appellant by the St. Louis Court of Appeals in the case of Tel. Co. v. Tel. Co., 147 Mo. App. 216.
   CRAVES, J.

Plaintiff sues defendant to enjoin It from violating a certain agreement made between them May 4,1905, concerning the exchange of business •oh their respective lines. The material portions of the agreement read:

“This agreement, entered into by and between the Home Telephone Company, a corporation of •Joplin, Missouri, first party, and Sarcoxie Light and Telephone Company, a corporation of Sarcoxie, Missouri, second party.
“Witnesseth that whereas, the first party is •operating telephone exchanges at Carthage, Carterville, Webb City and Joplin, Missouri, and the second party operating an exchange at Sarcoxie, Missouri, and both operating local lines that toll business is handled over, connecting principal points in Jasper connty, and arrange for the interchange of business with independent or opposition exchanges or toll lines in said connty, and if desirable and practicable, extend such service beyond said county, under such arrangements as will be advantageous.
“Now therefore, the parties hereto, for themselves their successors and assigns, in consideration of the mutual promises herein made, covenant and agree as follows, to-wit:
“First. The first party agrees to build and maintain a metallic No. 10 iron, or a copper No. 10, telephone line or lines from Carthage to Sarcoxie, then to connect with the party of the second part’s line to be run from the city limits to its exchange for the purposes herein specified.
“Second. Each party hereto grants a license to the other party to connect with the telephone exchange or system of the other party through its switch board at Carthage and Sarcoxie so that an interchange of business may at all times be carried on between said parties. Such connection to be completed on or before June 1, 1905, it being understood and agreed that the line of both parties hereto shall be so operated that service may be given from all lines .owned, controlled or connected with the lines of either of the parties hereto, over the lines of the other and its connection. And each party hereto agrees not to-enter into any contract with any other person, firm or corporation whereby any of the rights, privileges or-advantages herein acquired by either party may be impaired. ...
“Fourth. Each party agrees to transmit all messages destined to points on the lines of the other party hereto not reached by its own system or wires, to and over the lines owned or controlled by the other party.
“In consideration of the benefits to be derived by each of the parties hereto from the toll service herein provided to be furnished by each party, agrees to transmit all business to points reached by its own line or lines, and those to be constructed or acquired within Jasper county over the lines of the parties hereto.
“Fifth. Each party hereto agrees to receive from the other and transmit all messages destined to points within its territory or on connecting lines which may be delivered to it by the other parties hereto, subject to all the conditions herein named. . . .
“Twelfth. This contract shall be and remain in force and effect during the period of twenty-five years from the date hereof, and thereafter until one year’s written notice shall have been given by either party to the other of its intention to terminate the same. Provided that if the franchise of either party hereto shall expire within less time than above mentioned, and be not renewed, and such party be compelled to ■cease doing business, this contract shall not be construed as requiring such party to do that which it is then unable to do, and provided further that each party shall at all times during the existence of this contract furnish to the other party connection with an independent telephone exchange in Carthage and Sarcoxie, Missouri, at current rates, otherwise this contract may be terminated at will by the party at an earlier period, but such action by either party shall not relieve the other from the obligations herein assumed.”

The petition then charges that the plaintiff then built the line from Carthage to Sarcoxie and gave the connections and did all other things required of it by the contract. At some length the petition charges the ■delinquencies of the defendant, but one paragraph will fairly present the matter. Such paragraph of the petition reads:

“Plaintiff states that the defendant in violation of the terms, condition and provisions of said ■contract and in violation of the rights of plaintiff thereunder, has since the 10th day of April, 1906, up to the present time, failed, neglected and refused to. transmit to plaintiff all of the telephonic messages destined to points on the lines of plaintiff, or lines ■controlled by and connected with plaintiff’s lines, and not reached by defendant’s lines, as provided in said contract; bnt on the contrary has entered into a contract with the Missouri and Kansas Telephone Company, commonly known as the Bell Telephone Company, a competitor of plaintiff with lines running in competition with plaintiff’s lines in Jasper connty, Missouri, and a large number of other points, in violation of the rights, privileges and advantages of said contract to the plaintiff and impairing the rights of plaintiff thereunder, by and through which defendant has since the 10th day of April, 1906, ■delivered and transmitted to said company a large part and proportion of the messages received by defendant and destined for points on the lines of plaintiff and lines controlled and connected with plaintiff and not reached by defendant’s system of wires, to plaintiff’s damage in the sum of $10,000.”

