Des Moines & Mississippi Levee Dist. v. Chicago, B. & Q. R. Co.

• Decision Date: 29 February 1912
• Citation: 145 S.W. 35
• Parties: DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1 v. CHICAGO, B. & Q. R. CO.
• Court: Missouri Supreme Court

145 S.W. 35

DES MOINES & MISSISSIPPI LEVEE DIST. NO. 1 v. CHICAGO, B. & Q. R. CO.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. REMOVAL OF CAUSES (§ 109)—REMAND— PROCEDURE IN STATE COURT.

After the federal Circuit Court has declined to entertain jurisdiction of a cause removed from a state court, and has remanded the cause, it is not error for the state court to proceed to trial and judgment, though defendant claims that it has injected a federal question into its answer, with a view to having the same determined by the federal Supreme Court.

2. LEVEES (§ 7)—LEVEE DISTRICT—RAILROAD RIGHT OF WAY—INCLUSION—PROCEEDINGS.

Under Rev. St. 1909, §§ 5499, 5704, providing that levee districts are public corporations, and Rev. St. 1899, § 8365a, as added by Laws 1907, p. 336, providing for the inclusion of railroad property within such districts when benefited, a petition for an order requiring a railroad company to show cause why part of its roadbed and right of way should not be included in a levee district and be assessed for benefits was properly brought by the district in its own name, and not in the name of the board of supervisors of the county.

3. LEVEES (§ 7)—QUESTIONS NOT RAISED BELOW—PROPER PARTIES.

An objection that a petition to include railroad property within a levee district was not brought by the proper party could not be urged for the first time on appeal.

4. LEVEES (§ 23)—CONTRACT OBLIGATIONS— ASSESSMENT OF BENEFITS FROM LEVEE— "GENERAL WELFARE."

Since assessments for benefits from a levee are justified under the police power, rather than the taxing power, in furtherance of the "general welfare," which includes the public health, as well as other things, the inclusion of property of a railroad in a levee district and its assessment for benefits is not violative of the railroad company's charter rights.

5. CONSTITUTIONAL LAW (§ 290)—DUE PROCESS OF LAW—LEVEE ASSESSMENTS.

Such assessments do not deprive the railroad company of its property without due process of law.

6. LEVEES (§ 25)—LEVEE DISTRICT—RAILROAD PROPERTY — SUBSEQUENT INCORPORATION.

Where a railroad company was not a party to original proceedings for the organization of a levee district, but part of its right of way was subsequently brought into the district by petition, it could not properly be assessed for benefits conferred by work already done and paid for by other parties.

7. LEVEES (§ 22) — LEVEE ASSESSMENTS — VALIDITY—"TAX."

An assessment for benefits by the construction of levees by a levee district is not a "tax," and cannot therefore be legally objected to because nonuniform, or not in proportion to the value of the property.

Appeal from Circuit Court, Clark County; Chas. D. Stuart, Judge.

Action by the Des Moines & Mississippi Levee District No. 1 against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for further proceedings.

O. M. Spencer, F. T. Hughes and Palmer Trimble, for appellant. C. T. Llewellyn, for respondent.

GRAVES, P. J.

The plaintiff, the Des Moines & Mississippi Levee District No. 1, under its corporate name, filed its petition in the circuit court of Clark county August 24, 1908, asking that the defendant railway company be summoned into court to show cause, if any it had, why its roadbed and right of way should not be included in and made part of the levee district, and be assessed with such benefits as it had received, or might thereafter receive, by reason of the improvements made and to be made by the said levee district. The petition was filed under the act of 1907, and that portion relating to the course of proceedings reads: "Before the proceedings had in this section shall be had, the board of supervisors shall file in the office of the clerk of the circuit court of the county in which such levee district is, or may be located, a petition reciting the organization of such levee district, the location of such railroad or railroads within its limits, the improvements made, or to be made, as shown by the report, maps, plans and profiles by the topographical survey of the topographical engineer and that the improvements already made or proposed to be made, will be of material benefit to such railroad company or corporation, and asking that such railway corporation or company be summoned into court to show cause why such railroad right of way, roadbed or track belonging to or owned by such railway company or corporation should not be included in and made a part of such levee district, and be assessed with such benefits as will, or have accrued to it by reason of the improvements made, or proposed to be made. Such railway company or corporation, after having been duly summoned, shall on or before the third day of the term of court to which it may have been summoned to appear, file its objection or objections in writing, if any it may have, why it should not be included in and made a part of such levee district, and be assessed with benefits; and all such objections shall be heard by the court in a summary manner, without any unnecessary delay." Laws of 1907, p. 336. The petition filed follows the language of the statute. The cause, upon the petition of defendant, was removed to the federal court, but upon motion of the plaintiff was remanded to the state court.

