The State ex inf. McAllister v. Albany Drainage District
| Decision Date | 08 October 1921 |
| Parties | THE STATE ex inf. FRANK W. McALLISTER, Attorney-General, ex rel. E. W. MANION, ALEXANDER GREENWELL et al., v. ALBANY DRAINAGE DISTRICT |
| Court | Missouri Supreme Court |
Writ denied.
Kelso & Kelso, C. E. Gibbany, and Perry S. Rader for plaintiff.
(1) Quo warranto is a direct proceeding by the state and is available for nullifying the exercise of legislative power by a municipality, or by the legislative agent, in this case the circuit court. Sec. 2066, R. S. 1919; Sec. 2631, R. S. 1909; State ex inf. Killam v. Colbert, 273 Mo. 198, 209; Black v. Early, 208 Mo. 308; State ex rel. v Wilson, 216 Mo. 275; State ex rel. v. Gravel Road Co., 187 Mo. 446; State ex rel. Brown v Westport, 108 Mo. 582; State ex rel. v Westport, 116 Mo. 582; Lehigh P. & T. Co. v. Town of Lehigh, 156 Iowa 387, 398. (2) To nullify the attempted extension of its corporate limits, the suit should be brought directly against the corporation. 23 Am. & Eng. Ency. Law, p 662, b; City of East Dallas v. State ex rel. Putz, 73 Tex. 370; People v. Peoria, 166 Ill. 517; State ex rel. White v. Small, 131 Mo.App. 470; State ex inf. v. Fleming, 147 Mo. 9-12; State ex inf. v. Fleming 158 Mo. 567, 568; State ex inf. Major v. Kansas City, 233 Mo. 171; State ex inf. v. Woods, 233 Mo. 382. (3) It has been ruled by the court in banc that the extension of the boundary lines of the Albany Drainage District by the judgment of the Circuit Court of Gentry County was the exercise of legislative power by an administrative agent. State ex rel. Manion v. Dawson, 284 Mo. 490, 225 S.W. 97. (4) The judgment of the circuit court extending the boundary lines of the drainage district so as to annex relators' land and other lands, being an exercise of legislative power by an administrative agent, was not res adjudicata. State ex inf. v. Fleming, 147 Mo. 2, 11; State ex rel. White v. Small, 131 Mo.App. 470; State ex inf. v. Calbert, 273 Mo. 198; State ex rel. v Wilson, 216 Mo. 215, 275; Kayser v. Trustees of Bremen, 16 Mo. 88; Woods v. Henry, 55 Mo. 560; State ex rel. v. McReynolds, 61 Mo. 203; State ex inf. v Woods, 233 Mo. 357. (5) All the sections of the Act of 1913, Laws 1913, pp. 232 to 267, should be considered together, in order to arrive at the meaning of Section 40. In order to prevent one section of a statute from conflicting with the entire scope of legislative action, it is sometimes necessary to depart from a literal construction, and adopt the one that removes the conflict and produces harmony. State to use v. Heman, 70 Mo. 441, 451; Home Ins. Co. v. Wickham, 281 Mo. 300, 315; State ex inf. v. West Side Ry. Co., 146 Mo. 155, 167. (a) It is either (a) necessary to read the fundamental conditions for organizing a drainage district prescribed by Section 2 into Section 40 and apply them to the extension of the boundaries to include other large tracts, or (b) to rule that Section 40 is a mere correction statute and does not authorize the court to extend the boundaries to include other large tracts, or else Section 40 is no law at all and must be declared void for uncertainty. Bittle v. Stewart, 34 Ark. 224; Cook v. State, 26 Ind.App. 278; In re Hendricks, 60 Kan. 796, 806; Chaffee's Appeal, 56 Mich. 244; Matthews v. Murphy, 23 Ky. L. Rep. 750; State v. Gaster, 45 La. Ann. 636; People v. Taylor, 96 Mich. 576; State ex rel. v. Ashbrook, 154 Mo. 396; State v. West Side Ry. Co., 146 Mo. 155; State v. Excelsior Sp. Light Co., 212 Mo. 101; Merchants Exchange v. Knott, 212 Mo. 616, 636 to 643; State ex rel. v. Fort, 210 Mo. 558; State v. Partlow, 91 N.C. 550, 552. (b) A municipal or quasimunicipal corporation possesses and can exercise only such powers as are granted in express words, or those necessarily incident to or implied in the powers expressly granted. State ex rel. v. Wilder, 200 Mo. 105; Knapp v. Kansas City, 48 Mo.App. 492; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157. (c) Section 40 of the Act of 1913 fixed no limits to the amount of lands that may be added by the extension of the boundaries of a drainage district. It does not require the lands to be swamp or wet or overflowed. If it authorized the judgment rendered by the circuit court in this case, it would have authorized one that extended the boundaries north to Iowa and south to the Missouri River. It would also have authorized a judgment extending the boundaries to include all other farm lands in the State. The only conditions it imposes are (a) that the petition be filed by the board of supervisors or owners of lands adjacent to the district; (b) that notice be given; (c) that objectors may file objections; (d) that the court hear the petition and objections in a summary manner; (e) enter a decree according to its findings, and (f) appoint commissioners to assess benefits and damages. It does not require the court to be just or reasonable or to exercise a reasonable