The concluding portion of the petition thus reads:

“Plaintiff states that the defendant is at the present time violating and continués to violate said ■oontract as aforesaid by continuing its unlawful connection for the purposes hereinbefore stated, with the Missouri and Kansas Telephone Company, as aforesaid, and .unlawfully transmitting over the lines of said company the business and messages which rightfully should be transmitted over the lines of this plaintiff under said contract.
“Plaintiff states that unless defendant ,is enjoined it will continue said violation of said contract and deprive it of its benefits, profits, tolls and revenues that it should rightfully derive therefrom in the future.
“Plaintiff states that it has no adequate and complete remedy at law to prevent the future violation of the contract on the part of the defendant, and that an action of damages is not sufficient and adequate to protect the rights of plaintiff, because the continued breaches of said contract on the part of defendant in the future, as aforesaid, will result in a multiplicity of suits.
“Wherefore, plaintiff prays the court for a judgment against defendant for damages already accrued in the sum of $10,000, as aforesaid, and in order that defendant may hereafter be restrained from further damaging plaintiff and violating the terms of said contract and impairing or destroying the business of plaintiff as to avoid a multiplicity of suits, plaintiff prays the court that defendant may be restrained from transmitting any telephonic messages received by it at any of its exchanges and destined for points not reached by defendant’s system of wires, and to points on the lines of plaintiff, or lines controlled by plaintiff or on connecting lines with plaintiff, to the Missouri and Kansas Telephone Company or to any other telephone company competing with plaintiff at such point during the term and life of said contract, and that the court issue its mandatory order .and injunction requiring the defendant to deliver and transmit all such messages to this plaintiff during the term of said contract, and in all respects to comply with the agreements and provisions therein contained, and that defendant be restrained from further physical connection with the Missouri and Kansas Telephone Company for the transmission of messages in violation of the terms of said contract, and for such.other judgments and decrees as to the court may seem meet and just.”

Other paragraphs of the petition may require notice in the discussion of the questions presented.

To this petition the defendant filed its demurrer in the following language:

“Now comes the defendant and demurs to the plaintiff’s petition herein and says that the same is insufficient in law for the reasons following, to-wit:
“1st. Because said petition does not state facts sufficient to constitute a cause of action.
“2d. Because the contract between the plaintiff and defendant set forth in said petition is void as against public, policy, in so far as said contract undertook to prevent the defendant from doing the acts complained of in the petition.
“3d. Because said contract is in violation of the statute of the State of Missouri respecting the duties of telephone companies, and particularly of sections 1254, 1255 and 1256, Revised Statutes 1899.
“4th. Because the acts complained of in plaintiff’s petition would not entitle the plaintiff to recover damages against this defendant nor would they entitle the plaintiff to the equitable relief sought in this action.”

This demurrer the court sustained, and the plaintiff refusing to plead further its bill was dismissed.

Plaintiff then filed a motion to set aside the order sustaining such demurrer, and dismissing its said bill, which motion duly preserved in a bill of exceptions, reads:

“Now comes the defendant and moves the court to set aside the order sustaining the demurrer to plaintiff’s bill and .the judgment dismissing plaintiff’s bill and grant plaintiff a new hearing for the following reasons, to-wit:
“1. Because said order and judgment is violative of article 5 of the amendments to the Constitution of the United States. And is violative of section 10; article 2, and section 30 of article 2, of the Constitution of the State of Missouri. In that it deprives plaintiff of its property without due process of law. And in that under said rulings no remedy is afforded plaintiff for the injury to its property.
“2. Because said ruling of the court is violative of section 15 of article 2 of the Constitution of Missouri. In that it impairs the obligation of the contract between plaintiff and defendant.”

This motion the court, nisi, overruled and defendant brings the cause here by appeal.

