State ex rel. Walker v. Big Medicine Drainage Dist. No. 1 of Sullivan and Grundy Counties

• Citation: 196 S.W.2d 254,355 Mo. 412
• Decision Date: 09 September 1946
• Docket Number: 39735
• Parties: State ex rel. A. B. Walker, Prosecuting Attorney of Sullivan County, Missouri, and R. Leroy Miller, Prosecuting Attorney of Grundy County, Missouri, Appellants, v. The Big Medicine Drainage District No. 1 of Sullivan and Grundy Counties, Missouri, a Corporation, and E. C. Petty, Gird McCullough, U. G. Humphreys, and George Kent as Surviving Members of the last Board of Supervisors of said Drainage District
• Court: United States State Supreme Court of Missouri

196 S.W.2d 254

355 Mo. 412

State ex rel. A. B. Walker, Prosecuting Attorney of Sullivan County, Missouri, and R. Leroy Miller, Prosecuting Attorney of Grundy County, Missouri, Appellants, v. The Big Medicine Drainage District No. 1 of Sullivan and Grundy Counties, Missouri, a Corporation, and E. C. Petty, Gird McCullough, U. G. Humphreys, and George Kent as Surviving Members of the last Board of Supervisors of said Drainage District

No. 39735

Supreme Court of Missouri

September 9, 1946

Appeal from Sullivan Circuit Court; Hon. G. Derk Green Judge.

Reversed and remanded.

A B. Walker and R. Leroy Miller for appellants.

(1) The prosecuting attorney of a county wherein part of the land in the drainage district is located, and in which the drainage district ditch intersects public highways, has authority on behalf of the state and county to file suit asking for a mandatory injunction to compel the drainage district to repair and maintain bridges across said highways. State ex rel. Norborne Land Drain. Co. of Carroll v. Hughes, 240 S.W. 802; State ex rel. Ashby v. Medicine Creek Drain. District, 224 S.W. 343. (2) A mandatory injunction is the proper remedy to compel a drainage district to repair and maintain bridges at the intersections of its ditch and public highways. Camden Special Road Dist. v Willow Drainage District, 199 S.W. 716; Diekroger v Jones, 151 S.W.2d 691. (3) It is the duty of a drainage district organized in 1920 to repair and maintain bridges made necessary by the construction of said drainage ditch where same intersected public highways. State ex rel. Ashby v. Medicine Creek Drain. District, 224 S.W. 343; Groves v. Little Tarkio Drain. District No. 1, 134 S.W.2d 70; Cunningham Realty Co. v. Drain. District No. 6 of Pemiscot County, 40 S.W.2d 1086; State ex rel. Chamberlin v. Grand River Drain. Dist. of Cass and Bates Counties, 278 S.W. 388. (4) A corporation whether it be a private or a public corporation cannot avoid the payment and fulfillment of its legal obligations by permitting its charter to expire and even though the period of incorporation has expired the surviving member of the last board of supervisors of a drainage district has authority to levy and collect taxes to fulfill the district's obligation. Diekroger v. Jones, 151 S.W.2d 691. (5) The duty to replace, repair and maintain bridges constitutes an indebtedness of the drainage district and the same must be discharged before the district can be dissolved. Sec. 12361, R.S. 1939; Maulding v. Williams, 162 N.E. 131, 330 Ill. 599. (6) Mere delay in the prosecution of an equitable right without injury to others is insufficient to bar relief, and whether relief should be denied upon the ground of laches involves the determination of questions of facts. Ritche v. Ritche, 173 S.W.2d 101. (7) The provisions of Sec. 4406, Laws, 1929, pp. 183, 184, now Sec. 12354, R.S. 1939, as to maintenance of bridges would not apply to the facts in issue, as defendant drainage district was incorporated in 1920, and ditch constructed long prior to the amendment and reenactment of said section in 1929. The uniform rule of construction of statutes is that they must be held to operate prospectively only where no intent is expressed that it shall act otherwise. Lewis-Sutherland, Statutory Construction, sec. 642, p. 1157; Lucas v. Murphy, 156 S.W.2d 686. (8) This rule applies regardless of the type of legislation under consideration. Lewis-Sutherland, Statutory Construction, secs. 641, 642; Lucas v. Murphy, 156 S.W.2d 689. (9) The bridges over defendant district ditch where same intersects public highways never become a part of the public roads, and plaintiff counties are specifically exempt from any of the provisions in Sec. 12354, R.S. 1939, to maintain them because of the last clause in said section to-wit: "Provided, however the word corporation as used in this section shall not apply to the state or any political or civil subdivision thereof." State ex rel. Chamberlin v. Grand River Drain. Dist. of Cass and Bates Counties, 278 S.W. 388; State ex rel. Ashby v. Medicine Drain. District, 224 S.W. 343.

Paul D. Kitt and Randall R. Kitt for respondents.

