State v. Albany Drainage Dist.

• Decision Date: 08 October 1921
• Docket Number: No. 22599.,22599.
• Citation: 234 S.W. 339,290 Mo. 33
• Parties: STATE, ex inf. McALLISTER, Atty. Gen., ex rel. MANION et al. v. ALBANY DRAINAGE DIST.
• Court: Missouri Supreme Court

234 S.W. 339

290 Mo. 33

STATE, ex inf. McALLISTER, Atty. Gen., ex rel. MANION et al.

v.

ALBANY DRAINAGE DIST.

No. 22599.

Supreme Court of Missouri, in Banc.

October 8, 1921.

Quo warranto by the State, on the information of Frank W. McAllister, at the relation of E. W. Manion and others, against the Albany Drainage District. Writ denied.

Kelso & Kelso, of Grant City, Perry S. Rader, of Jefferson City, and C. E. Gibbany, of Albany, for relators.

J. W. Peery and D. D. Reeves, both of Albany, for respondent.

WALKER, J.,

The Attorney General, at the relation of certain individuals, has instituted this proceeding by quo warranto, alleging that the respondent is unlawfully exercising the franchises and privileges of a drainage district over the lands of the individual relators. The information admits the corporate character of the respondent as a drainage district under the laws of the state, but alleges that in its attempt to extend its boundaries and exercise authority over the relators' lands that it is exercising powers not authorized by its charter.

The respondent was organized as the Albany Drainage District under a decree of the circuit court of Gentry county, May 22, 1917, under and in conformity with what is termed the Circuit Court Drainage Act (Laws 1913, p. 232). The district as originally organized comprised 5,704.06 acres. On December 9, 1918, the circuit court of Gentry county rendered a judgment extending the boundary lines of said district so as to add thereto 11,039.22 acres, making the total area include 16,743.28 acres. More than 3,350 acres of this addition are owned by the relators, who are protesting, in this proceeding, against the inclusion of their lands in the district. The grounds of objection of relators against the legality of the decree of the circuit court, making their lands a part of the district, may be summarized as follows:

"(1) That no plan was adopted by the district board of supervisors prior to the filing of the petition to extend the boundaries for the drainage, leveeing, and reclaiming the lands contained in the district organized as is required by sections 9 and 10 of the act of 1913, page 237, no certified copy of a plan for reclaiming said lands had been made and transmitted by the secretary of the board to the circuit clerk, as required by section 12 of said act, and no commissioners had been appointed to assess benefits and damages for the reclamation of said lands, as is required by sections 12 to 16; and that until all said things were done and it had been shown that the cost of constructing necessary drainage works for the lands contained in the district did not exceed the benefits to such lands, the district could not be held to have been organized in good faith or had a right to corporate existence, under sections 16 and 37; and hence the proceeding to extend the boundaries was premature, and should have been dismissed.

"2. That the burden was upon the supervisors to demonstrate: (1) That it was necessary for the proper reclamation of the lands within the district organized that its boundary lines be extended so as to include relators' lands and the other lands added; and (2) that the lands added by the extension of the boundaries would be benefited and reclaimed by the drainage works it was necessary to construct for the reclamation of the lands within the district—which the evidence fails to establish.

"(3) That in no event can the boundary lines of a drainage district be extended to include any lands which do not constitute a part of the "contiguous body of swamp, wet or overflowed lands, or lands subject to overflow," prescribed by section 2 of the act of 1913, and the evidence shows that the lands added by the judgment of the circuit court do not, together with the lands contained in the district as originally organized in 1917, constitute a contiguous body within the meaning of said section.

"(4) That section 40 of the act of 1913, upon which the judgment of the circuit court is based, is a mere correction statute, designed to afford means for correcting errors in the plan for reclamation or in the decree of the court incorporating a drainage district, and does not authorize the court to extend the boundaries of a drainage district upon the petition of the supervisors alone, or upon the petition of the `owners of land adjacent to such district' alone, to extend the boundaries so as to include other large tracts of land.

