Chicago, B. & Q. R. Co. v. North Kansas City

• Court: United States State Supreme Court of Missouri
• Citation: 367 S.W.2d 561
• Docket Number: No. 49190,No. 2,49190,2
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant-Respondent, v. NORTH KANSAS CITY, Missouri, a Municipal Corporation, Respondent-Appellant
• Decision Date: 08 April 1963

Page 561

367 S.W.2d 561

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant-Respondent, v. NORTH KANSAS CITY, Missouri, a Municipal Corporation,

Respondent-Appellant.

No. 49190.

Supreme Court of Missouri, Division No. 2.

April 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 13, 1963.

Andrew C. Scott, Chicago, Ill., Arthur R. Kincaid, Liberty, Clyde J. Linde, Kansas City, for plaintiff-appellant; Eldon Martin, C. W. Krohl, Chicago, Ill., Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.

John B. Ewing, Jr., James E. Lockwood, Kansas City, S. Preston Williams, William Harrison Norton, North Kansas City, for defendant-appellant; Brenner, Wimmell, Ewing & Lockwood, Kansas City, of counsel.

BOHLING, Commissioner.

The City of North Kansas City, Missouri, a municipal corporation, herein referred to as 'City,' invoking the provisions of RSMo 1939, Secs. 7530-7536, sued the Chicago, Burlington & Quincy Railroad Company, an Illinois corporation and herein referred to as 'Railroad,' in the Circuit Court of Clay County, Missouri, to obtain reimbursement for the cost of constructing approximately 514 feet of a subterranean combined sanitary and storm sewer, 10 to 18 feet below the surface of the ground, under and across the Railroad's North Kansas City train yard. Railroad, a nonresident, removed the cause to the United States District Court for the Western District of Missouri. Chicago, B. & Q. R. Co. v. City of North Kansas City, 8 Cir., 276 F.2d 932. Briefly stated, the Railroad's answer presented defenses, among others, that said statutes did not apply in the circumstances of record; that they took defendant's property without due process of law (Mo.Const. 1945, Art. I, Sec. 10, V.A.M.S.), and constituted a local or special law when a general law could have been made applicable (Mo.Const.1945, Art, III, Sec. 40(30)), and also that said statutes contravened provisions of the Constitution of the United States. Upon trial, the City secured a judgment of $138,475.62. Cross appeals resulted. The United States Circuit Court of Appeals for the Eighth Circuit dismissed the City's appeal, vacated the judgment upon the Railroad's appeal and remanded the case to the District Court with directions, applying the doctrine of abstention under which in appropriate instances a case in a federal court may be stayed pending a reasonable opportunity for a state court to pass on the applicability of a state statute to the facts involved and, if involved, the validity of the statute under the state constitution before ruling federal constitutional issues presented. Chicago, B. & Q. R. Co., supra 1. c. 937, 940[7-9]. The mandate, so far as material here and in accord with the opinion, reads:

'On Consideration of the appeal of the Chicago, Burlington & Quincy Railroad Company, It is now here Ordered and Adjudged by this Court that the judgment of the said District Court be, and the same is hereby, vacated and the cause remanded to the District Court with instructions to afford the Chicago, Burlington & Quincy Railroad Company a reasonable opportunity to bring appropriate proceedings in the Missouri courts for the purpose of securing authoritative interpretation of section 7532 of Missouri 1939 Revised Statutes and for determination of the state constitutionality of said statute; the trial court to retain its own jurisdiction of this cause for further proceedings consistent with the views expressed in the opinion of this Court this day filed herein.'

The Railroad, complying with said mandate, instituted this declaratory judgment proceeding (RSMo 1959, V.A.M.S. Secs. 527.010-527.130; Sup.Ct.Rules 87.01-87.11, V.A.M.R.) to determine whether said Sec. 7532 is applicable to the case pending in the United States District Court and, if it is applicable, its validity under the Missouri constitution. The trial court found the issues tried in favor of the City; that is, that Sec. 7532 was applicable and the applicable provisions of RSMo 1939, Secs. 7530-7536 did not contravene any Missouri constitutional provision. Cross appeals again resulted.

The City's answer sought to expand the issues and have the whole case determined in the state courts on the merits in this proceeding. The Railroad's motion to strike all the additional issues sought to be raised in the City's answer was sustained. The City claims this ruling was erroneous. It need not be considered until the Railroad's appeal has been disposed of.

