In re East Bottom Drainage & Levee Dist.

• Decision Date: 29 December 1923
• Docket Number: No. 24857.,24857.
• Citation: 259 S.W. 89,305 Mo. 577
• Parties: In re EAST BOTTOMS DRAINAGE & LEVEE DIST. MERIWETHER at al. v. KANSAS CITY
• Court: Missouri Supreme Court

259 S.W. 89

305 Mo. 577

In re EAST BOTTOMS DRAINAGE & LEVEE DIST. MERIWETHER at al. v. KANSAS CITY

No. 24857.

Supreme Court of Missouri, Division No. 2.

December 29, 1923.

Motion to Transfer to Court in Banc Overruled March 4, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Petition by H. M. Meriwether and others for incorporation of the East Bottoms Drainage and Levee District, opposed by the City of Kansas City. From a judgment of dismissal, petitioners appeal. Reversed and remanded, with directions.

Ball & Ryland, of Kansas City, for appellants.

John B. Pew, City Counselor, and Benj. M. Powers, both of Kansas City, for respondent.

RAILDY, C.

Appellants filed their petition in said circuit court to form a drainage and levee district under articles 1 and 9 of chapter 28, R. S. 1919. The petition is in due form, signed by the proper landowners in said proposed district, and asks the incorporation of 1,723 acres of swamp, wet, and overflowed lands lying in a contiguous body along the Missouri and Blue rivers, a part thereof being in the East Bottoms, within the corporate limits of Kansas City, and the remainder lying east of said city in Jackson county.

The city of Kansas City appeared in said cause and filed a motion to dismiss such petition or plea to the jurisdiction, on the ground that a portion of said land was within said city limits and that said city had previously, on March 24, 1922, as authorized by its freeholders' charter of 1908, enacted an, ordinance, including said lands within its limits in a levee and drainage district wholly within said city, and that the circuit court had no authority or jurisdiction to incorporate said lands in said city, with other lands outside thereof in the levee and drainage district, sought to be established by the petition filed in said circuit court; that to construe the general statutes relied on as authorizing said proceeding violates its charter and ordinances, and violates the constitutional provisions giving such city the right to frame its own charter. The court below ruled for the city, and sustained said motion or plea and dismissed said petition, and the petitioners appealed to this court.

I. The real question before us is whether the circuit court had power or jurisdiction to incorporate a drainage and levee district, where part of the lands sought to be included are in Kansas City and part thereof outside of the limits of said city, in Jackson county, upon the petition of the landowners in such district.

Chapter 28, R. S. 1919, has 11 articles relating to the general subject of reclaiming swamp lands by means of levees and drains. Several such articles relate to the incorporation of levee and drainage districts as public corporations, upon the petition of the owners of contiguous swamp, wet, and overflowed land filed in the circuit court or the county court where such lands are located. The petioners in this case sought to establish a drainage and levee district by petition in the circuit court under articles 1 and 9 of said chapter 28. In none of the articles of said chapter 28 is it expressly provided that upon said petition any such lands within the corporate limits of any city may be included in such district. But it is simply provided in general terms in said statutes that contiguous swamp, wet, and overflowed lands within one or more counties or townships in this state may, upon such petition, be included in such district. Whether such districts are so incorporated by the circuit court or by the county court, the levee or drains and other improvements intended to reclaim such wet and swamp lands are to be paid for by assessments of benefits on all the lands in the district, including highways and railroads and railroad rights of way (and perhaps other public utility rights of way), according to the benefit they received from such levee and other improvements. Sections 4390, 4611.

Article 8 of said chapter 28 (2 R. S. 1919, p. 1487) provides for the incorporation of a joint district for draining or sewering "any area in the state of Missouri" (section 4581), for the preservation of the public health, "if such area shall lie in part within and in part without the corporate limits of any city having a population of" more than 300,000 inhabitants. Such corporation to be formed by the filing of a petition by the city or the county court in the circuit court, and ratified by a vote of the legal voters "resident in such area."

