State v. Chariton Drainage Dist. No. 1

• Decision Date: 02 June 1913
• Citation: 158 S.W. 633
• Parties: STATE ex rel. JONES, Pros. Atty., v. CHARITON DRAINAGE DIST. NO. 1 et al.
• Court: Missouri Supreme Court

158 S.W. 633

STATE ex rel. JONES, Pros. Atty., v. CHARITON DRAINAGE DIST. NO. 1 et al.

Supreme Court of Missouri.

June 2, 1913.

Rehearing Denied July 10, 1913.

1. DRAINS (§ 55) — ESTABLISHMENT — CONSTRUCTION OF BRIDGES—LIABILITY.

Under Rev. St. 1909, §§ 5503, 5505, 5516, 5519, 5526, and under section 5511, as amended by Laws 1911, p. 211, providing that bridges in any drainage district shall be built according to the plans of the chief engineer of the district, and providing for a topographical survey of the district with the location of public highways

which may be crossed by any ditch, with the estimated cost of bridges, and requiring the commissioners of the drainage district to examine the highways and bridges of the county, and authorizing the levy of taxes for the construction of the improvements authorized, when construed, as it must be, in connection with section 5513, empowering the board of supervisors to construct bridges across ditches in accordance with the plans of the chief engineer, and on the failure of a county to construct a necessary bridge within the statutory time the drainage district may do so and recover the cost thereof from the county; the duty of constructing a highway bridge across a drainage ditch rests on the county and not on the drainage district.

2. STATUTES (§ 225½)—GENERAL AND SPECIAL STATUTES—EFFECT.

Where there are two statutes and the provisions of one apply specially to a particular subject, and the other, general in terms, includes the same subject, the former is an exception to the general statute.

3. DRAINS (§ 55)—DRAINAGE DISTRICTS—ESTABLISHMENT —CONSTRUCTION OF BRIDGES— STATUTES.

Rev. St. 1909, § 5513, empowering the board of supervisors to construct highway bridges across drainage ditches, or on the failure of the county to do so the drainage district may construct the bridge and recover the cost from the county, embodied in Rev. St. 1909, c. 41, art. 1, applies specially to bridges which the engineers of drainage districts find are necessary to be constructed in public highways, and governs the construction of such bridges, notwithstanding article 3, c. 102 (sections 10486-10504), containing general provisions governing the construction of bridges generally throughout the state, as well as the expenditure of revenues therefor.

4. COUNTIES (§ 153½)—STATES (§ 119)— PUBLIC IMPROVEMENTS—LENDING OF CREDIT—CONSTITUTIONAL PROVISIONS.

Const. art. 4, §§ 45-47, prohibiting any law lending the credit of the state to any person or corporation, or granting public money, or aiding any such person or corporation, do not render invalid Rev. St. 1909, § 5513, empowering the board of supervisors to construct highway bridges across drainage ditches in accordance with the plans of the chief engineer of the district, though it is so construed as to require the county to construct at its own expense such bridges.

5. COUNTIES (§ 153½)—RELEASE OF OBLIGATIONS —CONSTITUTIONAL PROVISIONS.

The statute so construed does not conflict with Const. art. 4, § 51, prohibiting the Legislature from releasing in whole or in part the obligation of any corporation or individual, since, before the provision can apply, it must first be established that the corporation or individual is liable to some one, and that the Legislature undertakes to release that liability.

6. COUNTIES (§ 154)—PUBLIC IMPROVEMENTS —AID TO CORPORATIONS—CONSTITUTIONAL PROVISIONS.

The statute so construed does not conflict with Const. art. 9, § 6, prohibiting any county, township, city, or other municipality from subscribing to the capital stock of a corporation or to make donations thereto.

7. COUNTIES (§ 24)—LEGISLATIVE CONTROL— TAXATION—PUBLIC IMPROVEMENTS—CONSTITUTIONAL PROVISIONS.

The statute so construed does not conflict with Const. art. 10, § 10, prohibiting the Legislature from imposing any tax on counties, cities, towns, or other municipal corporations for county, city, town, or other municipal purposes.

Lamm and Graves, JJ., dissenting.

In Banc. Error to Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by the State, on the relation of Edward S. Jones, Prosecuting Attorney of Macon County, against the Chariton Drainage District No. 1 and others. There was a judgment for defendants, and plaintiff brings error. Affirmed.

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, Mo., 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. 1 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, Robt. H. Kern, David M. Williams, John F. Leffler, and J. V. Grove, are the duly elected, qualified, and acting supervisors of said drainage district.

"Plaintiff further states that at the December term, 1907, of the circuit court of Macon county, Mo., by a proper decree of said court said Chariton drainage district No. 1 was extended to include what is designated in said decree as the north extension of Chariton drainage district No. 1, and to include among other lands certain lands in sections 8, 9, and 10 in township 58, range 16 in said county.

"Plaintiff states that on the 9th day of May, 1894, by order of record entered in the county court of Macon county, Mo., a public road was established in said sections 8, 9, and 10 in township 58, range 16 aforesaid, beginning at the municipal township of Valley at the northeast corner of the northwest one-fourth of the southeast one-fourth of section 10, township 58, range 16, at a public road, thence in a west direction, a distance of three-fourths of a mile to the northwest corner of the southwest quarter of section 10, township 58, range 16, and thence in a west direction the distance of a half mile through the center of section line, township 58, range 16, and thence in a northwest and southwest direction a distance of about 2¼ miles to and terminating at a public road at the intersection of section 7, township 58, range 16, all in the municipal township of Valley, county of Macon and state of Missouri.

"Plaintiff further states that where said public road crosses the section line between the aforesaid sections 9 and 10 the same was and is 60 feet in width.

"Plaintiff further states that the said public road is a regularly established public highway of Macon county, Mo., and that the same has been maintained and kept in repair and used as a road and highway by Macon county and the general public from the date of its establishment until the same was unlawfully obstructed and rendered impassable by the said defendants at the time and in the manner hereinafter set forth.

"Plaintiff further states that in the year 1908 the said Chariton drainage district No. 1, through its said board of supervisors, the defendants herein and their predecessors in office, constructed and caused to be constructed and have ever since maintained a drainage canal about 40 feet in width and 10 feet in depth through and across said public highway in or near the section line between the aforesaid sections 9 and 10 in said township 58, range 16, without constructing a proper and convenient bridge or other means of passage for the public over said ditch and obstruction made necessary by reason of the aforesaid drainage canal as the law directs, so that the said drainage canal so constructed and maintained as aforesaid forms an obstruction completely preventing travel upon said road, and so occupies and obstructs the whole of said road and highway, and plaintiff further says that said obstruction and canal is dangerous to and completely prevents public travel as constructed and maintained by defendants, and that the same as constructed and maintained constitutes and is a public nuisance, and that the general public has suffered and will in the future continue to suffer great injury, damage, and inconvenience by reason thereof.

"Plaintiff further states that the defendants have been notified of the obstruction herein complained of and of the nuisance herein complained of, and requested to abate the same by building a suitable and convenient bridge or passageway over said ditch, but have failed and refused so to do, and plaintiff says if the state of Missouri is denied the standing in court to complain of the public nuisance herein mentioned there is no remedy left, either for the public or for any private individual, by which they can effect the removal of said obstruction and cause the nuisance herein complained of to be abated.

"Plaintiff further states that it has no adequate remedy at law, wherefore plaintiff prays the court that an order of injunction issue out of this court directed to the said defendants and each of them enjoining and restricting them, their agents, servants, and employés from maintaining said obstruction in said road, and that a further mandatory order be...