State, ex rel. Jones v. Chariton Drainage District No. One

• Decision Date: 10 July 1913
• Parties: THE STATE ex rel. EDWARD S. JONES, Prosecuting Attorney, Plaintiff in Error, v. CHARITON DRAINAGE DISTRICT NO. ONE et al
• Court: Missouri Supreme Court

158 S.W. 633

252 Mo. 345

THE STATE ex rel. EDWARD S. JONES, Prosecuting Attorney, Plaintiff in Error, v. CHARITON DRAINAGE DISTRICT NO. ONE et al

Supreme Court of Missouri

July 10, 1913

Error to Macon Circuit Court. -- Hon. Nat M. Shelton, Judge.

Affirmed.

Ed S Jones and George N. Davis for plaintiff in error.

(1) Full and complete power and authority is expressly conferred by law upon Chariton Drainage District No. 1 and the board of commissioners thereof to construct and maintain a bridge at the place described in plaintiff's petition. Sec. 5511 R.S. 1909; Laws 1911, p. 211; Secs. 5516, 5519, 5526, 5503 5505, R.S. 1909. In other States similar statutes have been construed to mean that roads and highways must be assessed according to damage and benefits the same as other property in the district. Spring Creek Drainage Dist. v. Elgin, 249 Ill. 260. And in such jurisdictions, as well as in jurisdictions where the law is silent on assessing public roads, according to damages and benefits, it is uniformly held that the district must build the bridges. Commissioners v. Drainage District, 246 Ill. 388; People v. Drainage District, 231 Ill. 435; Railroad v. Board of Supervisors, 116 N.W. 805; State ex rel. v. Henry County, 157 Ind. 96. And no express statute is necessary to compel a drainage district which runs its ditch across a highway to restore the same. People v. Fenton & T. R. Co., 96 N.E. 864; State v. Drainage District, 132 N.W. (Neb.), 398; Conewango v. Shaw, 52 N.Y. 327. (2) Chap. 102, R.S. 1909, in conjunction with article 10, section 22, of the Constitution, provides a complete scheme for the building of bridges, repairing of roads and the collection of taxes therefor, and gives to the authorities of the county and particularly to the county court, absolute discretion as to when and where county revenue shall be expended for bridges, and absolute authority to prescribe specifications for the same. The defendants in error seek by implication and construction to upset all of these laws and deprive the county court and county authorities of this absolute discretion expressly given to them by law. Jefferson County v. St. Louis County, 113 Mo. 619; State ex rel. v. Thomas, 183 Mo. 220. (3) Should the court construe article 1, chapter 41, to mean that the county must bridge the highway where the same has been obstructed by the drainage ditch or that the drainage district has the right to build the bridges and sue the county and collect the amount spent for such purposes it would bring all of the sections cited above into direct conflict with the laws of the State regarding the collection of taxes and the disbursements thereof including road taxes, bridge taxes, etc., and in conflict with the laws of Missouri with regard to bridges which gives the county the absolute discretion to decide whether or not a bridge shall be built, and, if built, the cost, size and character thereof, as well as in conflict with the spirit and letter of the Constitution of the State as hereinafter set out. Such a construction would bring the drainage laws in conflict with sections 45, 46 and 47 of article 4. State v. Curators, 57 Mo. 178; State ex rel. v. Walker, 85 Mo. 41; State ex rel. v. County Court, 128 Mo. 427; Elting v. Hickman, 172 Mo. 237; State ex rel. v. County Court, 142 Mo. 575; Webb v. Lafayette County, 67 Mo. 353; Deal v. Mississippi County, 107 Mo. 467; State ex rel. v. Ziegenhein, 144 Mo. 283; State ex rel. v. St. Louis, 174 Mo. 125; Haeussler v. St. Louis, 205 Mo. 656; State ex rel. v. St. Louis, 216 Mo. 47; Morgan v. Schusselle, 228 Ill. 106. Also in conflict with section 51 of article 4 of the Constitution which provides that the General Assembly shall have no power to release or extinguish or authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any corporation or individual to this State, or to any county or other municipal corporation therein. And also would be in conflict with section 6 of article 9 of the Constitution. State ex rel. v. City of St. Louis, 216 Mo. 47; Haeussler v. St. Louis, 205 Mo. 656. Also in conflict with section 1 of article 10 and section 3 of article 10. State ex rel. v. Ashbrook, 154 Mo. 375; Brooks v. Schultz, 178 Mo. 222; State ex rel. v. Owsley, 122 Mo. 68; Ex parte Loring, 178 Mo. 194. Also in conflict with section 10 of article 10 of the Constitution. State ex rel. v. Ashbrook, 154 Mo. 375. Taxes should be disbursed only by public officers. Muncipalities are only authorized to collect taxes for municipal purposes, controlled only by municipal officers, and not by private individuals. State ex rel. v. St. Louis, 216 Mo. 47; State ex rel. v. Edwards, 42 Mont. 135; People v. Hurlbut, 24 Mich. 44; People v. Detroit, 28 Mich. 228; Blades v. Commissioners, 122 Mich. 366; State v. Barker, 116 Iowa 96.

