Opinion
No. 42437.
January 14, 1952.
In 1949 the obligation of a drainage district to maintain and reconstruct bridges over its drainage districts was limited to 20 years. This did not impair the constitutional rights of the landowners. The 1949 amendment was not unconstitutionally retrospective and was effective as to plaintiff's pending cause of action.
1. CONSTITUTIONAL LAW: Bridges: Drains: Municipal Corporations: Contracts: Obligation to Reconstruct Bridge Limited to 20 Years: Charter of Drainage District Not Contract: Constitutional Rights of Landowners Not Impaired. The original drainage district law provided that bridges over drainage ditches should be constructed and maintained by the drainage district. In 1949 an amendment limited this obligation to 20 years. This was not an unconstitutional impairment of a contract, as the charter of the drainage district was not a contract with the landowners, but an exercise of the police power of the state.
2. CONSTITUTIONAL LAW: Statutes: Drains: Amendment Not Retrospective. The 1949 amendment of the drainage district statute was not unconstitutionally retrospective.
3. STATUTES: Drains: Amendment Effective as to Plaintiff's Cause of Action. The 1949 amendment of the drainage district statute was effective as to plaintiff's pending cause of action.
Appeal from Adair Circuit Court; Hon. Tom B. Brown, Judge.
AFFIRMED.
Arch B. Davis and Ronald L. Somerville for appellant.
(1) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the R.S. 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in violation of Article I, Section 10 of the Constitution of the United States. "No state shall . . .; pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts." When the defendant district was organized the subscribers to the articles incorporating said district obligated themselves to bear all expenses necessary to effect a plan of reclamation. Its contractual obligation was mandatory upon the subscribers and the ruling of the lower court impairs such contractual obligation. Sec. 4378, R.S. 1919 (law in effect on date when defendant district was incorporated). (2) Both the statutory and common law, at the time appellant's (plaintiff's) suit was filed imposed upon the defendant drainage district the duty and obligation of maintaining and reconstructing said bridge. Sec. 4406, R.S. 1919; Sec. 10773, R.S. 1929 (amended). Sec. 12354, R.S. 1939; State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343; State ex rel. Walker v. Big Medicine Drainage Dist., 355 Mo. 412, 196 S.W.2d 254; Richardson County v. Drainage Dist., 139 N.W. 648. (3) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in violation of the 14th Amendment of the United States. ". . . nor shall any state deprive any person of life, liberty, or property without due process of law." The appellant's (plaintiff's) cause of action filed on a date prior to the amendment was a vested cause of action which mere legislative fiat could not destroy and to hold that said amendment was applicable to plaintiff's cause of action was a deprivation of the property of the plaintiff without due process of law. 2 Am. Jur., Sec. 377, p. 1206; Ettor v. Tacoma, 228 U.S. 148, 57 L.Ed. 773; Pritchard v. Norton, 106 U.S. 124, 27 L.Ed. 104; Gibbes v. Zimmerman, 290 U.S. 326, 78 L.Ed. 342; Graham v. Goodcell, 282 U.S. 409, 75 L.Ed. 415; Forbes Pioneer Boat Line v. Everglades Drainage Dist., 258 U.S. 338, 66 L.Ed. 647. (4) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350, Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to time of said amendment, in that, construing said amendment to apply to appellant's (plaintiff's) original cause of action would make said amendment in violation of Article I, Section 13 of the Constitution of Missouri, 1945. "That no ex post facto law, or law impairing the obligation of contract or retrospective in its operation, or making any irrevocable grant or special privileges or immunities can be enacted." Said amendment, if held applicable, would impair the contractual obligation undertaken by the subscribers of the defendant district. Sec. 4406, R.S. 1919; Sec. 10773, R.S. 1929 (amended); Sec. 12354, R.S. 1939; State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343; State ex rel. Walker v. Big Medicine Drainage Dist., 355 Mo. 412, 196 S.W.2d 254; Richardson County v. Drainage Dist., 139 N.W. 648. (5) Said amendment if held applicable to appellant's original cause of action would be a law retrospective in its operation. State ex rel. Jones v. Nolte, 165 S.W.2d 632, 350 Mo. 271; Angle v. Chicago, St. P., M. O.R. Co., 151 U.S. 1, 38 L.Ed. 55; Drainage District v. Turney, 235 Mo. 80, 138 S.W. 12; Gladney v. Sydner, 172 Mo. 318, 72 S.W. 554; 12 C.J., sec. 778, p. 1084; Osborn v. Nicholsen, 80 U.S. 654, 20 L.Ed. 689; Williams v. Johnson, 30 Md. 500, Am. Dec. 613; Shea v. North-Butte Mining Co., 179 P. 499; Kentucky Home Life Ins. Co. v. Johnson, 93 S.W.2d 863; Terrill