The State ex rel. Harmony Drainage District v. Hackmann

• Citation: 267 S.W. 608,305 Mo. 685
• Decision Date: 18 December 1924
• Docket Number: 25748
• Parties: THE STATE ex rel. HARMONY DRAINAGE DISTRICT v. GEORGE E. HACKMANN, State Auditor
• Court: United States State Supreme Court of Missouri

267 S.W. 608

305 Mo. 685

THE STATE ex rel. HARMONY DRAINAGE DISTRICT v. GEORGE E. HACKMANN, State Auditor

No. 25748

Supreme Court of Missouri

December 18, 1924

Peremptory writ awarded.

Dan V. Herider and A. B. Hoy for relator.

(1) The relator has no remedy except by writ of mandamus. An affirmation of the judgment of the circuit court in the case pleaded by respondent as pending in this court would afford no relief to relator, for the reason that such judgment does not reach the respondent herein. State ex rel. v McCracken, 60 Mo.App. 650; Barnes v Gottschalk, 3 Mo.App. 111; State ex rel. Craig v Dougherty, 45 Mo. 294; State ex rel. v. Hackmann, 274 Mo. 551. (2) Every presumption in favor of the validity and constitutionality of the Act of 1921, will be indulged, and the act will not be held unconstitutional unless it plainly violates some provision of the Constitution and there is no escape from such conclusion. State ex rel. v. Burton, 266 Mo. 711; Greene County v. Lydy, 263 Mo. 77; State v. Kirby, 260 Mo. 120; Kansas City v. Land Co., 260 Mo. 395. (3) The subject of "Drainage and Reclamation of Swamp and Overflow Lands" has been held broad and comprehensive enough to authorize the enactment of any legislation which has for its object the reclamation or protection of lands from the effects of water. Birmingham Drain. Dist. v. Ry. Co., 266 Mo. 60; Houck v. Little River Drain. Dist., 248 Mo. 373, 239 U.S. 254. It is sufficient if the title to a statute does not mislead as to the chief topic of the act and that the main features of it have a reasonable and material connection with the subject named in the title. Obrien v. Ash, 169 Mo. 283; In re Burris, 66 Mo. 442; State ex rel. v. Mead, 71 Mo. 266; Burge v. Railroad, 244 Mo. 76. Reference to a statute by number is sufficient. State v. Heege, 135 Mo. 112; State v. Marion Co. Court, 128 Mo. 427. (4) The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. 36 Cyc. 1106; Eaton v. Gmelich, 205 Mo. 152; Armstrong v. Modern Brotherhood, 132 Mo.App. 171. It is the duty of the court so far as practicable to reconcile the different provisions so as to make them consistent and harmonious and to give a sensible and intelligent effect to each. 36 Cyc. 1129; Stump v. Hornbeck, 94 Mo. 26; State ex rel. Tuller v. Seehorn, 246 Mo. 568. (5) The permit from the Federal Government secured by the county court, is prima-facie sufficient. Secs. 235, 9903, 9910, United States Compiled Statutes 1915.

Jesse W. Barrett, Attorney-General, and W. L. Vandeventer, Assistant Attorney-General, for respondent.