B. R. Dysart and Walter C. Goodson for defendants in error.

(1) The Drainage Act, chap. 41, R.S. 1909, provides that the bridge over the ditch where it crosses the public highway shall be built by the county. (2) The only sections in the drainage act concerning bridges, are sections 5503 and 5513. There can be no room for construction of section 5513; it is a positive requirement by the Legislature. It is made primarily the duty of the county to build the bridge. If the county fails to build the bridge, after notice of its necessity, then the drainage district is authorized to let the work of constructing the bridge at the expense of the county, which cost should be collected by the board of supervisors from the county, if such suit be necessary. It is further provided in section 5513 that, before the supervisors should let such work, the county was entitled to notice of the time and place of letting such work and making such contract therefor. The contention of the plaintiff in error that a public highway is not a public road, and that the county of Macon is not a corporation in the meaning of section 5513, is without merit. St. Louis v. Terminal Ry. Assn., 211 Mo. 386. (3) The several drainage acts of the State of Missouri have recently been before this court, where the same, and the various provisions thereof, have been assailed on the grounds of their unconstitutionality, and they have invariably been held to be constitutional. Drainage District v. Railroad, 236 Mo. 94; Drainage District v. Turney, 235 Mo. 80; State ex rel. v. Taylor, 224 Mo. 393; Morrison v. Morey, 146 Mo. 561. (4) The contention of the plaintiff in error that the county court has conclusive discretion as to the character and size of a bridge to be built, and that the decision and report of the chief engineer of the drainage district supersedes and interferes with the discretion of the county court, is without merit. It is not true that the county court has this discretion. On the contrary, the county court has an engineer, the same as the drainage district. R.S. 1909, secs. 10487, 10490, 10491, 10496. (5) The Legislature in its sovereign capacity had the power to make all the expenses of the drainage district payable out of the common fund of the county. The Legislature also had the power to require all the expenses of the drainage district to be paid by the inhabitants and property within the bounds of the drainage district.In this case, the Legislature saw fit to divide these expenses, and require the drainage district to pay all the expenses, except where a bridge was required at the crossing of a public road. This latter expense, the Legislature in its discretion, cast upon the county. The Legislature has power to levy and collect taxes directly, and it also has power to delegate this function to others, such as counties and drainage districts, townships and school districts. Heffner v. Cass and Morgan Counties, 193 Ill. 439, 58 L.R.A. 353; State v. Drainage Dist., 132 N.W. 398. (6) It is well settled that in all improvements in a city, the cost of such improvements may by law be cast upon the city, or may be assessed against the adjoining proprietors to said streets and improvements, or the same may be divided, a part to be paid by the city, and a part by the adjoining owners. It was competent for the Legislature to cast the burden of building the bridge at the crossing upon the county. Railroad v. Illinois ex rel. 200 U.S. 561.

WOODSON J. Lamm, C. J., and Graves, J.

OPINION

In Banc.

WOODSON, J.

This is an equitable proceeding instituted by the State, at the relation of the prosecuting attorney of Macon county, against Chariton Drainage District No. 1 et al., seeking a mandatory injunction against the defendants, enjoining an obstruction in a public road, in said county, and requiring the defendants to construct a bridge across the drainage ditch of defendant company where it crosses said public road.

Since the case below passed off on a demurrer to the petition, it becomes necessary to set it out in the statement of the case. It is as follows:

"Be it remembered that Ed S. Jones, prosecuting attorney for Macon county, Missouri, who in this behalf prosecutes for the State of Missouri, comes now and gives the court here to understand and be informed that the defendant the Chariton Drainage District No. One, is a public corporation, created, organized and existing under and by virtue of the laws of the State of Missouri, and incorporated by a decree of the circuit court of Macon county entered of record on the day of 1904, for the purpose of reclaiming and protecting from the effects of water, by drainage or otherwise, swamp and overflow lands in said drainage district and that all or more than one-half of the lands of said drainage district are situate within the county of Macon and State of Missouri.

"Plaintiff states that the said defendants Grandison Goodson,...