I. There is but little use in mincing words about the real issues in this case. It is apparent upon the-face of things, in view of State history, of which we must take notice, that the real contest is between the Kinloch Telephone Company upon the one side and what is usually known as the Bell Company upon the other. The two local companies are hut instrumentalities, one in the hands of the Kinloch Company, and the other once in its hands, but now in the hands of the Bell Company. The court does not know less of the. developments in the State than does the average citizen. The average citizen knows that there was a. time when the Bell Company had no competitor in this State. The average citizen knows that local phone systems were organized in the towns and country districts. They likewise know that there being no-competition in long-distance service it was a matter of indifference with the Bell Company whether they permitted physical connection of such lines with their lines. In many, if not most places, no physical connection was tolerated. This is general knowledge in this State. It is also general knowledge that later theKinloch Company after a time succeeded in interesting most of the divers local companies, and put in long-distance service in the State in competition with the Bell Company. We use the term Bell Company because it is generally known that the Missouri &. Kansas Telephone Company is but one of the numerous subsidiary companies under the control of what was originally known as the Bell Company. The Kin-loch Company succeeded in interesting the local companies and all over the State there was physical connection with the local companies. This seems to have been accomplished whilst the Bell Company, in a spirit of independence and supreme indifference, thought itself secure. That it was done is as well known to the average Missourian, as is the other' history of the State, and what the general public knows, it is at least presumed that the court knows. [Reineman v. Larkin, 222 Mo. l. c. 170.] In that case, Lamm, P. J., said: “Courts take judicial notice of facts of current history, of geographical and scientific facts and of facts commonly known to all mankind. This, because courts should not admit themselves more ignorant than the rest of mankind.”

That the contract involved in this case was one of a number made during this period of developing competition to the Bell Company is apparent. Time developed the fact that a farmer or merchant would not leave his farm or his store to talk through the long-distance booth of one company located in the town,, when he could connect at his farm or his store with another long-distance telephone company reaching the same place. When this dawned upon the other competing company, independence became activity, and indifference was wrought into a desire to serve all the public by a direct and physical connection. This much is general public knowledge. In the light of the surroundings and the law, statutory and otherwise, we must construe this contract.

The Sarcoxie Company, now physically connected with the Bell Company, says the contract is void, although the consideration has been fully paid and performed by the Home Telephone Company. By the terms of the contract the Home Company was to build a line from Carthage to Sarcoxie. This outlay has. been made and the Sarcoxie Company has enjoyed the benefits of this expenditure. Unless flagrantly violative of law, good conscience would demand the fulfillment of the agreement. With these general observations we pass next to a discussion of the contract from a legal standpoint, pure and simple.

II. That this contract was not intended to stifle competition in long-distance telephone rates, at the time of its making, is apparent from the face thereof, as well as from the history detailed in our paragraph one. That the purpose was to meet competition clearly appears. By paragraph eight of the contract provision is made for meeting competition. In other words the very face of the contract shows what the known public history is, that the object of these-contracts connecting the local companies with the Kinloch system was for the very purpose of competition and not for monopoly, and it might be added that the idea of a monopoly first concurred when the farmer or merchant with a local phone connected with the Kin-loch system, would, for long-distance messages, use that system rather than go to the local booth of the 'Bell Company. With such subscribers, the relationship of the local companies not only furnished competition but convenience, and if the rates were the same convenience decided the route of the message. But beyond all this, these connections in the end furnished one continuous, competitive line with that of the Bell Company, and this competition might be broken down, if it shall be said that physical connection with the Bell Company must be made by all companies having connection with the Kinloch system. The contention has never been in this court, and it is a matter of vital importance. The Bell Company is apparently seeking to reap where it hath not sown, and this under the guise of law. The present case was advanced on statement of counsel that it affected nearly all of the local phone systems of the State.

Whilst it is true the question here has not been before this court, the same question, and practically the same contract, was before the St. Louis Court of Appeals. [Telephone Co. v. Telephone Co., 147 Mo. App. 216.] The appellant in this ease was a party to that suit, and the contract under consideration was one with a local company at Neosho, Missouri. In terms the contract is practically the contract here. That court by a vote of two to one held the contract void. Reynolds, P. J., filed a dissenting opinion, and there the case rests. In our judgment, the dissenting opinion expresses the law of the case. To our mind the majority opinion overlooks a vital distinction which •should be drawn. There is no question that a public telephone company is a public service corporation, and as such must treat the members of the general public alike. Nor can it be questioned that a contract the evident purpose of which it to create a monopoly should be condemned. The vital point in this case is that the petition seeks to enjoin the respondent from permitting a physical connection between its lines and those of the Bell Company. The petition avers that such connection has been permitted and that such is in violation of the contract. It is conceded in the opinion of Nortoni, J., in the case supra, that as an original right, no telephone company, either at common law or under our statute, could compel physical connection between its line and those of the Sarcoxie Company, tmt it is urged that inasmuch as by the contract in issue the plaintiff has been granted physical connection by switch board with the Sarcoxie Company, then and from that time on all other competing companies must be granted the same privileges. The opinion overlooks the point that if the contract is de dared void, the plaintiff has no status with the Sarcoxie Company and the result-would be to leave the-Bell Company in full non-competitive control of long-distance business. That such is the desire of the Bell Company can well be gathered. "We are using file-name of the Sarcoxie Company in lieu of the NeoshoCompany which was involved in the Court of Appeals, case, because the contracts are the same, and such use is more applicable here.