"(5) That if section 40 of the act of 1913 authorizes the circuit court to extend the boundaries of a drainage district to include other large tracts of land, upon the petition of the supervisors alone, it is unconstitutional and void and in violation of the Fourteenth Amendment of the United States Constitution, in that it denies to the owners of the lands to be added the equal protection of the law and the equal Privileges and immunities which section 2 extends to the owners of the lands within the district, in that the owners of a majority of the acres described in the articles of association of a proposed district are by section 2 given the right to prevent its organization, and section 40 denies to a majority and to all the owners of the lands to be added the right to prevent the extension of the boundaries of a district so as to include their lands, thereby dividing a natural class into two subdivisions, and thus results in administering the law in one way for one subdivision and in another way for the other subdivision.

"(6) That section 40 of the act of 1913, if it confers upon the circuit court legislative power to extend the boundary lines of a drainage district so as to add other large tracts, is a special law, and violative of subdivision 26 of section 53 of article 4 of the Constitution of Missouri, which forbids the General Assembly to pass any local or special law granting to any corporation, association, or individual any special or exclusive privilege or immunity, in that it imposes no restrictions or limitations upon the extent to which the boundaries may be extended, and gives to the owners of the lands to be added no voice in the election of supervisors who are to have entire control of the location, dimensions, and construction of drainage works through their lands and of levying taxes to pay for the same.

"(7) That the extension of the boundary lines of the Albany drainage district, composed originally of 5,704.06 acres, by adding 11,-039.22 acres, without the consent of the owners of same and against the written protest of relators, and without a showing that such extensions were necessary for the efficient drainage and proper reclamation of the lands within the district organized, and without a showing that the lands in the extension would be fully protected and efficiently drained, and that the lands so added, together with those in the district organized, constitute one drainage unit, or contiguous body of swamp, wet, or overflowed lands, was an arbitrary and oppressive and unreasonable exercise of the legislative power of the circuit court, as an administrative agent to extend the boundary lines of a drainage district, even if the act of 1913 vests such court with legislative power, upon the petition of the supervisors alone, to extend the boundaries of a drainage district so as to include other large tracts of land; and that said extension was violative of section 4 of article 2 of the Constitution of Missouri, which declares that all persons have a natural right to life, liberty, and the gains of their own industry, and violative of section 30 of article 2 of said Constitution, which declares that no person shall be deprived of life, liberty, or property without due process of law."

The attitude of the respondent in its opposition to the foregoing contentions of relator may be thus summarized:

(1) That it was, at the time the proceedings were instituted in the circuit court of Gentry county to extend its boundary lines, a legally incorporated drainage district, under the laws of this state. Laws 1913, pp. 232-267.

(2) That the suit to extend its boundary lines resulted in a decree of said circuit court of December 9, 1918, extending said boundaries so as to include the lands of relators as set forth in this proceeding. That as such drainage district it was authorized to institute and prosecute said proceeding to the securing of the decree rendered therein. That this proceeding was under the authority of section 40 of the said Drainage Act of 1913. That the petition contained the necessary allegations to effect the purpose intended. That due and proper notice was given of the suit. That the present relators appeared and filed their objections thereto, which were heard by the court and a judgment rendered in pursuance of said section 40 of the Drainage Law of 1913, extending the boundaries of said district over the lands of relators and including same within said district.

(3) That it is sought by relators to invoke quo warranto as a writ of review.

(4) That the circuit court had jurisdiction to enter a judgment extending the boundary lines of respondent, and in so doing acted within its jurisdiction. That no fraud was perpetrated upon it to influence or induce its action, and its judgment is binding upon relators against all attacks as to sufficiency of evidence.

(5) That if this court examines the evidence, the same will be found sufficient to sustain the judgment rendered.

(6) That said section 40 of the Drainage Act Is a valid enactment, and subject to none a the objections urged against it by relators.

(7) That the inclusion of lands within a drainage district in no manner affects the owner's rights if his property is neither benefited nor damaged.

(8) That sections 2 and 40 of the Drainage Act refer to different matters, and that the reading of section 2 with section 40 was not necessary to authorize the proceedings for the extension of the boundaries of the district. That section...