The City invokes Secs. 7530-7536, RSMo 1939 (Secs. 1-8 of Laws 1909, p. 364); stressing Sec. 7532 (Sec. 3 of said Act of 1909), and an agreement between the Railroad and the City of December 28, 1949, wherein the Railroad agreed to reimburse the City if held liable therefor by a court of competent jurisdiction. The Revision Committee of 1949 rearranged said sections, and they now appear as RSMo 1959, V.A.M.S., Secs. 389.670-389.690; said Secs. 7530, 7531 and 7532 being paragraphs1, 2 and 3, respectively, of Sec. 389.670; Sec. 7533 being p1 and Sec. 7534 being paragraphs2 and 3 of Sec. 389.680; and Secs. 7535 and 7536 being paragraphs1 and 2, respectively, of Sec. 389.690. The sense, meaning and effect of said statutes were not affected by such rearrangement. See Mo.Const.1945, Art. III, Sec. 21; RSMo 1949, Sec. 3.060; Kansas City v. Travelers Ins. Co., Mo.App., 284 S.W.2d 874, 878 and authorities cited. The 'catch words' appearing in connection with the public statutes are not part of the bill. State v. Lawson, 352 Mo. 1168, 181 S.W.2d 508, 513.

The title of the act, Laws 1909, p. 364, states it is 'for the purpose of facilitating the building of sewers in incorporated' Missouri cities having a population of 30,000 or less 'and fixing the duties of' railroads 'in relation thereto, and providing penalties against them for * * * failure * * * to perform such duties * * *.'

Section 7530 (Sec. 1 of the Act) makes it the duty of reailroads passing through such cities 'to construct at their own expense, within the corporate limits of such village, town or city along the lines of their said railroads or railroad right of way, such sewers as shall be of sufficient capacity to at all times carry off all the surface water that may collect or accumulate along their right of way.'

Section 7531 (Sec. 2 of the Act) provides that such sewers be constructed in a substantial manner, specifies certain requirements and that they 'shall be of sufficient volume and depth to carry off at all times all surface water, with such facility as to prevent at all times an overflow therefrom'; and have 'good, safe wagon and foot crossings constructed over them.'

The City does not question that Secs. 7530 and 7531 apply to the drainage of storm and surface water accumulating along railroad rights-of-way. Terminal R. R. Ass'n of St. Louis v. City of Brentwood, 360 Mo. 777, 230 S.W.2d 768; Chicago, B. & Q. R. Co. v. City of North Kansas City, 8 Cir., 276 F.2d 932, 934.

Section 7532 (Sec. 3 of the Act and stressed by the City) reads: 'It shall be the further duty of all such * * * corporations to construct under their railways, from one side of their right of way to the other, such sewers as shall be the city council, board of aldermen or legislative body of such villages, towns or cities be deemed necessary to facilitate the proper drainage of such village, town or city as provided herein.'

Section 7533 (Sec. 4 of said Act) provides that when, by ordinance, it is deemed 'necessary to construct any public or district sewer,' such city shall cause to be filed plans and specifications for such sewer with its clerk, and cause a copy thereof to be served on the railroad involved, together with a notice to construct said sewer from one side of its right-of-way to the other within 'not less than thirty days, and not more than three months' after the service of said notice.

Section 7534 (Sec. 5 of the Act) provides for the manner of the service of such notice, et cetera, and that: 'Thereupon such person, company or corporation shall proceed to construct such section of the proposed sewer at their own expense.'

Sections 7534, 7535 and 7536 provide penalties for the failure by a railroad to construct such sections of a proposed sewer and impose liability for double damages from overflow occasioned by its failure to comply with the Act. See Atchison, T. & S. F. Ry. Co. v. Ross, W.D.Mo., 88 F.Supp. 451, 454.

Material facts have been stipulated by the parties.

In 1949 North Kansas City was a city of the Fourth Class with less than 30,000 inhabitants. It was vested with authority to provide for drains and sewers and to levy taxes to pay therefor. (RAMo 1939, Secs. 7197, 7181, 7182; RSMo 1949, Secs. 88.670, 88.717, 88.720 respectively.) It took the following official action with respect to the sewer here involved.

By Ordinance No. 1460 adopted February 1, 1949, the City called a special election for submitting a proposition to increase the City's indebtedness and issue $700,000 of negotiable general obligation coupon bonds, payable out of an annual tax levied in addition to other taxes, 'for the purpose of acquiring rights of way, constructing, extending and improving the sanitary and storm sewer systems of said City.'

Ordinance No 1469, adopted March 8, 1949, found and declared that said election resulted in favor of said $700,000 increased indebtedness and the issuance of said bonds.

By Ordinance No. 1470, adopted March 8, 1949, the City authorized the issuance of said $700,000 Sanitary and Storm Sewer general obligation bonds and levied an annual ad valorem tax on all taxable tangible property in the City for the discharge of the principal and interest of said bonds.

By Ordinance No. 1498, adopted May 24, 1949, the construction of a combination storm and sanitary sewer and sewage pumping station, to be known as the '26th Avenue Storm and Sanitary Sewer,' was authorized, the Board of Aldermen deemi...