Verdigris River Drainage Dist. 1 v. City of Coffeyville

• Decision Date: 28 January 1939
• Docket Number: 34109.
• Parties: VERDIGRIS RIVER DRAINAGE DIST. NO. 1 v. CITY OF COFFEYVILLE et al. [*]
• Court: Kansas Supreme Court

86 P.2d 592

149 Kan. 191

VERDIGRIS RIVER DRAINAGE DIST. NO. 1 v. CITY OF COFFEYVILLE et al. ^[*]

No. 34109.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

The State Highway Commission is not a "commercial corporation" or "industrial corporation," such as may be organized under general corporation laws, but is an arm of the state.

Venue of action against State Highway Commission is in Shawnee county, except as to those matters in which Legislature has specifically provided that action against commission may be brought elsewhere. Gen. St.1935, 68-419.

In action in Montgomery county by drainage district against city and State Highway Commission, to recover expense of repair of floodgate in levee, service on city in Montgomery county did not authorize service on commission in Shawnee county, where source of city's liability, as pleaded, was entirely separate from source of commission's liability. Gen.St.1935, 24-452, 60-411, 60-414, 60-509, 60-2502, 68-418 68-419.

To justify service of summons on a defendant in a foreign county, the causes of action against the parties must be rightly joined. Gen.St.1935, 60-2502.

1. Under the provisions of section 19, chapter 225, of the Laws of 1929, the State Highway Commission assumed the rights and liabilities of the various counties of the state on all existing contracts for the construction, improvement reconstruction or maintenance of state highways and bridges and the counties are not now liable on such contracts.

2. The venue of an action against the state highway commission is in Shawnee county, except as to those matters in which the legislature has specifically provided an action against it may be brought elsewhere.

3. Under the provisions of the code of civil procedure, in order to justify service of summons on a defendant in a foreign county, it is not sufficient to first obtain valid service on a defendant in the county in which the action is properly brought against the latter defendant, but the causes of action against the parties must be rightly joined.

Appeal from District Court, Montgomery County; J. W. Holdren, Judge.

Action by the Verdigris River Drainage District No. 1, Montgomery County, against the City of Coffeyville, the Board of County Commissioners of Montgomery County, and the State Highway Commission of Kansas. From rulings overruling a motion to quash service of summons and a demurrer challenging jurisdiction of the court and sufficiency of petition to state cause of action against it, the State Highway Commission of Kansas appeals.

Reversed.

Lester M. Goodell and Otho W. Lomax, both of Topeka, and James A Brady, of Cherryvale, for appellant.

Chas. D. Welch, of Coffeyville, for appellee.

WEDELL Justice.

This was an action by the Verdigris River Drainage District No. 1, Montgomery County, against the City of Coffeyville, the Board of County Commissioners of Montgomery county, and the State Highway Commission, to recover a money judgment alleged to be due as costs and expenses for the repair of a floodgate in plaintiff's levee. The action was brought in the district court of Montgomery County.

The Highway Commission interposed a motion to quash the pretended service of summons on it in Shawnee county for the reason such service conferred no jurisdiction on the district court of Montgomery county, and that the proper venue for an action against it was in Shawnee county. It also lodged a demurrer which likewise challenged the jurisdiction of the court and the sufficiency of the petition to state a cause of action against it. The motion and demurrer were overruled and from those rulings the State Highway Commission appeals. No other rulings, orders or judgments, if any exist, affecting the liability of the County Commissioners of Montgomery county or the City of Coffeyville, are before us for review. We shall refer to the plaintiff as the Drainage District, to the Board of County Commissioners of Montgomery county, as the County, to the City of Coffeyville, as the City, and to the State Highway Commission, as the Commission.