discretion. It does not indicate what the objections shall be. The circuit court has no judicial discretion in construing it, for this court has ruled, 225 S.W. 97, that the extension of the boundary lines of a drainage district is the exercise of legislative or administrative power, delegated to the court as an administrative agent by the state. If said Section 40 must stand alone, it is either (a) a correction statute, limiting the hearing and objections to a correction of errors in the plan for reclamation and the decree incorporating the district, or (b) is so incomplete and uncertain as to be void. (6) Sections 2 and 40 of the Act of 1913 must be read together, and when read and considered together they mean that all the fundamental conditions for organizing a drainage district prescribed by Section 2 must be present before the circuit court can extend the boundaries to include other large tracts. Grimes v. Reynolds, 184 Mo. 688; Grimes v. Reynolds, 94 Mo.App. 584; Sales v. Barber Asphalt Pav. Co., 166 Mo. 667; Lewis-Suther-land on Stat. Construction, secs. 368, 443; State ex rel. v. Dearing, 173 Mo. 492; Roth v. Gabbert, 123 Mo. 32; State ex rel. v. Fort, 180 Mo. 112; King's Lake Drain. & Levee Dist., 176 Mo. 557; Ewing v. Vernon County, 216 Mo. 692; State ex rel. v. Wiggins Ferry Co., 208 Mo. 622, 639; State ex rel. v. Chariton Drain. Dist., 252 Mo. 360; State ex rel. v. West, 272 Mo. 315. (7) If said Section 40 authorizes the extension of the boundary lines of an existing drainage district so as to include other large tracts, and the conditions prescribed by Section 2 must be read into Section 40, then the petition filed by the board of supervisors to extend the boundaries will not authorize the circuit court to entertain it unless it shows on its face (1st) that the lands to be added, together with those already contained in the district, constitute one contiguous body, or drainage unit, of swamp, wet or overflowed lands, or lands subject to overflow, and (2nd) that the purpose of extending the boundaries is to reclaim the lands to be added from the effects of water either (a) for agricultural or sanitary purposes or (b) to promote the public health, convenience or welfare, or (c) to conserve some other public utility or benefit, and (3rd) that the owners of a majority of the acres to be added have consented to the extension, either by joining in the petition or by filing their separate written consent. State ex inf. v. Woods, 233 Mo. 357; 32 Cyc. 1424. (a) All jurisdictional facts must affirmatively appear upon the face of the proceedings and no presumptions are indulged as to matters not so appearing. State ex rel. v. Wilson, 216 Mo. 277; State ex inf. v. Woods, 233 Mo. 377; State ex rel. v. Page, 107 Mo.App. 213; State ex rel. v. Seibert, 97 Mo.App. 213; Ry. Co. v. Campbell, 62 Mo. 588; Ellis v. Pac. Ry. Co., 51 Mo. 203; Ry. Co. v. Young, 96 Mo. 39; Leslie v. St. Louis, 47 Mo. 474; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157. (b) The supervisors' petition to extend did not show upon its face the affirmative facts necessary to authorize the circuit court to entertain it. It did not show either (a) that the lands to be added were a part of the contiguous body, or drainage unit, of which the lands in the organized district was the other part, or (b) that the purpose of the extension was to promote some public purpose or (c) that the owners of a majority of the acres to be added, or the owners of any of them, had consented to the extensions. (c) The evidence clearly establishes that the owners of a majority of the acres to be added had not consented to the extensions. (d) The evidence clearly shows that the lands in the Northern Extension and the lands in the district organized constituted separate drainage units, and did not constitute a "contiguous body" within the meaning of those words as used in Section 2. (e) By no fair construction of words can the words "contiguous body" used in Section 2 be expanded to include the lands lying along Middle Fork seven or eight miles, and lying along West Fork four or five miles, above the point where their waters unite with those of East Fork to form the main Grand River. Ingersoll on Public Corporations, pp. 151 et seq.; Traux v. Pool, 46 Iowa 256; Elsberry Drain. Dist. v. Harris, 267 Mo. 153. The words "adjacent thereto" used in Section 9 of said Act of 1913, and in the notice prescribed by Section 40, mean adjoining, next to, close to, in the neighborhood of. 1 C. J. 1194. (8) If Section 40 is interpreted to mean that the circuit court can extend the boundaries of a drainage district to include other large tracts and subject them to the payment of taxes to pay for drainage works in the district as organized and through the extended areas, upon the petition of the supervisors alone, and without the consent of the owners of any of the lands to be added and against their written...
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