State v. Medicine Creek Drainage Dist.

• Decision Date: 16 July 1920
• Docket Number: No. 21844.,21844.
• Parties: STATE ex rel. ASHBY, Eros. Atty., v. MEDICINE CREEK DRAINAGE DIST. et al.
• Court: Missouri Supreme Court

224 S.W. 343

284 Mo. 636

STATE ex rel. ASHBY, Eros. Atty., v. MEDICINE CREEK DRAINAGE DIST. et al.

No. 21844.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Motion to Transfer to Court in Banc Denied September 15, 1920.

Appeal from Circus Court, Livingston County; Arch B. Davis, Judge.

Proceeding for mandatory injunction by the State of Missouri, on the relation of Frank W. Ashby, Prosecuting Attorney of Livingston County, against the Medicine Creek Drainage District and others. From a judgment for relator, defendants appeal. Judgment modified and affirmed.

Paul D. Kitt, of Chillicothe, and Perry S. Rader, of Jefferson City, for appellants.

Frank W. Ashby, of Chillicothe, for respondent.

Frank W. McAllister, Atty. Gen., and John T. Gose, Asst. Atty. Gen., for the State.

WILLIAMSON, J.

The state, at the relation of the prosecuting attorney of Livingston county, brought this proceeding against the Medicine Creek drainage district and the board of supervisors of said district for a mandatory injunction requiring the district to build and maintain bridges upon certain named public highways in Livingston county at all points where said highways were, or were about to be, intersected by the drainage ditches of said district. Relator prevailed in the trial court, and the district has duly appealed.

The Medicine Creek drainage district was organized in 1916 under the act of 1913 authorizing the incorporation of drainage districts, by a decree of the circuit court. Acts 1913, pp. 232 to 267, inclusive.

I. Appellant contends that the act of 1913 does not place upon drainage districts the burden of building bridges over ditches across public highways and insists that that expense shall be borne by the county. Many, if not all, of the questions presented have been decided in this court in other cases; but, since those decisions were rendered, the statutes relating to drainage districts have been amended in certain particulars, with the result, as relator claims, that those decisions do not now control. In 1913 the Legislature repealed article 1 of chapter 41 of the Revised Statutes of Missouri of 1909, and various amendments thereto, and substituted the act of 1913 in lieu thereof. The drainage statute of 1909 had been construed by this court upon the proposition here involved in three cases, and in each instance we had held that the law imposed the burden of building bridges over drainage district ditches upon the county. State ex rel. v. Chariton Drainage Dist., 252 Mo. 345, 158 S. W. 633; State ex rel. v. Little River Drainage Dist., 269 Mo. 444, 190 S. W. 897; State ex rel. v. Little River Drainage Dist., 271 Mo. 429, 196 S. W. 1115. How far these decisions are now controlling authority in this case depends upon the materiality of the changes made by the act of 1913 in the statute law on this topic as it stood in 1909. It hence becomes necessary to compare the two statutes, and note the changes which have been made, and then to determine the effect of those changes. The general purpose of the two statutes was the same, and many of the sections of the drainage law of 1909, supra, have been carried into the act of 1913 with the same headings and with little or no change in verbiage—a fact which facilitates comparison.

We will confine our comparison strictly to the topic in hand to wit, bridges. The first section of the statute of 1909 relating to bridges is section 5503, which is as follows:

"All bridges in said district across any drain, ditch, canal or excavation, shall be built according to, and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district. Any owner of land within the district may, at his own expense and in compliance with the terms and provisions of this section, construct a bridge across any drain, ditch, canal or excavation in said district. The board of supervisors shall, wherever necessary, at the expense of the district construct a convenient roadway or crossing over and across any levee or embankment in said district."

The 1909 statute then provides for the appointment of a board of supervisors, and by section 5511 for the appointment of a "board of engineers" for each district, after which section 5511 proceeds, as follows:

"The said `board of engineers' shall make a complete topovaphical survey of the said district and submit the same to the board of supervisors with maps and profiles of said survey and a full and complete plan for draining and reclaiming the lands in said district from the overflow of or damage by water, or floods; and also, the physical characteristics and location of any right of way, roadbed, bridge or bridges and other property or improvements in said district belonging to or under the control of any railroad company; and shall also report the location of any and all public highways which may be crossed by the right of way of any ditch, levee or other improvement planned for said district, together with the estimated cost of bridges and approaches across said highway and made necessary by reason of the aforesaid improvements and drainage."