Now reverting to the vital question in this case,, i. e., if a local telephone company desires to extend its usefulness toward the public, and in order to do so-makes a contract of the character of the one here involved, can every other telephone line compel physical connection with such local company? In other words,, has it no control over its property or instrumentalities? Our judgment should not be harsh toward the-public, nor on the other hand should it strip a public-service corporation of all property rights. The contract under consideration shows that the two companies were occupying different fields of service. It shows that each desired to extend its usefulness. Such could be done by joining the two lines and such other-lines as might be connected with either. It would appear that the Home Company had long-distance telephone connections with the Kinloch System. Monopoly is the cry of the Sarcoxie Company in this case. The cry would be feeble if it came from that company alone, but vigor and volume is added to the cry by-reason of the physical connection with the Bell Company. It cannot be said that the joining, of the twO-telephone lines operating in different fields creates a monopoly or stifles competition. Such action only broadens the use of both lines. If the two contracting-lines occupied the same field and were therefore competitive lines a very different question might be presented.

To our mind the purpose of this contract was to-make one continuous system of the lines owned, .controlled and • connected -with the two contracting corporations. This continuous system, to he by physical connection of the several lines through switch boards. The contract contemplates lines operating or being operated^in different fields. If this be so, then there is no monopoly either at common law or under the statute. If this be so, then such combined line constituted one competitive line for long-distance business, and in that line of business could not be said to be a monopoly. Other competitive lines could be formed or built. And in this case under the allegations of the petition, which on demurrer are taken to be true, there was a competitive line in the Bell Company. In local business there could be no monopoly, because prior to the contract the corporations operated in different fields as before stated, ■ and the contract simply increased the usefulness of each so far as the general public was concerned.

So, therefore, upon that part of the contract which provides for the joining of these lines and those connected and controlled by them, we feel constrained to hold the contract valid, unless it be rendered invalid by matters which we discuss next.

III. The Sarcoxie Company goes further, however, and challenges that part of the contract which designates the routing of the messages over the lines • of the Home Company and its connections. This they say is violative of all law both statutory and otherwise. Not only so, but that it violates public policy. The contention boiled down is that no agreement can be made whereby two companies or more may undertake to join their lines into one competitive line, and thus route all the business received over such agreed line.

Plaintiff claims that its contract is authorized by statute. The statute reads: “Any company incorporated as herein provided may contract, own, use and maintain any line or lines of telephone or magnetic telegraph, whether wholly within or wholly or partly beyond the limits of this State, and shall have power to lease or attach to the line or lines of such company other telephone or telegraph lines, by lease or purchase, and may join with any other corporation or association in constructing, leasing, owning, using or maintaining their line or lines, upon such terms as may be agreed upon between the directors or managers of the respective corporations, and may own and hold any interest in such line or lines, or become lessees thereof, on such terms as the respective corporations may agree.”

That this statute standing alone is broad enough to cover the contract in question there can be no doubt. This was section 1254, Revised Statutes 1899. The contract in question was made in 1905, when this section was in full force and effect, as it is to-day.

Respondent, however, seeks to obviate the force of this section by reason of section 3330, Revised Statutes 3909. Section 3330, Revised Statutes 1909, was section 1255, Revised Statutes 1899, as amended in 1907. The amendment was subsequent to the contract, and therefore we should take the' law in force at the date of the contract. Subsequent legislation cannot invalidate contracts lawful at the date of their making.

Section 1255, Revised Statutes 1899, reads: “It shall he the duty of every telegraph of telephone company, incorporated or unincorporated, operating any telephone or telegraph line in this State, to provide sufficient facilities at all its offices for the dispatch of the business of the public, to receive dispatches from and for other telephone or telegraph lines, and from or for any individual, and on payment or tender of theif usual charges for transmitting dispatches, as established by the rules and regulations of such telephone or telegraph line, to transmit the same promptly and with impartiality and good faith, under a penalty of two hundred dollars for every neglect or refusal so to do, to be recovered, with costs of suit, by civil action, by the person or persons or company sending or desiring to send such dispatch, one-half of the amount recovered to be retained by the plaintiff,, and one- half to be paid into the county public school fund of the county in which the suit was instituted; and the burden of proof shall be upon the company to show that the wire was engaged as the reason for the delay in transmitting such dispatch.”