The expense for right of way and construction of the drains is to be paid from a uniform "special drainage tax" on all lands in the district, exclusive of highways, not exceeding one-half of 1 per cent. in any one year on the assessed value of such land, or by bonds payable out of the funds raised by such special drainage tax. Sections 4585, 4589.

Another provision in the Revised Statutes especially relating to cities of 100,000 inhabitants or more is section 7856, which authorizes such cites to contract "with drainage districts or with other public corporations in this or any adjoining state for co-operation or joint action in building sanitary * * * sewers * * * and in constructing levees along the banks of, or shortening, diverting or otherwise improving any natural water course to prevent its overflow, where the same overflow is likely to cause injury * * * within the territorial limits of all the districts or corporations so co-operating." So, section 7857 provides that any such city (of 100,000 or more inhabitants) may, with the consent of any adjoining state, and without the co-operation of any public corporation of such state, condemn the necessary land and construct the necessary drains and levees to protect property partly within the city and partly within such other state from floods and overflow and pay for same out of its general fund or by the imposition of special taxes on the lands in the city, within the district deemed benefited.

We have never had before us a case involving the question whether lands within any city could be included with other lands outside such city in a drainage or levee district, under the provisions of articles 1 and 9 of said chapter 28, R. S. 1919, or similar prior statutes. It is provided in such general statutes that in such districts formed on the petition of the landowners, the construction and control of drains and levees therein shall be determined by the vote of the owners of the land and rights of way in such district, and that each landowner have one vote for each acre of land owned by him (sections 4600 and 4381), and that preliminary expenses should be paid by a tax of not more than 25 cents per acre, on each acre of land in the district (section 4608). These provisions would seem to indicate that large tracts of land,. at least one acre in extent, were contemplated as the lands which would compose such district; that is, agricultural or rural lands. Lands in cities are usually divided into lots much smaller than one acre; consequently, city landowners could not vote or have any voice in the control of such district or improvement therein unless they owned one acre of land in such city, which would disfranchise, in all probability, the majority of landowners in such district, if within a city. It was for this reason, no doubt, that said article 8, which did provide for voting on a drainage district partly within the city, provided that the vote should be by the legal voters without reference to whether he had any land or property at all. The scheme of the general drainage and levee laws seems to relate to farming and other lands outside of incorporated cities, except said article 8 and sections 7856 and 7857. In State ex rel. v. Drainage Dist., 291 Mo. 72, 236 S. W. 16, opinion by Ragland, J., the court refers to such general drainage and levee laws, as providing for "rural drainage." But, however that may be as to cities in general (which we need not decide), we think that the provisions of article 8 of said chapter 28 and said sections 7856 and 7857 show that the Legislature assumed that cities of 100,000 and 300,000 or more had authority by their charters to build levees and drains within their corporate limits, and were not deprived of that authority by the general statutes relating to drains and levees, and only required authority from the state to build or acquire drains and levees, or to co-operate and contract with levee and drainage districts outside of the city, in this or another state, to effectually protect the health and property of their citizens from excessive floods or waters, however occasioned. Such provisions of the general statutes negative the idea that the general law intended that any such outside drainage or levee district could be formed by the petition of landowners under the general statutes to embrace lands within any city of 100,000 or 300,000 inhabitants or more with lands outside of such city. This could be done only by the petition of the city itself, or the county court, under said article 8, and then for sanitary drainage purposes only, as therein provided, and not for levees also, which are not authorized by said article 8.

III. But we also hold that, even if said general statutes would authorize this proceeding in the absence of a provision in the Kansas City Charter on the subject, the charter provision of Kansas City providing for such levees and drains within the city is a matter of local municipal concern, and, therefore properly included in such charter, and controls the establishment of levee and drainage districts in said city. Learned counsel do not controvert the proposition that, if it is essentially a matter of local concern, it might be constitutionally inserted in such freeholders' charter,...