State Ex Rel. Kinder v. Inter-River Drainage District

*323 ELDER., J. This is a mandatory injunction proceeding to compel defendants to construct sixty-one bridges and approaches over the ditches and levees of defendant drainage district where the same intersect tbe public roads of Butler County, and to pay for certain bridges already constructed by the said county. The case is here upon appeal from a judgment sustaining a demurrer to plaintiff’s amended petition. *324 Since the institution of the action Francis M. Kinder became prosecnting attorney of Bntler Connty, and his name has been substituted in lien of tint of David W. Hill, prosecnting attorney at the time the suit was filed. The petition was originally filed in the Circuit Court of Butler County. Omitting a portion which was ordered stricken out, the same alleges that the Inter-River Drainage District of Missouri is a duly incorporated drainage district under Article 1, Chapter 41, Revised Statutes 1909, as amended by the Act of 1911, the decree of incorporation being rendered in the Circuit Court of Butler County qn January 24, 1913; that the said drainage district comprises 127,500 acres of swamp and overflowed land within Butler County, lying between the St. Francis and Black rivers; that the report of the commissioners appointed to assess the benefits and damages to the property in said district was confirmed by the Circuit Court of Butler County on April 12, 1918; that said district through- its duly authorized officers and board of supervisors, adopted a plan of drainage, and, in September 1918, commenced the work of constructing the ditches and levees provided for in said plan; that said plan contemplated the construction of 36 ditches or canals, aggregating 210 miles in length, and two levees, aggregating 60 miles in length; that the minimum width of said ditches at the bottom is 12 feet, the maximum width is 55 feet and the average depth is 8 feet; that the said plan of dráinage provided for the cutting of the public roads within said district in 61 different places where the proposed ditches and levees cross said roads (the various places being specifically designated); that said plan contemplated the building of 61 bridges, with necessary approaches, where said ditches and levees intersect such public roads; that defendants have engaged the services of contractors to construct said ditches and levees and said contractors are now engaged in said work and have already cut ditches through the public roads within said district. *325 The petition then alleges that “all of the said highways were necessary and were established and in nse before and at the time of the adoption of the plan for drainage and the. location of said ditches anddevees;” that defendants have contracted to have all said ditches and levees finally constructed, and to have said drainage plans fully executed, except the building of bridges, within two years from October 26, 1920; that the construction of said ditches and levees will destroy the several public roads where said ditches and levees cross, rendering the same impassable and useless until proper bridges shall have been erected; that to restore said highways to their former condition and to construct bridges .at said intersections will, according to the estimate of the County Highway Engineer, cost approximately $109,778.08, and plaintiff will be damaged in said amount; that defendants have openly declared to the county court that they refuse to cause said bridges and approaches to be erected, and to pay any expense connected therewith; that the general public have suffered and in the future will suffer great injury, damage and inconvenience by reason of defendants causing said ditches and levees to be cut through said public roads; that “while the law was in doubt about whether the county or the drainage district should build such bridges, the said County of Butler expended of its own funds in permanently bridging some of said ditches at such public road intersections, in order to abate such nuisances,” the sum of $7918.43, and for temporary bridges the sum of $371.85; that defendants have been and are now trying-to force the County of Butler to erect said bridges at the county’s expense; that plaintiff has no adequate remedy at law, and brings this suit in equity. Wherefore, a mandatory injunction is prayed ordering and compelling defendants to cause to be constructed and maintained, at the expense of the drainage district, permanent steel bridges and approaches suitable and convenient for the public travel wherever said highways have *326 already been cut, and at all other points within ten days after said ditches or levees are cut, and to recoup Butler County for the sum of $8290.28 it has expended in bridging such ditches, and that a temporary injunction be issued restraining defendants from interfering with the easement of the public at said intersections. To this petition defendants filed a demurrer which was overruled. Thereafter defendants applied for a change of venue which was granted to the Circuit Court of St. Francois County, and defendants there filed an amended demurrer. The grounds of demurrer, briefly stated, are: (1) That the petition does not state facts sufficient