(1) The statute does not authorize the county court to levy taxes against lands in a drainage district for the sole purpose of constructing retards in the Missouri River. (a) A municipal corporation possesses such powers and such only as the State confers upon it. 28 Cyc. 257, 258, 263; Rehill v. Jersey City, 71 N. J. L. 109; Farwell v. Seattle, 43 Wash. 141; The Mayor v. Ray, 19 Wall. (86 U.S.) 475; City to use v. Eddy, 123 Mo. 546, 557; City of Independence v. Cleveland, 167 Mo. 384. (b) The usual drainage district, such as one organized under the Circuit Court Drainage District Act, is a public corporation, but its powers are very much less than those granted to a municipal corporation. It is at most only a quasi-municipal corporation. Such a district is organized merely for a special and limited purpose. Its powers are restricted to such as the Legislature has deemed essential for the accomplishment of that purpose, and it is only authorized to raise funds for the specific objects mentioned in the statute. Elmore v. Drainage Comrs., 135 Ill. 277; State ex rel. Caldwell v. Little Riv. Drain. Dist., 291 Mo. 72; Sherwood v. Drainage District, 298 Mo 82; State ex rel. Hausgen v. Allen, 298 Mo. 448; 9 R. C. L. p. 644, sec. 33; Morrelton Imp. Dist., 71 Ark. 4; Board of Improvement v. Moreland, 94 Ark. 380; Drainage District v. Campbell, 154 Mo. 157. (c) The county court has no power to straighten, widen, alter or deepen a navigable stream. The statute limits and restricts its operation to "natural streams -- not navigable." Sec. 4477, Laws 1921, p. 304; Sec. 4477, R. S. 1919; State ex rel. v. Taylor, 224 Mo. 397. (d) The main purpose contemplated by the statute is the construction of a ditch. The construction of a levee is to be an incident to the construction of the ditch. The construction of retards in the bed of a navigable river is not contemplated at all. The construction of "permeable tree retards" extending from one hundred to three hundred feet into the bed of the Missouri River, at right angles to its bank, are not incidents of either a ditch or levee. Certainly the construction of such retards as the sole improvement, with no provision whatever for ditches or levees, is not contemplated by the statute. Sec. 4477, Laws 1921, p. 304; Secs. 4478, 4480, 4484, R. S. 1919; Royse v. Railroad Co., 160 Ind. 592. When the statute is read as a whole it is clear that it spends its force on the construction of ditches, together with such other works, such as levees and lateral ditches, as are necessary to make the ditches effective as channels to carry off overflow waters. In addition to the sections cited above, see Secs. 4506, 4508, 4511, 4512, 4513, 4518, 4519, 4522, R. S. 1919. See also S.W. Mo. Light Co. v. Scheurich, 174 Mo. 235. Article 4 had its origin in the Act of 1897, Laws 1897, p. 146. Section 1 of that act provides only for the construction of "any ditch, drain or watercourse," and those words have been retained in all subsequent amendments. (e) The history of Article 4 shows that the construction authorized by it was ditches to drain and reclaim swamp and overflowed lands, and such other incidental works as were necessary to make the ditches effective. Such purpose is manifested by the title of the original act and all subsequent amendments. Laws 1897, p. 146; Laws 1899, p. 278; R. S. 1899, sec. 8278 et seq.; Laws 1903, p. 234; Laws 1905, p. 180; Laws 1907, p. 341; Laws 1909, p. 632; R. S. 1909, sec. 5578 et seq.; Laws 1919, p. 294. For the purpose of arriving at the intention of an act, courts look to its title, and read it and every part of the act together. State v. Whitaker, 160 Mo. 69. (f) Neither in the first report or the second report of the viewers and engineer was there any statement, nor in the order of the county court approving their first report or in the order confirming their second report, was there any finding that any of the lands in the district had ever overflowed or that they were subject to overflow. It is clear that the purpose of the proposed improvements was not to prevent the waters of the Missouri River from overflowing the lands of the district, but that the sole and only purpose was to deflect, divert and alter the current of the waters of the Missouri River and thereby prevent the erosion of the river bank. (g) There must be distinct authority of law for every levy of taxes. Taxes cannot be levied by counties or municipalities except for the very purpose, in the manner and under the conditions prescribed by law. Railroad v. Apperson, 97 Mo. 308; State ex rel. Clinton County v. Ry. Co. 87 Mo. 236; State ex rel. Aull v. Shortridge, 56 Mo. 129; Kansas City v. Bacon, 157 Mo. 463. The General Assembly can grant to counties or other municipal corporations power to levy taxes "for county and other corporate purposes," and for those purposes only; and the grant must be made in clear and unambiguous terms. Sec. 1, Art. 10, Mo. Constitution; City of St. Louis v. Laughlin, 49 Mo. 562; Brooks v. Schultz, 178 Mo. 222. Whether the tax be a general ad valorem or special assessment for local improvement, it still must be for a corporate purpose. "Every tax must rest on a public purpose to which its proceeds must be devoted." The power to tax "is measured by its purposes." Houck v. Little Riv. Drain. Dist., 248 Mo. 384. (h) The construction of retards in the bed of the Missouri River for the purpose of deflecting and diverting its waters is not a "corporate purpose" of a drainage district, for the reason that the Government of the United States has jurisdiction over the bed of the river and its waters from bank to bank, and the State has no authority over its bed, and cannot interfere with its waters. To construct retards in the Missouri River, at right angles to its bank, extending one hundred feet or more into its bed, is not a corporate purpose of the State or of the county, or of a drainage district organized by the county, and a district organized for that sole and only purpose is beyond and in excess of the corporate powers of either. 8 Ency. of U.S. Supreme Ct. Rep. 815; United States v. Rio Grande Irr. Co., 174 U.S. 703; Economy Light Co. v. United States, 256 U.S. 123; Cole v. Dooley, 137 Mich. 419; In re Doney Drain. Dist., 129 Wis. 138; In re Horlcon Drain. Dist., 136 Wis. 227; Bixby v. Parish, 148 Wis. 424; Fulton Light, H. & P. Co. v. State, 200 N.Y. 400. (i) The purposes for which drainage districts are created, in this State and every other State, is to reclaim wet and overflow lands, or lands subject to overflow, from surface waters, by the construction of artificial channels, levees and other works incident to efficient ditches and levees, and their operation has always been confined to such works. No statute of any State has been found that authorizes the creation of a drainage district for the sole purpose of constructing retards in a navigable stream. In every Missouri act the improvements to be constructed always include either a ditch or levee, or both. (j) The record shows that the proposed improvements are to be constructed entirely outside of the boundary lines of the drainage district. The boundary...