(1) The drainage district corporation, a public corporation, was dissolved and ceased to exist on January 6, 1945, the date of the expiration of the period for which it was incorporated. This dissolution of that corporation destroyed and put an end to its existence, its powers, functions and franchises, its capacity to sue and be sued; also, its offices and the functions of its officers. 43 C.J., sec. 169, pp. 174-175 sec. 164, p. 171; Dodge v. People, 1 N.E. 826, 113 Ill. 491; Walker v. East Rome, 89 S.E. 204, 145 Ga. 294; State ex rel. Douglas v. Village of Reads, 78 N.W. 863, 76 Minn. 69; People v. Brown, 83 Ill. 95; Barkley v. Board of Levee Commissioners, 93 U.S. 258, 23 L.Ed. 893; Crooks v. People, 106 Ill. 237; Ruohs v. Athens, 91 Tenn. 20, 18 S.W. 400; Boyd v. Chambers, 78 Ky. 140; Beckwith v. Racine, 100 U.S. 514, 25 L.Ed. 699; Seely v. Taylor, 88 N.C. 489; Thompson v. Allen Co., 115 U.S. 550, 29 L.Ed. 475; Heine v. The Levee Commissioners, 86 U.S. 655, 22 L.Ed. 223; Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699. (2) The dissolution of a public corporation by expiration of its charter abates an action by or against it. Knight v. Town of Ashland, 26 N.W. 565, 65 Wis. 166; 1 C.J., sec. 215, pp. 134-135; LaPointe v. O'Malley, 47 Wis. 388, 2 N.W. 632. (3) Dissolution is effected by expiration of the time limited for the existence of the corporation. 43 C.J., sec. 164, p. 171. (4) Statutes saving rights of action against dissolved private corporations do not apply to dissolved drainage district. Sternberg v. Wakonda Drainage & Lev. Dist., 33 F.2d 451. (5) There is no contract involved. The charter of a public corporation does not constitute a contract. State ex rel. Ross v. General American Life Ins. Co., 85 S.W. 68, 336 Mo. 829; Mount Pleasant v. Beckwith, 100 U.S. 514, 25 L.Ed. 699. (6) The duty to maintain bridges in drainage districts is not a contract, but is a burden, an imposition, placed by the State, acting through the Legislature, upon that subdivision of the State so designated by the Legislature, exercising the police power. Morrison v. Morey, 146 Mo. 543, 48 S.W. 629; Little River Drain. District v. Railroad, 236 Mo. 94, 139 S.W. 330; State ex rel. Caldwell v. Little River Drain. District, 291 Mo. 72, 236 S.W. 15; Sigler v. Inter-River Drain. District, 311 Mo. 175, 279 S.W. 50; Max v. Barnard-Bolckow Drain. District, 326 Mo. 723, 32 S.W.2d 583. (7) The Legislature can place that burden on the counties, drainage districts, or the State, to build and maintain the bridges in the drainage district over roads and highways, and change that burden at any time. State ex rel. McWilliams v. Little River Drain. District, 269 Mo. 444, 190 S.W. 897; State ex rel. Jones v. Chariton Drain. District, 252 Mo. 345, 158 S.W. 633; State ex rel. Ashby v. Medicine Creek Drain. District, 284 Mo. 636, 224 S.W. 343. (8) Drainage districts are public corporations, political subdivisions of the State under the sole control of the Legislature. State ex rel. Compton v. Chariton Drain. District No. 1, 192 Mo. 517, 90 S.W. 722; Squaw Creek Drain. District No. 1 v. Turney, 235 Mo. 80, 138 S.W. 12; Houck v. Little River Drain. District, 248 Mo. 373, 154 S.W. 739; Birmingham Drain. District v. Chicago, B. & Q.R. Co., 274 Mo. 140, 202 S.W. 404; State ex rel. Caldwell v. Little River Drain. District, 291 Mo. 72, 236 S.W. 15. (9) A collateral attack upon the corporate existence of a municipal or public corporation in de facto exercise of corporate life should not be tolerated. State ex rel. Musser v. Birch, 186 Mo. 205, 85 S.W. 361; State ex rel. Consolidated School Dist. No. 2, Clinton County, v. Hunt, 199 S.W. 944. (10). The drainage district corporation was a de jure corporation until January 6, 1945, the end of the term for which it was incorporated. After January 6, 1945, its corporate life ceased, was dissolved, and there was thereafter no de jure office of supervisors for the drainage corporation; consequently, there could be no de facto supervisors. Ex parte Babe Snyder, 64 Mo. 58; State v. O'Brian, 68 Mo. 153; State ex rel. Board of Education v. Nash, 209 Mo. 708, 108 S.W. 563; State ex rel. Abington v. Reynolds, 280 Mo. 446, 218 S.W. 334; City of Elmira v. Vandermark, 126 N.E. 314, 100 Ohio St. 365; Norton v. Shelby Co., 118 U.S. 425, 30 L.Ed. 178; 43 C.J., sec. 50, p. 98; 42 Am. Jur., sec. 31, p. 901, and sec. 35, p. 907; 43 Am. Jur., sec. 475, pp. 228-229; Ayers v. Lattimer, 57 Mo.App. 78. (11) The court has no power to make a levy of a tax assessment, that is a legislative function. Kansas City v. Frogge, 352 Mo. 233, 176 S.W.2d 498; Kroger Grocery & Baking Co. v. St. Louis, 341 Mo. 62, 106 S.W.2d 435. (12) To order the respondents, who are not officers of the drainage district, to levy a tax assessment and to collect the tax would in effect be the appointment by the court of the respondents as agents of the court to make the levy, and a decree directing them what to do. Courts can not write into a statute a provision not covered by its language. Stephens v. Gordon, 266 Mo. 206, 181 S.W. 73; Orthwein v. Germania Life Ins. Co., 261 Mo. 650, 170 S.W. 885; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; Bankers Life Co. v. Chorn, 186 S.W. 681. (13) To order respondents to make a levy of an assessment on the lands formerly within the drainage district would be an encroachment by the court upon the exclusive function of the General Assembly, in violation of Article II and of Section 1 of Article III of the Constitution of Missouri, 1945, and of Article III and Section...