to constitute a cause of action. (2)That Article 1 of Chapter 41, Revised Statutes 1909, as amended by the Act of 1911, does not empower the defendant drainage district to assess lands for building any part of public roads or bridges. (3) That the defendant drainage district is without power to levy an assessment for any purpose other than to pay the cost of constructing “ditches, drains, canals, levees, dikes and other drainage works and improvements.” (4) That the granting of the relief prayed for would be a violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States and of Section 3 of Article 10 of the Constitution of Missouri. (5) That Section 30 of the Act of 1913, Laws 1913, pages 232-267, upon which plaintiff bases its action, is unconstitutional and void. . Prior to a hearing on the amended demurrer, the parties entered into a stipulation whereby it was agreed that benefits had been assessed on 116,995 acres; that the total amount of benefits assessed is $2,534,481.90; that the total tax levied on lands within the district, including interest, amounts to $3,853,172.83, and the total estimated cost of the work and improvements is $1,900,000; that prior to the organization of the district much of the land therein was subject to overflow and for several months in each year was rendered unfit for agricultural purposes; that all of the lands in the *327 district were conveyed by the United States to tbe State of Missouri under the Act of Congress of September 28, 1850, and were subsequently conveyed by Butler County on or before the year 1880 to private individuals or corporations; that such lands constitute about thirty per cent of the area of Butler County; that the defendant drainage district has never elected to reorganize under the provisions of the Circuit Court Drainage Law of 1913, but the board of supervisors has certified the taxes levied and to be collected as provided under the law of 1913; that the assessed valuation of Butler County as of June 1, 1919, is $11,171,264.48; that the aggregate rate of taxation for county purposes levied for 1920 was: 50 cents for county revenue, 2 cents for county-bond sinking fund, 2 cents for county-bond interest fund, 25 cents for special road and bridge fund, 20 cents for county road and bridge tax, and 25 cents for road 'construction tax, each of which are levied on the $100 assessed valuation. The St. Francois County Circuit Court sustained defendants ’ demurrer, and, plaintiff declining to further amend its petition, the same was dismissed. I. Relator urges that the court erred in sustaining defendants’ demurrer and contends that “it is the duty of the drainage district and not the duty of the County of Butler to build the bridges , , . ,. rendered necessary by the construction of the ditches and levees.” In support of the contention made relator cites Section 5513, Revised Statutes 1909, and Section 30, Laws 1913, page 250 (now Sec. 4406, R. S. 1919); and State ex rel. Ashby v. Medicine Creek Drainage District, 224 S. W. 343. Relator’s insistence has often been before this court en banc and each time has been ruled upon adversely. [State ex rel. Jones v. Chariton Drainage District, 252 Mo. 345; State ex rel. McWilliams v. Little River Drainage District, 269 Mo. 444; State ex rel. *328 Caruthers v. Little River Drainage District, 271 Mo. 429.] Section 5513, Revised Statutes 1909, now relied upon by relator, was' thoroughly considered, upon facts analogous to those in the ease at bar, in the Chariton Drainage District Case, supra, wherein Woodsoh, J., speaking for the court, concluded by saying, l. c. 362: “We are, therefore, clearly of the opinion that the duty of constructing the bridge in question rests upon the county of Macon, and not upon the defendant drainage district. ’ ’ The said section was again construed, in a painstaking manner, in State ex rel. McWilliams v. Little River Drainage District, supra, wherein Fabis, J., summarized by saying, l. c. 463: ‘ ‘ There is not given anywhere in Article 1 of Chapter 41” (of which Section 5513 is a part), “or in the amendments thereto of 1911 (Laws 1911, p. 205 et seq.), any power to a drainage district to levy'taxes for the construction of maintenance of bridges, or to expend the revenues of a drainage district for any such purpose.” The doctrine enunciated in the Chariton Drainage District Case was then reaffirmed. The said section was again before this court in the Caruthers Case, supra, and Walkek, J., said, l. c. 437: ‘ ‘ The question as to whether, the county should be required to build the bridges rendered necessary by the ditches or channels made in and across the highway by the drainage district has been answered in the affirmative by this court in two recent cases” (citing the McWilliams and Chariton Drainage District cases). “'To our mind the reasoning of these cases is clear and conclusive and we find no ground here urged of sufficient force to cause us to change the conclusion there reached.” After a thorough examination of the above mentioned cases, and after carefully reading and re-reading Section 5513, we are firmly convinced that there is nothing therein contained which puts the burden of building bridges upon the drainage district carrying out the plan