The Holt County sentinel., 1896-12-04
FrId av. December 4. 1896.
The Forest City Levee.

ers of the land benefited will learn why
creased this year:
TIE State Of Missouri ex rel. BenJ. min
Ii. Frazer vs. The County Court Of Hot
County. Missouri.
Opinion of the cpurt-declsion by
Robinson,J j.
This is a proceeding by mandamus,
instituted IN the circuit court of Holt
county, to compel the county court 10
levy a tax upon the lands scheduled and
reported to have been benefited by the
construction of ditch OF improvement
known as Craig Ditch, No. ..
Briefly stated, the facts as shown by
the pleadings are that at the regular
May term. 1879, OF the county court a
petition, signed by Gerber, Goldberry
and Others, who were owners Of contigu
Gus bodies OF swamp or overhowed lands
in said county, vas presented, asking for
the construction of a certain ditch 10
township 62, rsnge 80 IN said county un-
der the provisions of an act OF 1869 (ses-
sion acts 1869, page 63). On May 4, 1915,
the evidence was heard and the work
was found to be practicable, and that a
majority in interest of the owners OF the
contiguous bodies of land to be affected
thereby had signed the petition and
,;.,,A;a4 sha;. ,.ill;nv,oSs tn r,.v fha,r
part OF the expense and cost OF the work.
1t was also found, as fact, that due
notice of the presentation OF the petition
had been given. The county court ap-
pointed three commissioners to superin-
tend the construction OF the work, and
these commissioners, under an order OF
the court, viewed the lands and made an
estimate Of the probable cost Of the
work, aud did all other things required
by the act aforesaid They then invited
bids by sealed proposals. ia writing. and
one Sheridan, being found to be the low
est bidder, they entered into contract
with him and the work WIS by him COM
pieted during that year in accordance
with the contract ard reported to the
court by the commissioner, and their re-
port was accepted and approved by an
order entered of record, and proper
bond was gwen for the faithful perfor-
nance Of the work as required by law.
That the commissioners made a descrip-
tion list Of sections and part OF sections
that would be wholly or 10 part bens-
flied by the work, stating the owners
names and the prospective value of the
lands after the completion OF the work,
and also estimated the benefits which
they believe would accrue to the county
at large by reason OF the improvement
on account of the increase in valuation
Of the taxable property in the county
caused thereby; that after the WORK had
been completed and upon the certificate
OF the commissioner, the clerk OF the
county court issued to Sheridan his or
der or warrant NJ. 20 on the treasurer
of Holt county for the sun Of S5l95S as
part payment for the construction of
said work under the direction and sane
tion of the county court, dated Decem-
ber 10, 1877, and the warrant was on
that date presented by Sheridan TO said
treasurer for payment and endorsement,
and stamped by him mot paid for want
OF funds" In 1873, for value received,
Sheridan sold this warrant to relator,
and OF May Ia, 1881, the treasurer paid
relator S1O6.23 thereon, and same was
credited IN writing on the warrant, and
again on March II, 1885, s24.37 was paid
by the treasurer on said warrant and
credited IN the same manner upon the
back Of said warrant. The petition fur
ther states that there had been no money
since in the hands Of the treasurer for
the payment Of said warrant in whole
or in part, and that the same had been
presented from time t9 time for payment
and refused on account OF lack OF funds;
that on March 13, 1882. written ap-
plication was made and filed in the
county court for the levy Of special
assessment for the payment OF this war
rant, with others then due, which was
by the court refused, and the court then
refused to do anything or to make any
record in the matter whatever. Again,
on February 3, 1892, the relator presen-
ted a written application or petition to
the county court asking for the levy Of
tax for the payment Of this improve
ment and the outstanding warrants
therefor, and the court, by an order Of
record, refused to make such levy or il
any way provide for the payment there
OF, and then this mandamus proceeding
was begun IN the circuit court asking
that the county court be required to
make an additional levy for the purpose
OF paying this warrant, as relator was
entirely without other legal remedy in
the premises. An alternative wri: was
issued and return was filed thereto
which, after an unsuccessful motion
filed by relator to have the greater por-
ton of same stricken out, he filed his re-
ply and the case proceeded to trial and
resulted in a judgment against him ard
a peremptory writ denied, from which
judgment and order this appeal is pros
ecuted. 1t will he unnecessary to set
out the return filed by the defendant,
but It's main features will be gained from
the after comments of the court in this
opinion.
At the trial the warrant was intro
duCsd IN evidence; also the petition of
Goldberg and others; also a copy Of the
record OF the county court reciting the
fact that due notice had been given for
two weeks prior to the time Of the pre-
sentiment Of the petition; that major
it. OF the land owners, etc. had declared
their willingness to pay this proportion
of the improvement, and the appoint
ment of the commissioner to examine
the lands decided uDop, the location