In re Incorporation of Birmingham Drainage District
| Citation | 178 S.W. 893,266 Mo. 60 |
| Parties | In Re Incorporation of BIRMINGHAM DRAINAGE DISTRICT v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant |
| Decision Date | 09 August 1915 |
| Court | Missouri Supreme Court |
Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.
Affirmed.
M. G Roberts, Simrall & Simrall, Fred S. Hudson, D. C. Allen James L. Minnis, N. S. Brown and Craven & Moore for appellants.
M. E Lawson and Beardsley, Schaith & Beardsley for respondent.
OPINION
This is an appeal from a decree of the Clay County Circuit Court incorporating the Birmingham Drainage District in Clay County. The proceedings for the incorporation of the district were begun under the Act of March 24, 1913 (Laws 1913, p. 232 et seq.). The articles of association filed conformed to the requirements of that act. The property of the defendant railway, in so far as it was designed to include it in the district, is particularly described. The boundaries of the district as set out in the articles of association include 5,390 acres, and the signers of the articles of association represent themselves as owning, in the aggregate, several hundred acres in excess of one-half of the total. Appellant appeared and filed objections to the incorporation of the district as follows: (1) Denying every allegation "in the petition contained." (2) That the incorporation was not sought in good faith, in that the real object thereof was to build an expensive levee along the river front of the proposed district, and that any drainage done would be only incidental to the construction and maintenance of the levee; that the incorporation, if granted, should be under the Act of 1913 (Laws 1913, p. 290 et seq.) pertaining to the organization of levee districts by circuit courts; and that the effort to incorporate under the Act of March 24, 1913 (Laws 1913, p. 232 et seq.), was a subterfuge devised in order to obtain powers the district could not exercise if incorporated in good faith under the act pertaining specifically to levees. (3) That appellant's property could not be benefited or protected by any plan of improvement the proposed district might adopt. (4) That the property, including that of appellant, proposed to be included in the district, did not constitute one contiguous body of wet, swamp, or overflowed lands or lands subject to overflow, within the meaning of the act under which petitioners were proceeding. (5) That the Act of March 24, 1913 (Laws 1913, p. 232 et seq.), had been repealed by the Act of April 7, 1913 (Laws 1913, p. 290 et seq.), "and the publication made herein is not sufficient notice of said incorporation under said act" of April 7, 1913. The trial court heard a great deal of evidence upon the location, character, ownership, and likelihood of the land within the proposed district to overflow, and, at the conclusion thereof, overruled all objections and entered its decree incorporating the district as prayed. The district lies along the Missouri river and has a frontage thereon of nearly or quite eleven miles. The relevant evidence will, when necessary, be sufficiently stated in connection with the discussion of the questions presented for review.
I. In 1879 (Laws 1879, p. 132 et seq.) the Legislature enacted the original act providing for the organization by the circuit court of drainage districts "to reclaim and drain swamp and overflowed lands," and this act was incorporated in the chapter on "Lands" in the Revised Statutes of 1879, appearing as section 6207 et seq. By the processes of amendment the Act of March 24, 1913 (Laws 1913, p. 232 et seq.), has grown therefrom. In the Act of 1879 it was clearly provided that ditches, drains, levees, dikes and other works adapted to the reclamation of swamp and overflowed lands might be constructed by any district organized under that act. The title of that act was, "An Act to provide for the formation of drainage districts, to reclaim and drain swamp and overflowed lands in this State." That title was broad enough to include provision for any work, whether drain or levee, effectual for the purposes of reclamation. As a consequence, any subsequent amendment by mere reference to that act by section, article, and chapter, as it later appeared in the Revised Statutes, fell within the title so long as such amendment related to the general purposes of reclamation, and all subsequent amendments have related thereto and have been germane to the subject-matter of the Act of 1879. The fact that the Act of 1879 and subsequent amendments thereto have designated districts organized thereunder as "drainage districts" does not limit the activities of such districts to digging ditches, since both the title of the act and the act itself and the amendments thereof have always defined such districts in such manner as to include the broad, general methods of reclamation. The powers of such districts, expressly given, are not limited by a mere name conferred. One of the methods of reclamation is the construction of levees. The title of the Act of 1879 includes all methods of reclamation, using the general words "to reclaim and drain." The Act of 1879 clearly contemplated the construction of levees by districts organized under it, and the Act of March 24, 1913, expressly provides for the construction thereof. [Sec. 26, Laws 1913, p. 249.]
The act of April 7, 1913 (Laws 1913, p. 290 et seq.), does not provide an exclusive method for the organization of districts when the construction of levees is contemplated. The original act, from which the last has been developed by amendment, was passed in 1887 (Laws 1887, p. 208 et seq.). When it was passed there was no provision in our statutes whereby a district could be organized in the circuit court for the drainage and reclamation of swamp or overflowed lands except upon the petition of a majority in interest of the resident owners. [R. S. 1889, sec. 6517.] The Act of 1887 authorized the organization of a levee district upon the application of a majority in interest of the owners of lands sought to be protected. The Act of 1887 therefore made provision for such organization, in particular circumstances, by others than those authorized to organize under the Act of 1879 and its amendments up to 1887. The Act of 1887, consequently, performed a different function, but was limited to particular kinds of lands. It did not, however, preclude a majority in interest of the resident owners from proceeding under the act of 1879 and its amendments. The fact that the Legislature, by successive amendments, has (Laws 1913, p. 232 et seq., and Laws 1913, p. 290 et seq.) brought the amended acts of 1879 and of 1887 into almost exact harmony as to the character of the lands which may be included, the persons who may move for incorporation, and the methods to be employed in working out the destiny of the district, does not destroy any part of the Act of March 24, 1913, or limit the powers thereby explicitly conferred upon districts organized thereunder. Neither of the acts pretends to provide an exclusive method for the accomplishment of its purposes.
The question is not whether the Legislature has provided by a separate act for the organization by the circuit court of districts empowered to construct levees. It is, on the contrary, whether districts organized under the act of March 24, 1913, are empowered to construct levees. For the reasons given we conclude they are so empowered.
II. (a) It is urged that section 10 of the act in question is unconstitutional because it provides that the plan of reclamation, as reported by the engineer, or modifications thereof as approved by him after consultation, shall be adopted by the board of supervisors. It is insisted this is a delegation of legislative power to the engineer, and hence is invalid. First. This does not fall within the scope of the objections which the statute prescribes may be made at this stage of the proceedings, it not being contended this objection goes to the whole act. The statute (Sec. 4, Laws 1913, p. 235) limits such objections to a denial of the statements in the articles of association. Second. This question was not raised on the hearing. Third. The contention is untenable, since the provision of the statute criticized does no more than provide that the plan of reclamation as adopted is to be approved by an expert engineer the board selects. Some one must approve such plan, and it is no more a delegation of legislative power to require the engineer's approval than it is to require that the board shall adopt the plan before it becomes the plan of the district. Manifestly, the Legislature cannot provide detailed plans of reclamation in acts of this character.
(b) It is objected that the provision, in section 5 of the act, authorizing the selection of supervisors who do not reside in the district or county in which the district is situated, violates the principle that "jurors must be of the vicinage." This is answered by the reasons numbered "first" and "second" in the preceding paragraph (a), and is untenable also because the supervisors are not jurors at all. They are selected simply to work out the purposes of the district, and the selection from territory broader than the district and county increases the probabilities of securing efficient supervisors.
Further objecting to section 5 of the act, counsel contend...
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