Wills v. Bates County

• Decision Date: 01 June 1909
• Citation: 170 F. 812
• Parties: WILLS et al. v. BATES COUNTY et al.
• Court: U.S. District Court — Western District of Missouri

170 F. 812

WILLS et al. v. BATES COUNTY et al.

United States Circuit Court, W.D. Missouri, Western Division.

June 1, 1909

Lowe &amp Shannon and William Mumford, for plaintiffs.

Thos J. Smith, for defendants.

PHILIPS District Judge.

This case has been submitted on the demurrers filed by the respective defendants, and also on motion to make the petition more specific. The petition is based upon a contract made between plaintiffs' assignor and one A. H. Bell, as chief engineer, for construction of a drain in drainage district No. 1, Bates county, Mo. The ditch was divided into certain sections of different numbers for construction. The work was done by the plaintiffs, accepted and paid for by the county, except as to one division, about which this controversy arises.

The claim of the petition is that the character of the formation of the earth through which this portion of the ditch was to be constructed was materially different from that called for by the contract, and was not of such formation as the profiles furnished by the engineer called for; that, as disclosed by the profiles the work required by the contract was to be done by steam dredge, could not be done therewith by reason of the undisclosed formation, rock, etc.; that this fact was brought by petition of the contractor to the attention of the county court, and that the county court thereupon, in effect, directed the plaintiffs to proceed with the completion of said work, without prejudice to either party as to whether the additional and more expensive work to excavate and of construction came within the terms of the original contract; that the plaintiffs thereupon proceeded to perform and complete the said work at an additional expense of construction, for which the county refused to pay, and to recover which this suit is brought.

The suit is brought against both the county and drainage district No. 1 of Bates county. The separate demurrers of the defendants raises the question, first, of a misjoinder of parties defendant. Without entering into any detailed discussion, I am of opinion that the demurrer is well taken as to the defendant drainage district. The whole scope and tenor of the statute under which the contract was made indicate that it was made, in effect, under orders of the county court of Bates county, in pursuance of a power conferred upon it by the Legislature.

The only provision respecting the drainage district as a legal entity is found in section 8283, Rev. St. 1899, as amended by Laws 1905, p. 182 (Ann. St. 1906, p. 3918), which recites that:

'If the court shall find in favor of making the improvement, the lands which, as hereinafter provided, it may be found will be thereby benefited, shall, for the purpose of this article, constitute a drainage district which shall be designated by number.'

This does not by any means, it seems to me, constitute such drainage district a quasi corporation of the county. It was nothing more than the designation of the district to be especially benefited by the construction of the draining ditch, for the purpose of ascertaining the property situate therein to be assessed to raise the necessary revenue to pay for the construction. The act, taken in its entirety, clearly enough indicates that the county court had entire control and supervision of the matter of authorizing the construction work, and was, in contemplation of the statute, the responsible party to contract therefor, and to and from whom the contractor must look for his pay. The county court on petition, provided for by the act, could issue bonds...