State Ex Rel. Harmony Drainage District v. Hackmann , 305 Mo. 685 ( 1924 )

Upon re-assignment of this case, on December 3, 1924, it fell to the lot of the writer to prepare the opinion. It is an original proceeding in mandamus, in which it is sought to compel respondent, as State Auditor, to register one of an issue of bonds of relator, a drainage district organized under the provisions of Article IV, Chapter 28, Revised Statutes 1919, as amended by the Act of 1921, Laws 1921, page 303.

The lands assumed to have been incorporated into the drainage district in question consist of approximately 4881 acres, lying in a sharp bend of the Missouri River in the shape of a peninsula. The river runs along the north line of the district in an easterly direction for a distance of about five miles, and then turns abruptly and runs in a southwesterly course. A short distance south of the turning point it is crossed by the Chicago Alton Railroad and the state highway. After crossing the river these two highways run westwardly along and near the river bank and paralleling it.

The lands embraced within the district are not subject to overflow except contingently. The petition to incorporate them into a drainage-district, addressed to the county court, alleged: "that the present wash or bank erosion of the lands in said district will continue unless protection be had and will wash away the lands in said district near the river now protecting the entire district from overflow, and will result in all the lands and other property in said district being subject to overflow and being overflowed by the Missouri River, to the detriment of the public health," etc.

The viewers and engineer sent out by the county court to determine approximately the proper character, dimensions, location and probable cost of the improvement necessary to accomplish the object of the petition reported:

"The character of the improvement would consist of a series of permeable tree retards, constructed at approximate right angles to the bank, cabled securely together and anchored to re-inforced concrete piling completely submerged below the possible line of scour. The retard itself to be built from the bed of the river to above the surface of the water and from the bank out into the stream for a distance varying from one hundred to three hundred feet in length. In general these structures will be placed along the north line of the proposed district from a point in the northwest quarter of Section 1, Township 51 North, Range 19 West, and extending along the river bank to a point in the northeast quarter of Section 3. The main work would have to be installed along the bank lines through said Sections 3, 4 and 5. The work contemplated in Section 1, above referred to, would be for the purpose of preventing further unravelling or destruction of the existing installation and to prevent the river from flanking said work or possibly cutting through into the lower lands immediately to the south. The structures installed through Sections 3, 4 and 5 would be placed an approximate distance of eight hundred feet apart, which locations are shown on the map attached hereto. The probable cost of said work has been estimated at two hundred thousand dollars ($200,000)."

Pending the proceeding in the county court to get the drainage district incorporated and functioning, the current was all the while cutting away the river bank along the north side of the district. So rapidly was this erosion taking place that it was feared the river would break through and form a new channel from three to four miles south of the railroad and highway bridges, leaving those structures high and dry. As a result of this apprehension the Chicago Alton Railroad Company and the State Highway Commission cooperating with the War Department, immediately began the construction of most of the improvements contemplated through the formation of a drainage district. The engineer and viewers sent out by the county court the second time, for the purpose of establishing the precise location, dimensions and formation of the proposed improvement reported:

"The district has a frontage on the Missouri River along the north line of the district approximately five miles. Two miles of this front is already revetted with bank protection and other interested parties have already contracted and are now constructing additional bank protection for a considerable portion of the remaining frontage. There are, however, two points along the front where it is essential that bank protection work be installed for the protection of the district. At these two points protection work will not only give the desired protection for the district, but will safeguard and complete other work which is now giving partial protection to the lands and other properties in the district. Since the survey was made in October, 1923, a survey on March 26th showed that the river had cut back a distance varying from 100 feet to 500 feet and had now arrived at a point where in one place it was within 95 feet of the right-of-way of the Chicago Alton Railway.

"In general, the soil is sandy and as a consequence the banks of the river are readily subject to erosion. A swail extending through section three across the lands of Amelia Kessler and Mr. Friemnoth provide an added threat to the possibility of the river ultimately breaking through the point now extending immediately above the railway and highway bridges.

"In general the plan calls for the construction of three standard current retards of the same type as are now being constructed by the Highway Department with the cooperation of the War Department at the same location."

The character and construction of the retards recommended are described in the excerpt from the viewers' first report heretofore set out. The cost of their installation was estimated at $20,000.

After the confirmation of the final report of the viewers and engineer, which included an assessment of benefits and damages, and the levy of the tax, the property owners were given an opportunity to pay in cash. Some of them availed themselves of this opportunity, but there remained to be raised by an issue of bonds the sum of $11,785. A contract was let for the work and an order was made by the county court for the execution, issuance and sale of the requisite bonds. One of such bonds was presented to respondent for registration which was refused.

It is conceded that the entire proceeding, from the filing in the county court of the petition for the incorporation of the drainage district to the presentation of one of its bonds for registration, was in every respect regular.

