The Kaw Valley Drainage District of Wyandotte County v. The Board of County Commissioners of The County of Wyandotte

• Citation: 117 Kan. 634,232 P. 1056
• Decision Date: 07 February 1925
• Docket Number: 25,570
• Parties: THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE, Appellee
• Court: United States State Supreme Court of Kansas

232 P. 1056

117 Kan. 634

THE KAW VALLEY DRAINAGE DISTRICT OF WYANDOTTE COUNTY, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WYANDOTTE, Appellee

No. 25,570

Supreme Court of Kansas

February 7, 1925

Decided January, 1925

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DRAINAGE DISTRICT--Action Against County for Services Rendered in Removing Bridge Approach--Services Proprietary and Not Governmental--Statute of Limitations. In an action by a drainage district against a county to recover the fair and reasonable value of services rendered in removing the approach to one of the county's bridges, held, under the circumstances related in the opinion, the services performed were proprietary in their nature rather than governmental, and also held, that a claim for such services is barred by the provisions of section 19-308 of the Revised Statutes, unless filed within two years from the time it accrued.

2. SAME--Power of County to Contract for Removal of Approach to Bridge Over Navigable Stream--Plans and Specifications Required. A county is without power to make a valid contract for the removal of an approach to one of its bridges over a navigable stream without first complying with the requirements of section 68-1402 of the Revised Statutes, which provides, among other things, for the preparation of plans and specifications, estimate of cost, under oath, and advertisement for bids.

Thomas A. Pollock, of Kansas City, for the appellant.

J. H. Brady, county counselor, and T. F. Railsback, of Kansas City, for the appellee.

OPINION

HOPKINS, J.:

The action was one by the drainage district to recover the expense of removing certain approaches to what is known as the James street bridge. The plaintiff's petition was in two counts. A demurrer was sustained to the second count, and plaintiff appeals.

The facts are substantially as follows: The public bridge of Wyandotte county across the Kansas river at James street, in Kansas City, Kan., prior to 1912, consisted of but two spans with an embankment constituting an approach at the easterly end of the bridge. The improvement of the channel for flood protection necessitated the removal of the approach. In 1911 the drainage district ordered its removal. The county failed to remove it, but by order of the drainage district reconstructed the bridge. Under an alleged agreement between the drainage district and the county, the drainage district removed the approach, consisting of approximately 29,750 cubic yards of dirt. The work was completed October 9, 1913. A controversy arose as to compensation due the drainage district from the county for removal of the approach, and in September, 1917, the drainage district brought action against the county for $ 5,553. Later an amendment was made to plaintiff's petition reducing the amount claimed under the contract to $ 4,000. Still later, on January 23, 1922, the plaintiff filed an amended petition in two counts. In the second count it was alleged that the approach had been removed at a cost of $ 23,244, and claim made for that amount. The trial court sustained a demurrer to this count of the petition on the ground that the plaintiff had not presented its claim within two years after it accrued.

The plaintiff contends that the statute requiring claims against a county to be filed in two years is not applicable, because the plaintiff is a public corporation suing solely as the agent and for the benefit of the state in the performance of a purely governmental function. It also claims that the funds which it used in 1912 to remove the embankment were public funds which it held in trust by virtue of a vote of the taxpayers of the district for the construction of other and different improvements, and that, having used such trust funds for the benefit of the county, they may be recovered. On the other hand, the defendants contend that the claim was not, in its nature, a public demand or a right affecting the general public, but was purely a private and proprietary right which was subject to the general limitation laws. The statute reads:

"No account against the county shall be allowed unless presented within two years after the same accrued: Provided, That if any person having a claim against the county be at the time the same accrues under any legal disability, every such person shall be entitled to present the same within one year after such disability shall be removed." (R. S. 19-308.)

The plaintiff well argues that the drainage district is an incorporated agency of the state; that, while it acts, by direction of the state, in its own name, it acts for the state and for the benefit of the public, generally, and, indirectly, at least, for the benefit of the people of the whole state, and the fact that in this action the drainage district uses its name as plaintiff made no difference; that the situation is exactly the same so far as statutes of limitation are concerned, as though the case had been prosecuted in the name of the state; that the drainage district exercises for the state a part of its police power to promote the general welfare, and that the construction and reconstruction of the bridges and approaches thereto and the clearing of the channel of a navigable river to secure flood protection is a governmental duty or function, citing various authorities, among which are, Roby v. Drainage District, 77 Kan. 754, 760, 95 P. 399; Shawnee County v. Jacobs, 79 Kan. 76, 99 P. 817; Drainage District v. Railway Co., 87 Kan. 272, 123 P. 991; Anderson v. Cloud County, 90 Kan. 15, 132 P. 996; Thomas...