Prom a reading of this section it will be observed that our statute at the date of this contract did not compel one company to physically connect its line with any other company. The most that was required was that such companies were to provide sufficient facilities at the offices of the corporation “for the dispatch of the business of the public, to receive dispatches from and for any individual, and on tender or payment of their usual charges for transmitting dispatches, as established by the rules and regulations of snch telephone or telegraph line, to transmit the same promptly and with impartiality and good faith.”

This section does not require physical connection between telephone lines. It does require such company to receive all messages from other telephone or telegraph lines and transmit them, as it likewise requires it to receive all messages from individuals. This does not mean that such corporation must yield to a physical connection with its lines by a competitive company and permit the use thereof in that way. In such case and under this statute the telephone corporation or the telegraph corporation has no greater right than the individual. If the individual goes to the office of the telephone company and tenders payment .for a message, the company must accommodate him. So, too, if a telegraph company or other telephone company goes in the "capacity of an individual or corporate entity and demands a similar service, it must be rendered. But this does not mean that the telephone company must put up a switchboard for all such individuals or corporations desiring to do business with the telephone company. To illustrate, suppose Jones living upon a farm twenty miles from •Sarcoxie, built a private telephone line of his own to Sarcoxie, could he compel the Sarcoxie company to attach his line to their switch board? We think not. Then can a competitive line in the telephone business demand more than would or should be accorded to the individual? We say no. As to business which comes over another line the Sarcoxie Company under this statute would only have to treat it as it would the general public. The general public could go to its booth or office and upon payment of a fee fixed, talk to Carthage or other points where its line reached, but each individual of the general public could not build an individual line of his own and compel physical connection with the switchboard. If the individual could not do so, another corporation could not do so. It must be borne in mind that as to business coming from the Bell Company to the Sarcoxie Company, the Bell Company is in the attitude of an individual, with no less nor more rights. The individual in the town can compel the Sarcoxie Company, upon tender of proper charges, to extend its services by phone to his place of business or residence. The corporation can do the same thing, but not more. The individual cannot build a line of his own and demand physical connection, neither can the corporation. If the Bell Company at Sarcoxie demanded of the local Sarcoxie Company that it place a phone in its place of business such would be within the rights guaranteed by the statute. If it went to the Sarcoxie Company and tendered the proper fee and said it wanted to talk over their line, such would be within the statute, but if it demanded that a physical’connection be made between the two lines, so that its customers* could talk over the lines of the Sarcoxie Company, that is an entirely different question. With its customers the Bell Company is doing in a way a private business. This private business it cannot foist upon a competing’ line save and except as an individual could go to such competing line and demand service. In other words, one telephone company without the consent of the other cannot take charge of and use the instrumentalities of such other company by compelling physical connection therewith. The statute in question never, so contemplated.

It occurs to us that this question has been settled by this court in the railroad cases. Eailroads which intersect each other must, under the law, provide for the transfer of freight and business from one line to the other, but this does not mean that one company can take physical control of the lines of the other to forward freight originating upon its line. Judge Norton! attempts to draw a distinction between railroad and telephone companies, but we hardly think there is substance in it.

Under the Eailroad Act, we have section 3106, Eevised Statutes 1909, which reads: “All railroad corporations may contract with each other, or with other corporations, in any manner not .inconsistent with the scope, object and purpose of their creation and management.”

This statute in substance is the same as section 3329, Eevised Statutes 1909, supra, relating to the rights of telephone companies. The railway act has been construed by this court, and in our judgment ■such construction is'applicable to the telephone statute.