Respondent bases his refusal to register the bond tendered him for that purpose on these grounds:

(1) That neither Article IV of Chapter 28, Revised Statutes 1919, nor the Act of 1921 by which Section 4477 of said Article was attempted to be amended, contemplates or provides for the organization of a drainage district for the sole purpose of constructing retards in a navigable river to prevent bank erosion; (2) that if said Section 4477 be construed to authorize the construction of retards in navigable streams, then it is unconstitutional, because no such subject is embraced within the title of the amendatory act or that of the act amended; and (3) that as the Missouri River is a navigable stream neither the State of Missouri nor any public corporation of the State has power to construct retards or other obstructions in the bed of said river without a previous authorization thereto by Congress, which has never been given. Respondent further sets up in his return that "at the May Term of the Circuit Court of Saline County, Missouri, there was filed a suit entitled J.C. Frilley et al. v. Robert L. Hyatt et al., Justices of the County Court of Saline County and others, in which suit all of the issues presented in relator's petition and this return were raised and said suit was determined in favor of the defendants and an appeal to this court was granted to the plaintiff, and that therefore this proceeding will not lie because relator has, in said appealed case, an adequate remedy."

I. Section 4477, Revised Statutes 1919, as amended in 1921 (the italicized words being those added by the amendment) is as follows:

"When it shall be conducive to the public health, convenience or public welfare, or when it will be of public utility or benefit, the county court of any county in this State shall have the authority to organize, incorporate and establish drainage districts and to cause to be constructed, straightened, widened, altered or deepened, any ditch, drain, natural stream — not navigable, bank protection, current control, or watercourse, when the same is necessary to drain or protect any land of other property. The word ``ditch' as used in this article shall be held to include a drain, watercourse, bank protection, current control or levee or any drain, watercourse, bank protection, current control or levee hereafter constructed. The petition for any such improvement shall be held to include any side, lateral, spur, or branch, ditch, drain, watercourse or levee the lowering of any lake, the protection of the banks of an adjacent stream fromwash, cutting or erosion or any other work necessary to secure fully the object of the improvement, petitioned for, whether the same is mentioned in such petition or not. Provided: That in theevent any work is to be done upon any navigable stream, theconsent of the federal government shall be obtained to make suchimprovement or improvements before the actual work on theimprovement shall be begun."

It is the contention of respondent that this statute does not authorize the construction of "bank protection," except as an incident to drains, ditches and levees — the means ordinarily employed for the reclamation of wet or marshy lands:Retards in that it does not contemplate the organization ofNavigable drainage districts for the sole purpose of protectingRiver. the banks of a navigable stream from erosion. It cannot be supposed, of course, that the Legislature intended that "bank protection," if for the purpose of improving the navigability of such streams as the Missouri River, should be constructed and paid for by special assessments levied upon the lands bordering upon such streams. Such an enterprise would have none of the elements of a local improvement, but be wholly public in its nature. [People v. Economy Power Co., 241 Ill. 290.] Nor could it have been the legislative purpose merely to protect from erosion the lands fronting on such streams. An improvement made with that end in view would not be one conducive to the public welfare, but one for the sole benefit of the owners of the lands subject to erosion.

In the instant case it was alleged, and the county court found, that unless the river bank along the north side of the proposed district is protected from erosion, the whole district will presently be subject to overflow, and will be overflowed by the waters of the Missouri River. If the lands were now subject to overflow, there would be little doubt but that a drainage district organized under the statute under review could construct and install in the river such current retards as might be necessary to protect its levees. Respondent seems to concede as much. Must the land owners then wait until the natural barrier is gone and they have re-placed it with an artificial one before they can take steps to keep the waters off their lands by means of bank protection? Neither would it be contended that a district could not be organized under this statute for the sole purpose of constructing a levee if the lands within the confines of such district were now subject to overflow. Is it any less within the purview of the statute to preserve a high bank that performs all the functions of a levee?

The amendment of 1921 introduced into the statute the new element of "protection." Prior to the amendment its principal objective was to "drain" land; now it is to "drain or protect" land. Along with the word "protect" the words "bank protection, current control" were introduced. There must have been some connection between them in the legislative mind. The amendment was evidently intended, among other things, to bring into the statute a specific authorization to form drainage districts to "protect" land by "bank protection, current control." And the "bank protection" contemplated is not limited to non-navigable streams; otherwise, there would not have been added a proviso making the General Government's consent necessary when such work is to be done upon a navigable stream. The statute has been built up by repeated amendments. As a result it presents many crudities, but the legislative intent just referred to, as embodied in the amendment of 1921, we think clearly appears.

II. Respondent's next contention is that the Act of 1921, if it be construed to authorize the formation of drainage districts for the sole purpose of protecting river banks where their destruction by erosion would subject the adjacent landsTitle. to overflow, is to that extent unconstitutional, because no such provisions are embraced within the subject expressed in its title. The title is as follows:

"An Act to amend Section 4477 of Article IV of Chapter 28 of the Revised Statutes of Missouri, 1919, by inserting certain words, adding a proviso thereto, repealing all conflicting acts or parts of acts and with an emergency clause."

