Birmingham Drainage Dist. v. Chicago, B. & Q. R. Co.

• Decision Date: 22 December 1917
• Docket Number: No. 20386.,20386.
• Citation: 202 S.W. 404,274 Mo. 140
• Court: Missouri Supreme Court
• Parties: BIRMINGHAM DRAINAGE DIST. v. CHICAGO, B. & Q. R. CO. et al.

202 S.W. 404

274 Mo. 140

BIRMINGHAM DRAINAGE DIST. v. CHICAGO, B. & Q. R. CO. et al.

No. 20386.

Supreme Court of Missouri, Division No. 1.

December 22, 1917.

Rehearing Denied April 8, 1918.

Error to Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Proceedings in the circuit court for the assessment of benefits accruing to property situated in the Birmingham Drainage District and to assess damages to property to be taken or injuriously affected in the construction of its works. From decree rendered, the Chicago, Burlington & Quincy Railroad Company and others bring error. Writ of error dismissed.

James L. Minnis, of St. Louis, H. J. Nelson, of St. Joseph, N. S. Brown, of St. Louis, Fred S. Hudson, of Kansas City, M. G. Roberts, of St. Joseph, and H. L. Moore, of Excelsior Springs, for plaintiffs in error. Haff, Meservey, German & Michaels, of Kansas City, Martin E. Lawson, of Liberty, and Beardsley & Beardsley, of Kansas City, for defendant in error.

BROWN, C.

This is a proceeding in the circuit court for Clay county for the assessment of benefits accruing to property situated in the Birmingham drainage district in that county, and to assess damages to property to be taken or injuriously affected in the construction of its works. The proceeding for the incorporation of the district was instituted September 22, 1913, under the provisions of the act of the General Assembly approved March 24, 1913, "Pertaining to the organization of drainage districts by circuit courts" (Laws of Mo. 1913, p. 232), by the filing of the articles of association and giving the notice required by the act. The articles were signed by eighteen persons and corporations owning more than one-half in acreage of the 5,390 acres of land in the proposed district. A formal decree of incorporation was entered by the court, and was brought to this court by appeal, where it was affirmed. Birmingham Drainage District v. Chicago, M. & St. P. R. Co., 266 Mo. 60, 178 S. W. 893. Supervisors were thereupon elected and such proceedings taken that benefits and damages were assessed; the former amounting to $572,376.27, and the latter to $25,341.20. The estimated cost of the work, including the damages, was $350,657, and the court entered its decree accordingly. The Chicago, Burlington & Quincy Railroad Company, Chicago, Milwaukee & St. Paul Railway Company, and the Wabash Railway Company, appealed from the judgment to this court on April 1, 1916. In March, 1917, the appeal was, by leave of the court, dismissed, and the appellants sued out this writ of error, in which seven other landowners in the district joined.

It is sufficiently accurate for the purpose of this statement to say that more than 100 landowners against whose property benefits were assessed failed to file exceptions to the report of the commissioners, and were not notified of the application for or issue of this writ of error, and have made no appearance here. Upon the return of the writ the Birmingham drainage district, appearing for that purpose only, filed its motion to quash it on the ground that error does not lie in a case of this character. This motion was by the court taken with the case and is now up for consideration.

The benefits assessed against the property of the three railway companies respectively, as modified by the court, were as follows: The Chicago, Burlington & Quincy, $18,000; Chicago, Milwaukee & St. Paul, $7,000; Wabash, $71,000. The decree states that in arriving at those amounts the court took into consideration, and deducted from the actual gross benefit found, the estimated cost necessary to be incurred by each railway company in conforming its tracks to the works of the district; which amounted, as there was evidence tending to show, in the case of the Wabash, to $42,000; the Chicago, Burlington & Quincy, $25,000; and the Chicago, Milwaukee & St. Paul, $17,000. The damages awarded by the jury to each railway company were confined to land actually taken for or damaged by the work, and amounted to $250 each. The court refused the request of the companies to submit the question of benefits to a jury.

The plaintiffs in error, in their brief, state the issues as follows:

"The principal errors complained of, stated in a broad general way, are:

"The court refused to submit the question of benefits accruing to the corporate defendants, as well as the damages which would be caused to them to a jury.

