I concur fully in all that is said by Judge ELDER in the majority opinion. Upon the question therein discussed I would not add to or take from in the last. But this case (in different forms and phases) has had a checkered career. With the divers attacks upon this drainage district this court is familiar.
It is time that the matter be for all time foreclosed. In the several contests it has been persistently urged that Section 40 of the Act of 1913 (Laws 1913, p. 254) violatesConstitutional both the State and Federal Constitutions. Up toLaw: Drainage this time, the constitutionality of this actDistrict Law: under the Federal Constitution has not been ruledSection 40 of by this court. We think it should be ruled uponAct of 1913. in this case, and further litigation in that way prevented. This we say advisedly from the briefs herein.
The record shows that the action in the Ray County Circuit Court is one (as denominated by the plaintiffs *Page 18 therein) to remove cloud upon land titles. These clouds they aver were occasioned by a judgment of the Carroll County Circuit Court in extending the boundary lines of the drainage district so as to include the lands involved in the Ray County suit. The sole power of the Carroll County Circuit Court to extend boundary lines of a drainage district, and take in other lands, is the power granted by Section 40 of the Act of 1913, supra, If this section be unconstitutional, the judgment of the Carroll County Circuit Court extending the boundary lines of this district, and taking in new territory is void, and that court has not the jurisdiction that the majority opinion accords to it.
In this case in prohibition, we are to determine the jurisdiction of the Ray County Circuit Court, it is true, but in finding against its jurisdiction, we find that the jurisdiction is in the Carroll County Circuit Court. There can be no jurisdiction in the Circuit Court of Carroll County over the lands in this extension, if Section 40 of the Act of 1913 is void. So that it occurs to us the question is properly in this case, in that we are saying in the majority opinion that the jurisdiction is in the Carroll County Circuit Court.
Not only so, but in this case appears the pleading in the Ray County Circuit Court. In that petition it is urged that the Carroll County Circuit Court was without jurisdiction, because said Sections 2 and 40 of our Act of 1913, supra, violated Section 1 of the XIV. Amendment to the Federal Constitution.
This question is fully urged in the first statement and brief in the case now before us. The statement fully outlines the case and Point IV of the respondent's brief reads:
"If the decrees of the Circuit Court of Carroll County were made in the exercise of judicial power, and were unauthorized, because said court had no power to make them or because the statute which it was supposed gave the court said power was unconstitutional, as is alleged, the Circuit Court of Ray County has jurisdiction to cancel *Page 19 the levy of taxes made on Ray County lands based upon said decrees."
Hereunder is quite a list of cited authorities. From the statement made just before in the brief this point refers to Section 40 of the Act of 1913. Throughout this brief the point is urged. The later reply brief is not so insistent upon this point, but rather intimates that it is not necessary to measure this Section 40 by the yardstick of the Constitution. Light of another prospective action against this drainage district was perhaps dawning, when the last brief for respondents was filed. Respondents have presented the question, and we think it is (as pointed out above) sufficiently in the case to require our decision. So, to what our brother has written, I will add a discussion of that question.
II. Section 40 of the Act of 1913 (Laws 1913, p. 254) provides for several different things, among which is that a drainage district already organized may extend its boundaries. This may be done in one or two ways, (1) the board of supervisors may petition the circuit court for such extension, or (2) adjacent landowners may petition the court. It also provides for changing the plan of reclamation, and other things. But none of the things can be done without notice to the parties interested, and a hearing before the court having jurisdiction. In this case the board of supervisors took the initiative, and it was upon this petition that the changes in the boundary lines were made, and all this was done under the authority of Section 40, supra. If this section is void, then the judgment of the Carroll County Circuit Court making these changes, and including the lands involved in the Ray County Circuit Court, is void, and the Circuit Court of Carroll County has no jurisdiction of this added territory. It is for this reason that I think this matter should be determined, before we announce, as we so do in the majority opinion, that the jurisdiction is in the Carroll County Circuit Court. Jurisdiction over the enlarged district is in the Circuit Court of Carroll County, if this Section 40 is valid. *Page 20
The discussion of the Federal question will dispose of all questions, both State and Federal. The XIV. Amendment to the Federal Constitution, Section 1, (the portion here involved) goes to the equal protection of the law, and due process. There is absolutely nothing in Section 40 of the Act of 1913 which denies to the citizen either of the things guaranteed by this portion of the Federal Constitution. The section provides for the institution of a proceeding either to change the plan of reclamation, or to change the boundary lines. Owners of land adjacent to a district already formed might be interested in either of these matters, but under this Section 40 they would have to be notified and have a hearing in a duly constituted tribunal.
This Act of 1913 is not the first law authorizing the extension of the boundary lines of drainage districts. In Squaw Creek Drainage District v. Turney, 235 Mo. 80, this court had up the matter of extending drainage districts under the Act of 1895. In this case the point was made that outside territory could not be taken in and made to pay obligations already created by the original organization. We ruled that no constitutional provision prevented the extension of this district.
So, too, in Elsberry Drainage District v. Harris, 267 Mo. 139, counsel urged that the notice (by publication) was not due process of law, but whilst we reversed and remanded that cause upon another ground, this particular contention was not sustained. We have here a case for extension under the Act of 1913, and we again approved the Squaw Creek Drainage District Case, supra. We have long since held that notice by publication in cases under drainage laws is sufficient even against residents of the county. [Drainage District v. Campbell, 154 Mo. 151.] The validity of drainage laws in general is fully discussed in Land Stock Co. v. Miller, 170 Mo. 241. And the validity of such laws under the XIV. Amendment to the Federal Constitution is fully discussed in Hagar v. Reclamation District, 111 U.S. 701, and subsequent cases follow this case. *Page 21
It is suggested that an inequality is created by our Section 40, in that the landowners come in under different circumstances from those in the original district. It may be true that some of them are unwillingly brought in, but such is the case in the organization of the original district. So also there is a difference in the bringing in of new territory to a previously incorporated city or town, but such laws have been upheld generally. [Carrithers v. City of Shelbyville, 104 S.W. 744, 17 L.R.A. (N.S.) 421.]
Our Section 40 of the Act of 1913 provides for a hearing upon all questions vital to the interest of the parties. They have their day in court upon all vital questions. There is no failure of due process, nor is there inequality before the law. There is due process and equal protection, and the claim to the contrary is without foundation.
With this added discussion, I agree to the opinion. James T.Blair, C.J., and Elder, Higbee, David E. Blair, and Walker,JJ., concur in these views.