"The practice of amending statute laws by reference to the sections contained in the volumes of authorized revisions of the laws of this State is the established law." [Burge v. Railroad,244 Mo. 76, 87.]

"If the title of an original act is sufficient to embrace the provision contained in an amendatory act, it will be good, and it need not be inquired whether the title to the amendatory act would, of itself, be sufficient." [Brandon v. State, 16 Ind. 197; approved by this court in a number of cases, including State v. Doerring, 194 Mo. 398, 413.]

"The title of the original act" for the purpose in hand is the title of the act as it appears in the Revision of 1919. [State ex rel. v. Ranson, 73 Mo. 78, 88; Burge v. Railroad and State v. Doerring, supra.] Original Section 4477 and its cognate sections constitute Article IV of Chapter 28 of the Revised Statutes of Missouri, 1919. The title prefixed to that article is: "Construction and Improvement of Ditches, Watercourses and Levees, by County Court, Upon Petition of One or More Landowners." The question under consideration then resolves itself into this: Could the provisions of the Act of 1921 have been included in the original Article IV and the article then enacted under the title just quoted, without violating the constitutional requirement that "no bill . . . shall contain more than one subject, which shall be clearly expressed in its title?"

The constitutional requirement is not directed against the generality and comprehensiveness of titles. Not only may the subject, generally speaking, be as comprehensive as the legislative discretion may choose to make it, but the statute relating to it may include every matter germane to, and having a natural connection with, the general subject of the act. [O'Connor v. Transit Co., 198 Mo. 622, 639.] The language of the subject, "Construction and Improvement of Ditches, Watercourses and Levees," carries on its face a suggestion of measures having for their main objective the reclamation, and protection, of lands from the effects of water, by use of the instrumentalities named. One class of those instrumentalities is levees. And the subject, "Improvement . . . of Levees," clearly embraces provisions for the preservation of levees. The word "levee," as ordinarily used in drainage acts, means an artificial mound of earth intended exclusively as a protection from overflow. [Royse v. Railroad, 160 Ind. 592.] And a natural bank serving the same function, namely, that of protecting adjacent low lands from overflow, might well be held to be a levee within the purview of such acts, though there were no specific provision so designating it. Certainly it cannot be said that there is no natural connection or relation between the protection of such banks, in order to preserve them as barriers against overflow, and the protection of levees, or that provisions for such bank protection are not germane to the general subject of construction and improvement of levees. It cannot be held therefore that the provisions "for bank protection" in the statute under review are unconstitutional on the ground that they are not expressed in the title of the act. [State ex rel. v. County Court, 128 Mo. 427, 441.]

III. Respondent's next contention is that relator cannot install current retards along the river bank without an affirmative authorization so to do by Congress.Authorization But if so, Section 9903, Comp. Stat. U.S. 1918,by Congress. seems to confer the requisite authority. That section, so far as pertinent, is as follows:

"Any person or persons, corporations, municipal or private, who desire to improve any navigable river, or any part thereof, at their or its own expense and risk may do so upon the approval of the plans and specifications of said proposed improvement by the Secretary of War and Chief of Engineers of the Army."

It sufficiently appears from the record that the conditions prescribed in the section have been complied with, in that, "the plans and specifications of said proposed improvement" have been approved by the Secretary of War and Chief of Engineers of the Army, such approval having been given in the mode prescribed by the rules and regulations of the War Department. In fact, the current retards which the drainage district purposes to install are component parts of the entire improvement designed for the protection of the river bank along the north side of the district, and which is now being carried forward under the directions and supervision of the engineers of the War Department by the State Highway Commission and the Chicago Alton Railroad Company, and possibly by the United States itself. The contention of respondent under this head is disallowed.

IV. Respondent's final insistence is that this suit cannot be maintained because of the pendency of another and prior action involving the same issues. All that is disclosed by the record with respect to such action is contained in aMandamus. paragraph of respondent's return which we have quoted at length. From these meager allegations, which in so far as they are allegations of fact stand admitted on the pleadings, neither the nature of the action, nor its subject-matter, nor the interest of the parties to the record therein, can be determined. Before a prior suit can be held to bar, or stay, an action in mandamus it must at least be made to appear, not only that the parties are the same, but that adequate relief can be obtained in the proceeding first instituted. [State ex rel. v. Speer,284 Mo. 45, 53.] From aught that appears relator would still have to pursue the remedy it now invokes, in order to obtain relief, even if the issues involved in Frilley v. Hyatt, were all finally determined in accordance with the contentions it makes in that case. On the showing made, respondent's point cannot be sustained.

As all the conditions of the law with respect to the issuance of the bond presented to respondent for registration were complied with, it was his duty to register it.

Peremptory writ awarded. All concur, except White andWalker, JJ., absent.