Speaking of the railroad section, Gantt, P. J., In Railroad Co. v. Railroad Co., 135 Mo. l. c. 202, said: “This section in its present shape may well be regarded as conferring the .requisite authority to make the ‘operating contract’ under discussion. In fact that section is simply declaratory of the principle announced in the decisions already cited and quoted. Indeed, section 2588 would seem to expand the result even of the advanced cases because it legitimates any contract between two railroad companies ‘not inconsistent,’ etc., so that under this section the given transaction need not be ‘absolutely necessary’ nor indeed ‘necessary.’ It is only obnoxious when it is found to be inconsistent with the purposes of the creation and management of the corporations. The previous history of section 2588, both legislative and judicial, would seem to indicate an intention on the part of the State to further and foster transportation of freight and passengers on through lines, and certainly such inter se arrangements between railway and other transfer corporations must greatly tend to the public convenience and prevent delays otherwise incident to travel and transshipment. Under this section the contract between two railway companies may be a lease, or an operating contract, or a. temporary permission or parol license, to use and occupy the line of one company to expedite the trains of another, because of some accident or disaster, or otherwise, provided always that the matter contracted about and the end sought is ‘not inconsistent’ with the purposes for which the railroad is chartered.”

Under the railway statute this court has held that it is proper for a railway company to enter into a contract with a single 'ferry company to handle its freight, and that a violation of such contract by employing another ferry company rendered the railroad company liable in damages. It was further held that such contract was not void as violative of public policy, nor as being a contract in restraint of trade or creating a monopoly. [Wiggins Ferry Co. v. Ry. Co., 73 Mo. 389; Wiggins Ferry Co. v. Ry. Co., 128 Mo. 224.]

In these cases the contract provided for one continuous line of transportation. The railway company ended at East St. Lonis and wanted to get to St. Louis. The contract was for ferriage across the fiver, and obligated the railway company not to use any other ferry. At the time there were two other corporations conducting a ferriage business. . These cases to my mind practically settle the controversy in this case. Many cases from other jurisdictions are cited and have been examined. Two of- them we think sustain the contention of the defendant, but the others are not applicable. On the other hand, there are many cases which conform to the views herein expressed, which appear under point three of plaintiff’s brief. As our own cases settle the matter we shall not review the foreign cases. We will, however, reiterate to some extent by saying that if the defendant’s theory of the law is correct, then any competitive company can compel physical connection of its lines with the lines of the Sarcoxie Company. Not only so, but any individual in the country could build a line of his own and compel connection with a city telephone system. To be plain in language, such á contention, if sustained, would absolutely deprive a corporation of all property rights in its own business. Such contention, if sustained, would give the Kinloch Company the right to force physical connection for its own business with the Bell Company at common points and thereby it could reach territory never touched, nor expected to be touched, by the Kinloch Company, and vice versa. If the Kinloch Company should by suit seek to compel the Bell Company to allow it physical connection with its lines reaching part of the country not occupied by the Kinloch Company, the argument in this court would be quite contrary to the one now advanced, yet the exact question would be involved. To hold that the Kinloch Company could have built its lines from the East to the city of St. Louis and then under our laws could have compelled a physical connection with the Bell Company lines, and used the same for forwarding their own business, to my mind is preposterous. It would be a virtual confiscation of property rights. Corporations' are separate entities, and as such are only entitled under our statutes to the .same rights as an individual. This right is to be treated as the general public is treated and not otherwise. Each and every individual cannot build independent phone lines and compel a phone company to connect them with the switchboard. Competing companies have no greater rights.

But, in addition to all this, the contention of defendant, if sustained, would not encourage competition, but rather retard it.

The theory of the case at bar is that under the law the Sarcoxie Company was compelled to grant physical connection to the Bell Company, because it had arranged for such'connection with a competitor of the Bell Company. Under the railway cases cited supra, this contention is not well founded. One other question remains and that we discuss next.

IY. It is next contended that this contract violates our statutes with reference to pools and trusts. We shall not set out the statutes, because they are well known. What we have heretofore said practically disposes of this contention, and disposes of it adversely to the claims of the defendant. The contract covers corporations operating in different fields, so far as local business is concerned, and as to long-distance business it contemplates a continuous competitive line. We are of opinion that the contract is violative of no law and is good.