The pertinent portion of the next section relating to bridges (section 5513, R. S. 1909), omitting matter not material to this question, is as follows:

"Said board of supervisors shall also have the power to construct or enlarge, or cause to be constructed or enlarged, all bridges that may be needed in or out of said district across any drain, ditch, * * * public highway, or railroad right of way * * * and, further, shall have power to remove any bridge * * * in or out of said district, which may be in the way of any drainage * * * works, * * * of said district. * * * All bridges contemplated by this section shall be built according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district: Provided, however, that if such bridge shall belong to any corporation, or be needed over a public highway or right of way of Any corporation, the secretary of said board of supervisors shall give such corporation notice. * * * A failure to construct or enlarge such bridge within the time specified in such order shall be taken as a refusal to do said work by said corporation, and thereupon the said board of supervisors shall proceed to let the work of constructing or enlarging the same at the expense of the corporation for the cost thereof. * * *"

The substance of these sections has been incorporated into the act of 1913. In each of the three cases above cited it will be noted that it was held that the cost of building bridges over public highways in or out of drainage districts was imposed upon the county in which the bridge was located. In the first case (State ex rel. v. Chariton Drainage District, 252 Mo. 345, 158 S. W. 033) this court construed section 5513, supra, to impose the cost of building bridges upon the county, not because of any plain and pointed statement in the statute to that effect (for the statute contains no such statement), but because of the proviso in that section to the effect that "if such bridge shall belong to any corporation, or be needed over a public highway," then the bridge shall be built by or at the expense of such corporation. A county is a public corporation, of course (14 C. J. 74), and upon that idea the decision in the Chariton Drainage District Case is plainly based. That decision was handed down July 10, 1913. The opinion affirmed the judgment of the lower court.

It is argued that, when the General Assembly of 1913 met, it was a matter of common knowledge that under the drainage laws as they then stood the cost of building bridges made necessary by the cutting of drainage ditches was imposed upon the counties, because counties were corporations within the meaning of that word as used in the drainage laws. Thereupon the General Assembly of 1913 undertook a revision of the drainage laws. In so doing it adopted as section 30 of the act of 1913 all that part of section 5513, supra, beginning with the words, "All bridges contemplated by this section," thence to and including the words "twenty days' actual notice of the time and place of letting such work." A few slight changes in verbiage are made, but none which affects the question here involved. The Legislature then added the following clause, Which did not appear in the statute of 1909, to wit:

"Within ten days after a dredgeboat or any other excavating machine shall have completed a ditch across any public highway, a bridge shall be constructed and maintained over such drainage ditch where the same crosses such highway: Provided, however, the word `corporation' as used in this section shall not apply to counties."

Whether or not the General Assembly took cognizance of the decision of the Macon county circuit court in the Chariton Drainage District Case, 252 Mo. 345, 158 S. W. 033, may admit of speculation, but that the addition to the drainage laws of the words last above quoted sweeps away the foundation upon which the decision of the Chariton Drainage District Case was based, so far as the question here involved is concerned, is too plain for controversy. This amendment affects the decisions above cited in the Little River Cases, 269 Mo. 444, 190 S. W. S97, and 271 Mo. 429, 196 S. W. 1115, in the same way, and to the same extent. Hence it becomes necessary to determine, in the light of this amendment, upon whom now rests the burden of bridges building under the Act of 1913. At common law that burden would rest upon the individual whose acts made the building of the bridge necessary. Rex v. Lindsey, 14 East (Eng.) 317; Rex. v. Kerrison, 3 M. & S. (Eng.) 526; Penn. R. R. Co. v. Irwin, 85 Pa. 336; Richardson Co. v. Drainage Dist., 92 Neb. 776, 139 N. W. 648, 43 L. R. A. (N. S.) 695, Ann. Cas. 1914A, 546. Numerous authorities to the same effect are collated in an exhaustive note upon the case last cited in Ann....