"The court's assessment of benefits is grossly excessive under the evidence as well as under the law; that is, the assessment of benefits made by the court is not sustained by any evidence in the case, if measured by the rule laid down by the statutes, that the benefits shall be assessed at the `increased physical efficiency and decreased cost of maintenance.' That if such statutory rule is so construed as to justify the result arrived at by the court, then the statute itself would be void as a taking of property without due process of law, and a denial of equal protection of the law. The claim, as to this, is that the statute is void for these reasons, even when correctly construed, but that construed and applied as the court has applied it in this case, as shown both by results and declarations of law, then the statute is clearly and unquestionably subject to the foregoing objections."

I. In the gateway which leads to the merits of this case stands the motion to quash the writ of error which is responsible for its presence in this court. That the question so presented is not without difficulty under our Constitution and statutes in their application to this proceeding is evident upon the most casual examination. That this difficulty was fully appreciated by the plaintiffs in error, and that they dismissed the appeal upon which the matter was pending in this court and substituted this writ for the purpose of giving us a jurisdiction which we did not have and could not exercise by virtue of the appeal, is frankly conceded in their printed argument upon this motion. They refer to our decision In re Mississippi & Fox River Drainage District, 270 Mo. 157, 192 S. W. 727, as holding that an appeal allowed in a proceeding under the act of 1913 brought up two questions only:

"First, whether [a just] compensation has been allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvement."

They describe the language used in the act as a trap which "furnishes a very plain and evident reason why the appeals were dismissed, and this attempt made by writ of error to obtain a real review of the decision."

We have noted this phase of the argument because it authorizes us to assume, without further discussion which could only lead to the same result, that only a limited appeal is authorized by the statute, while a broader jurisdiction is invoked by the writ of error. Whether this is based upon the theory that, whenever the Legislature invokes the assistance of a court in the performance of its governmental duties by a special proceeding of any character whatever, its final action is brought under the yoke of section 2054 of the General Code (R. S. 1909) notwithstanding the legislative desire to the contrary, or upon the provisions of section 3 of article 6 of the state Constitution giving this court "a general superintending control over all inferior courts," does not so plainly appear.

II. Although article 3 of the state Constitution, while distributing the powers of the state government into three distinct departments—the legislative, executive, and judicial—and forbids any person or collection of persons charged with the exercise of powers properly belonging to ore of those departments to exercise any power properly belonging to either of the others, we have held (State ex rel. v. Higgins, 125 Mo. 364, 368, 28 S. W. 638) that duties which are not judicial may be performed by judicial officers unless they are clearly such as are confided by the Constitution itself to the executive or legislative department. This literal and altogether reasonable construction is founded in the necessities inherent in all governments. While the power to indicate what the laws shall be is purely legislative, the power to authoritatively determine what they are is judicial, and these are frequently so interlocked as to suggest the assistance of the judiciary in giving practical effect to a legislative enactment. The case before us is an excellent illustration of this principle, because it includes in the accomplishment of the single result contemplated by the Legislature the performance of both legislative and judicial functions distinctly separated by the Constitution, and each definitely assigned to its own magistracy. To accomplish the single purpose of putting in action a drainage district required not only the enactment of a statute fixing the extent, purpose, and general powers of the district, which is a purely legislative function, but the appropriation of private property for such purpose and determining the damage therefor by jury trial which are distinctly judicial functions. Between these lies "no man's land," a region of action unclassified by the terms of the Constitution.

That these districts are public corporations, which may only be constituted by legislative authority exercised through an enactment of the General Assembly and put into effect either directly or by appropriate agencies designated by legislative authority, has been too often held by this court to be open to argument. Egyptian Levee Co. v. Hardin, 27 Mo. 495, 72 Am. Dee. 276; Columbia Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 543, 48 S. W. 629; State v. Drainage District, 192 Mo. 517, 90 S. W. 722; Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. It. A. 190, 94 Am. St. Rep. 727; State v. Taylor, 224 Mo. 393, 123 S. W. 892; Squaw Creek Drainage District v. Turney, 235 Mo. 80, 138 S. W. 12; ...