In Wiggins Ferry Co. v. Ry. Co., 73 Mo. l. c. 411, we said:" “"While holding the contract, as we have construed it, to be valid, yet if it is shown by extrinsic evidence to be in conflict with public policy, to that extent it must yield and give way, and it is for the defendant affirming it to be so, to show it. The salutary rule that a contract against public policy or interest will not be enforced, was adopted to conserve the best interests of society and the State, and the party who invokes it as a shield behind which to hide and protect himself against the damages attachable to a breach of a contract, especially when such party is in the full and free enjoyment of all the fruits of the contract, must make it clearly manifest to the mind of the court that the obligations imposed by it are condemned by the rule. In the case of Bryant v. Fairfield, 51 Me. 146, it was held that it is not for a party who retains the consideration of the contract, to invoke the rule that the contract is against the policy of the law. While not wiling to go to the extent of that case and say that a party in the enjoyment of all. he was to get in consideration of a promise made by him to another, should not be allowed, when sued for a breach of such promi.se, to plead that it was against public policy, we may safely say, without infringing upon any rule of common honesty, justice or right, that to make such plea effectual, he should restore, or be required to restore, all that he received as a consideration for the promise which he thus seeks to avoid. ”

As before stated the defendant has enjoyed the benefits of the contract and evidently through its new friend is now pleading public policy. Such pleading comes with little grace in a court of equity.

The matter of remedy is not seriously questioned, and if it were we could not say that equity should not interfere under the statements in the bill. The cause should be reversed and remanded to be proceeded with under the views herein expressed. It is so ordered..

All concur.


author: PER CURIAM.

text:
    THE STATE ex rel. CARL WEICHART v. COUNTY COURT OF CARROLL COUNTY et al.
    In Banc,
    July 3, 1911.
    1. DRAINAGE DISTRICT: Jurisdiction: Motion to Vacate Judgment. After a final judgment of the county court organizing a drainage district — establishing the district, passing upon all objections and remonstrances of the opposers to the scheme, and providing for the letting of the contracts for the performance of the work and the issuance of bonds to pay the expenses —no motion to vacate that judgment can be entertained, and if such a motion is filed it should be stricken from the files, and the jurisdiction of the county court is not affected thereby.
    2. -: -: -: Change In Judges: Transfer to-Circuit Court. And if after such final judgment is rendered, there is a change in the membership of the county court and two of the new judges are of kin to parties in interest in the organization, such motion to vacate and annul the judgment previously rendered is filed, and the cause 'is certified to the circuit court and by that court the motion is overruled and the cause is certified back to the county court, the county court has jurisdiction to proceed with the matter, and had not at any time lost jurisdiction, for there is no provision in the statute for such a motion.
    Mandamus.
    Peremptory writ issued.

      Jones & Conlding for relator.
   PER CURIAM.

This is an application for a writ of mandamus to require the county court to proceed in the matter of Drainage District No. 3 of Carroll county. Proceedings to establish a drainage district were begun in the county court of Carroll county in May, 1905, and after long litigation final judgment was rendered in December, 1910, establishing the district, calling it Drainage District No. 3 of Carroll County, and passing judgment on all objections and remonstrances of the opposers of the drainage scheme, providing for the letting of the contracts to do the work, and for the issuing of bonds to pay the expenses. The final judgment covered the whole subject up to that date. With the expiration of the year 1910, the terms of two of the judges of the court expired, and two others were elected and qualified in their places. After the two new judges came in, to-wit, on January 16, 1911, the parties who had theretofore contested the organization of the district, and had fully litigated the matter on every point, filed a motion in the county court to vacate the judgment and annul the whole proceedings, for elaborate reasons assigned, which were in the main a reiteration of the objections and remonstrances'they had advanced during the course of their previous litigation and which had been decided against them. The object of the motion was to obtain from the county court, under the auspices of the new judges, a reopening of the whole litigation and a reversal of its final judgment. Two of the judges being then of' kin to the parties in interest, the cause was by order of the court transferred to the circuit court to pass judgment on that motion. Accordingly the circuit court assumed jurisdiction of the matter, overruled the motion, and certified the cause back to the county court. Then the county court concluded that it had lost its jurisdiction when it sent the case to the circuit court and that the jurisdiction remained there, and so they declined to move in the matter, whereupon the relators came to this court for a writ of mandamus.

The county court in this proceeding exercises a special jurisdiction conferred by statute, and its procedure is prescribed by statute. There is no provision in the statute for a motion of the kind filed by the remonstrators pn January 16, 1911. The motion should not have been filed; having been improperly filed, the only action that could lawfully have been taken in reference to it would have been to strike it from the files. The order transferring the canse to the circuit court to pass on that motion was without lawful authority and conferred no jurisdiction on the circuit court. The-proceedings in the circuit court were coram non judice. The jurisdiction of the county court in the matter has never been lost or suspended. The cause is now in the county court to be proceeded with as if the motion of January 16,1911, had never been filed.

Let the peremptory writ of mandamus-issue to the county court commanding it to proceed with the cause.