The pertinent facts contained in the petition were in substance as follows: The Drainage District is situated within Montgomery county and its territory comprises the eastern part of the city of Coffeyville, and the land between the east boundaries of the city and the Verdigris River. Many years ago, the exact date being unknown, the Drainage District caused to be constructed and has maintained a levee on the north, east and south sides of the Drainage District, for the purpose of preventing the flood waters of the Verdigris River from inundating the territory within the Drainage District. In the year 1921, and prior thereto, what is now known as Sunflower street was a county road, and was maintained by the Country. Prior to the year 1921 the City had so arranged its streets and alleys, and has at all times since so maintained them, that in times of heavy rains the water falling within the City would flow east and cover and flood the road and thus cause it to be difficult for the County to maintain and keep it open for travel. The County desired to cut the north levee and to install therein a drain and floodgate in order to take care of the flood waters covering the road. On December 20, 1921, the County and the Drainage District entered into a written contract permitting the County to cut the levee and construct a drain therein equipped with a floodgate. The contract required the County to maintain the drain and floodgate and further provided that in the event the County did not do so, the Drainage District could make the necessary repairs at the expense of the County. [The contract was made a part of the petition.] The County did construct the drain and equipped it with a floodgate shortly after the execution of the contract.

The petition further alleged in substance: In the year 1928, the City extended its limits so as to include a part of the road within the limits of the Drainage District. The part of the county road, now within the city limits, became a city street and is known as Sunflower street. It is Highway No. 169. That part of Highway No. 169, also known as Sunflower street within the city, which is served and benefited by the drain and floodgate has since the year 1928 been under the jurisdiction and supervision and has been maintained by the City and the Commission.

The petition further set forth G.S.1935, 24-452, which provides: "That whenever any drainage district shall include any territory that comprises a part of any incorporated city which has constructed or desires to construct any sewer or drain through any embankment or levee constructed by such drainage district along the bank of any watercourse, so as to have an outlet for such sewers into said watercourse, it shall be the duty of such cities to maintain efficient floodgates and pumping apparatus, and keep the outlet of such sewers closed during periods of high water, so that the water cannot run back through such sewers and cause injury to lands protected by such levee; and if any city shall neglect to perform such duty the board of directors of such drainage district may provide the necessary floodgates and pumping apparatus and collect the cost thereof from such city; and the city shall be liable for all damages, if any, caused by such neglect of duty."

The petition further stated in substance: The territory of the Drainage District comprises a part of the City. The drainage from the City empties through the levee into the watercourse of the Verdigris River by means of the drain through the levee. The drain through the levee and floodgates serve Highway No. 169. On April 1, 1929, and pursuant to G.S.1935, 68-418, the Commission succeeded to the rights, duties and liabilities of the County under the contract of the County with the Drainage District. The drain became out of repair in 1937. The petition concludes with averments relative to the repairs made by the Drainage District, demand made on each of the defendants for payment and their refusal to pay.

From the facts pleaded we therefore find the following chronological order of events and the alleged source of the liability of the various defendants: In 1921, the County became liable to the Drainage District by virtue of its contract. In 1928, the City made itself liable to the Drainage District by virtue of G.S.1935, 24-452. In 1929, the Commission became liable to the Drainage District by reason of the contract between the latter and the County as provided by section 19, chapter 225, Laws of 1929 (G.S.1935, 68-418).

Did the district court of Montgomery county have jurisdiction over the Commission? Service was had on the City and the County within Montgomery county. Thereafter summons was served on the Commission in Shawnee county. The Commission is not a commercial or industrial corporation, such as may be organized under the general corporation laws of this state but is an arm of the state. Rome Mfg. Co. v. State Highway Comm., 141 Kan. 385, 388, 41 P.2d 761. The legislature by section 23, chapter 225, of the Laws of 1929, did specifically provide that actions for damages resulting from defective highways might be brought in the district court of the county in which the damage was sustained or in the district court of the county of which plaintiff is an actual resident at the time of sustaining such damage. G.S.1935, 68-419. It has been definitely determined the venue of actions against the Commission is in Shawnee county, except as to those matters in which the legislature has specifically provided an action against the Commission may be brought elsewhere. State ex rel. v. State Highway Comm., 133 Kan. 357, 358, 299 P. 955; Rome Mfg. Co. v. State Highway...