of reclamation or protection. We must therefore *329 adhere to our former declarations that the duty devolves upon the particular county involved. State ex rel. Ashby v. Medicine Creek Drainage District, supra, presents a somewhat comprehensive' review of the Drainage Act of 1913 (Laws 1913, p. 232 et seq.), and particularly of Section 30 of said act (now Sec. 4406, R. S. 1919) invoked by relator. True, as relator urges, the said case (a decision by Division Two of this court) does lay down the rule that drainage districts and not the county are required to construct bridges rendered necessary by the drainage project. However, that adjudication is not determinative of the instant proceeding, for the' reason that the Medicine Creek Drainage District, as shown by the opinion, was organized in 1916 under the Act of 1913. The district involved in the case at bar, as shown by the petition, was organized on January 24, 1913, under the Act of 1909, as amended by the Act of 1911. The Act of 1913 was not approved until March 24,1913, two months after the organization of the district before us. By Section 52 of said act it is provided that districts theretofore organized, or in process of organization, might elect to reorganize under the said act. But, by the stipulation entered into herein it is agreed that “the defendant drainage district has never elected to reorganize under the provisions of the Circuit Court drainage Act of 1913.’-’ It is therefore to he governed by the law as .it existed at the time of its organization. And by Section 62 of the Act of 1913 it is specifically provided that the-repeal of the Acts of 1909 and 1911 “shall not have the effect of suspending, abating, abridging, impairing, vitiating or nullifying any right, power, remedy or lien heretofore given, created or conferred upon any drainage district heretofore organized or .in process of organization at the time of passage of this act, under any law of this State, but all such rights, powers, remedies and liens are hereby directly preserved to all such drainage districts. . . . All rights, powers, liens and *330 remedies now existing in behalf of any drainage district of this State, may be. enforced and made available in the manner and by the means' and mode now provided by law.” It is manifest, therefore, that on March 27, 1913, when the Act of 1913 became effective, the respondent district herein had theretofore been organized; that it has not elected to reorganize under the Act of .1913; that by Section 62 of said act all the rights and powers possessed by it under the Acts of 1909 and 1911 were preserved; and that under the Act of 1909, thrice construed by this court en banc, it was relieved of the burden of building the bridges herein complained of. Accordingly, the rule announced in the Medicine Creek Drainage District Case is not here applicable. II. Relator insists, however, that as the board of supervisors of the respondent district “has certified the taxes levied and to be collected as provided for under the laws of 1913” (as was stipulated between the parties), the district therefore proceeded under the Act of 1913, and the Medicine Creek Drainage District Case, supra, is controlling. Section 62 of the Act of 1913 (now See. 4438, R. S. 1919) provides that the rights, powers, liens and remedies which are preserved to districts theretofore organized, “may be enforced and made available under the provisions of this act, if applicable, at the election of the drainage district.” Section 52 of said act (now See. 4428, R. S. 1919) provides that no reorganization shall be required of districts theretofore organized, “but all such districts shall have the right to proceed under the provisions of this act.” In certifying the taxes levied and to be collected, the board of supervisors of the respondent district doubtless proceeded under the authority granted by the said two sections. Such proceed-ure, relating to a specific administrative detail, did not however, forfeit any of the rights, powers, liens or remedies explicitly preserved to the district by Section 62, *331 of which the right to be relieved of the cost of building necessary bridges was one. If this were not true, then by proceeding under the Act of 1913 in any particular, no difference how inconsequential, a district would be held to have forfeited its franchise rights and privileges reserved and guaranteed by Section 62, a situation too anomalous to permit of serious consideration. Plainly, as specifically declared by Section 62, and as also exemplified by Sections 58 and 61, it was the intent of the Act of 1913 that no rights or powers enjoyed by districts theretofore organized were to be thereby vitiated or impaired. And the optional authority given to proceed under the Act of 1913 was but ancillary to the law7 under which the district was originally incorporated. The point made must be ruled against relator. III. The burden of constructing the bridges in question being east by the law upon Butler County, it follows that relator’s petition herein does not state a cause of action. The demurrer interposed by defendants was therefore rightfully sustained. It results that the judgment of the circuit court must be affirmed. Let this be done. All concur.