The many points made appear fully in the answer, which reads:

"Now comes the defendant, Chicago, Burlington & Quincy Railroad Company, a corporation organized and existing under the laws of the state of Illinois, that for answer and objections to the matters and things stated in plaintiff's petition herein stated: That it has no knowledge or information sufficient to form a belief as to the allegations in plaintiff's petition contained, and therefore denies each and every one of said allegations therein contained.

"For further answer defendant states that heretofore the defendant in this cause filed a petition and bond under the provisions of the act of Congress for the removal of causes from the state to the federal courts. Said petition prayed to have said cause removed to the Circuit Court of the United States, Northern Division of the Eastern District of Missouri, and that defendant did file papers in said United States court, as provided in the order of removal, and that thereafter said United States court, upon the allegations of plaintiff, and by order of court, remanded said cause to this court, to all of which actions this defendant objected and excepted to the rulings of said court, and herein renews its exceptions, and avers that the cause was properly removed from this court to said United States Circuit Court, and that the cause upon said removal vested in said United States court.

"For further answer, this defendant says that the alleged act of the Legislature of this state, known as section 8365a of the Legislature of Missouri of 1907, is null and void as against the rights of this defendant in the premises herein, in this: That said act attempts to divest this defendant of its vested right in the premises, and to charge this defendant with a debt of the plaintiff corporation long since created by said corporation upon the property within its jurisdiction, and has been, in whole or in part, paid by the said corporation. That said act deprives this defendant of its rights under the laws of this state existing at the time said drainage and levee district was formed, in this: That defendant had no right to participate in or become a member of said levee district, nor have its property assessed with such equal proportion of alleged benefits as were necessary for the purpose therein in proportion and equally with all other owners of land in said levee district.

"Answering further, defendant says that said act attempts to make this defendant a part of said district without its consent, and without any right, under the laws when said district was formed, to participate and become a part of said district when the same was being formed.

"Defendant, further answering, says that the laws relative to plaintiff's district give no authority to levy and collect taxes, other than for the construction and maintenance of such levee district, and that, if defendant shall be assessed as prayed for in plaintiff's petition the money so collected upon said assessment would not be thus collected for the construction or maintenance of said levee district, but for the sole and only use of the plaintiff herein, as profit or excessive money in its hands.

"Further answering, defendant says that said act is special and class legislation, and is void, within the Constitution of this state, and against the defendant in the premises herein. That said act is null and void, within the meaning of the fourteenth amendment to the Constitution of the United States, and seeks to take property of this defendant for the use of plaintiff without due process of law.

"Further answering, defendant says that the acts of plaintiff herein seek to deprive this defendant of the equal protection of the laws, within the meaning of the fourteenth amendment to the Constitution of the United States.

"Further answering, defendant says that plaintiff seeks, by judgment and order of this court, to assess defendant for benefits which, it is alleged, defendant receives by said levee district, when, in law and in fact, it is the duty of the board of supervisors to appoint commissioners, disinterested freeholders of the county, and assess benefits accruing to each piece of land, in whole or in part, with the name of the owner thereof.

"Having fully answered and stated defendant's objections herein, this defendant asks to be dismissed, with its costs in this behalf laid out and expended."

Reply was general denial. The cause was tried and decree entered for the plaintiff. The material findings and the decree proper read:

"That the right of way, roadbed, and embankments owned by ...