In re East Bottoms Drainage & Levee District
| Decision Date | 18 December 1924 |
| Docket Number | 24857 |
| Citation | 259 S.W. 89,305 Mo. 577 |
| Parties | In re EAST BOTTOMS DRAINAGE & LEVEE DISTRICT; H. M. MERIWETHER et al., Appellants, v. KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.
Reversed and remanded.
Ball & Ryland for appellants.
(1) Article XII and Ordinance No. 41710 are unconstitutional and void, and neither of them constitute any valid reason for denying petitioners a hearing. Mo. Constitution, secs. 20 and 30, art 2; U.S. Constitution, sec. 1, Amendment XIV; Mo Constitution, sec. 16, art. 9 and amendments; Bueslog v Gulfport, 72 So. 896. (2) Said article of said charter and said ordinance invade the policy of the State, are general legislation, and are not in harmony with the Constitution and laws of the State. R. S. 1909, chap. 41, sec. 5496 et seq.; R. S. 1919, chap. 28, sec. 4378 et seq.; State ex rel. v. Police Commrs., 80 Mo.App. 206; Ewing v. Hoblitzelle, 85 Mo. 64; Moberly v. Hoover, 93 Mo.App. 663; St. Louis v. Meyer, 185 Mo. 583; State ex rel. v. Telephone Co., 189 Mo. 83; Peterson v. Railroad, 265 Mo. 462, 480; State ex rel. v. Field, 270 Mo. 500; Mullins v. Kansas City, 268 Mo. 444; State ex inf. v. Koeln, 270 Mo. 187; Kansas City v. Field, 285 Mo. 276; State ex rel. v. Men's Club, 177 Mo.App. 571; City of Higbee v. Burgin, 197 Mo.App. 685; State ex inf. v. albany Drainage Dist., 290 Mo. 33, 52; State ex rel. v. Little River Drain. District, 291 Mo. 267, 273; State ex rel. v. Miss. & Fox Drain. Dist., 292 Mo. 696, 704. See also the illuminating discussion by Court en Banc, and by two dissenting judges, Ordinance No. 39946, 252 S.W. 404. (3) Said Article 12 and said ordinance seek to make a legislative question of what the Constitution and laws of the State declare shall be a judicial question. Mo. Constitution, sec. 20, art. 2; R. S. 1919, chap. 28. (4) Said Article 12 of said charter and said ordinance seek to condemn and take land for private instead of public purposes. State ex rel. v. Wiethaupt, 231 Mo. 449, 470; State ex rel. v. West, 272 Mo. 304; In re Birmingham Drainage District, 274 Mo. 140; Morrison v. Morey, 146 Mo. 543, 563; State ex rel. v. Kinder, 291 Mo. 267. (5) The court below misconstrued Chapter 28, Revised Statutes 1919, and all of it. (6) Property outside the levee district will inevitably be damaged by the building of the proposed dike. No provision has been or can be, under the charter, made to ascertain or pay it. Drainage District v. Ham, 275 Mo. 384. (7) "The policy of the State" (authorities supra) has been continued by the Legislature. Laws 1921, pp. 293 to 304; Laws 1923, pp. 162 to 170.
John B. Pew and Benj. M. Powers for respondent.
(1) The provisions of the charter rather than the state statutes govern the construction of levees and drains within the city limits. (a) The construction of levees and drains within a city is a matter of local concern. Kansas City v. Field, 99 Mo. 352; Kansas City ex rel. v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Marsh Oil Co., 140 Mo. 458; Mound City Land & Stock Co. v. Miller, 170 Mo. 240; Kansas City v. Mastin, 169 Mo. 80; Stanton v. Thompson, 234 Mo. 7; Kansas City v. Boruff, 243 S.W. 167. (b) The policy of the State as expressed in its legislative enactments confines the applicability of levee and drainage district acts to rural territory. R. S. 1919, art. 8, chap. 28 (Secs. 4581 and 4582); R. S. 1919, secs. 7856, 7857, 7858, 7859; Laws 1921 (Extra Sess.) p. 110; R. S. 1919, sec. 4506. (2) Article 12 of the charter is valid and does not deny due process of law. (a) The common council has power to exercise its discretion in establishing the benefit district (the levee district). McMurry v. Kansas City, 283 Mo. 479; Kansas City v. Baird, 98 Mo. 215; Kansas City v. Smart, 128 Mo. 272; Kansas City v. Bacon, 147 Mo. 259, 273; French v. Barber Asphalt Co., 158 Mo. 534, 181 U.S. 324. (b) Parties in the benefit district have no right to be heard as to the determination of the total amount to be assessed, but only as to how it shall be spread over the benefit district. State ex rel. Tuller v. Seehorn, 246 Mo. 568; Kansas City v. Land Co., 260 Mo. 395, 241 U.S. 419; Kansas City v. Terminal Railway Co., 201 S.W. 541. (c) The charter does not seek to make the levee proceeding a legislative question at any point where it should be a judicial question. Charter, Art. 13, sec. 8. (d) The condemnation of land for levees is for a public use. Kansas City v. Liebi, 252 S.W. 404; State ex rel. Kinder v. Little River Drain. District, 291 Mo. 267; Mound City Land & Stock Co. v. Miller, 170 Mo. 240; Morrison v. Morey, 146 Mo. 543.
OPINION
Appellants filed their petition in the Circuit Court of Jackson County to form a drainage and levee district under Articles I and IX of Chapter 28, Revised Statutes 1919. The petition is in due form, signed by the proper landowners in said proposed district, and asks the incorporation of 1723 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, Revised Statutes 1919, has eleven 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 of the county in which such lands are located. The petitioners in this case sought to establish a drainage and levee district by petition in the circuit court, under Articles I and IX 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 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 (Secs. 4390, 4611).
Article VIII of said Chapter 28 (Vol. II, 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 one 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 (Secs. 4585, 4589).
Another provision in the Revised Statutes especially relating to cities of 100,000 inhabitants or more, is Section 7856, which authorizes such cities 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 bank of, or shortening, diverting or otherwise improving any natural watercourse, 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...
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