v. Rankin, 65 Ky. 453; United States v. Standard Oil Co. of Calif., 21 F. Supp. 645; Steele v. Gann, 123 S.W. 520; Hutton v. Autoridad Sabre Hogares De La Capital, 78 F. Supp. 988; Muir v. Louisville N.R. Co., 247 F. 888. (6) Said amendment makes an irrevocable grant of a special privilege and immunity to the individual property owners of the defendant district who by law were required to and did contractually obligate themselves to pay the expenses of making and maintaining the improvements necessary under the plan of reclamation adopted by said defendant district and approved by the Circuit Court of Grundy County, Missouri, when said district was formed. Sec. 4406, R.S. 1919; Sec. 10773, R.S. 1929 (amended). Sec. 12354, R.S. 1939; State ex rel. Ashby v. Medicine Creek Drainage District, 284 Mo. 636, 224 S.W. 343; State ex rel. Walker v. Big Medicine Drainage Dist., 355 Mo. 412, 196 S.W.2d 254; Richardson County v. Drainage Dist., 139 N.W. 648. (7) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in violation of Article III, Section 39, Sub-section 5, Constitution of Missouri, 1945. "The General Assembly shall have no power to release or extinguish or authorize the releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any corporation or individual, to this state, or to any county or other municipal corporation therein." To hold that said amendment was applicable to appellant's (plaintiff's) original cause of action was in effect allowing said amendment to act as a release or extinguishment of a liability or obligation owed by the defendant drainage district to Grundy County, Missouri. Since the obligation to build and maintain said bridge was one running both to the county and to a private individual who might be specifically injured thereby. State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343; New v. South Daviess County Drainage Dist., 220 S.W.2d 79; Graham Paper Co. v. Gehner, 59 S.W.2d 49, 332 Mo. 155. (8) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in violation of Article III, Section 40, Sub-section 28, Constitution of Missouri, 1945. Said provision prohibits the Legislature from — "granting to any corporation, association or individual any special or exclusive right, privilege or immunity." The lower court in construing said amendment to be applicable to appellant's (plaintiff's) original cause of action was in effect a declaration granting a special privilege and immunity to the defendant district and to the individual subscribers of the articles of said district because up to the time that said amendment was passed and at the time appellant's cause of action was filed it had always been the obligation of defendant district to build, maintain and reconstruct any bridges made necessary by the plan of reclamation. State ex rel. Ashby v. Medicine Creek Drainage Dist., 284 Mo. 636, 224 S.W. 343; State ex rel. Walker v. Big Medicine Drainage Dist., 355 Mo. 412, 196 S.W.2d 254. (9) The court erred in sustaining respondents (defendants) motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in violation of Article II, Section 1, Constitution of Missouri, 1945. "The powers of government shall be divided into three distinct departments — the legislative, executive, and judicial — each of which shall be confined to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments, shall exercise any power properly belonging to either of the others, except in the instance in this constitution expressly directed or permitted." The lower court in holding that made said amendment was applicable to appellant's (plaintiff's) original cause of action was in violation of the "separation of powers" clause of the Constitution of Missouri. Gaines v. Gaines, 48 Ky. 295; 12 C.J., sec. 310 (17) (a), p. 833; Frink v. Clark, 285 N.W. 681; Miller v. Johnson, 109 So. 715; Hedger v. Rennaker, 60 Ky. 257; McSurely v. McGrew, 118 N.W. 415. (10) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment because it was never the intent of the 65th General Assembly of Missouri that said bill should apply retrospectively to causes of action already accrued prior to the time of said amendment and because to apply said amendment to plaintiff's cause of action would be contrary to the settled rules of statutory construction obtaining in the State of Missouri, in that, such a construction would make said amendment a retrospective law. State ex rel. Scott v. Dircks, 111 S.W. 1, 211 Mo. 568; Minter v. The Bradstreet Co., 73 S.W. 668, 174 Mo. 444; Cranor v. School District, 52 S.W. 232, 151 Mo. 119; State ex rel. City of Moberly v. Ferguson, 62 Mo. 77; Jamison v. Zausch, 126 S.W. 1023, 227 Mo. 406; State ex rel. St. Joseph Lead Co. v. Jones, 192 S.W. 980, 270 Mo. 230; 19 C.J., sec. 9, p. 613; House Journal of the 65th General Assembly. (11) The court erred in sustaining respondents' (defendants') motion to dismiss on the premise that House Bill No. 283 (now Section 242.350 of the Revised Statutes of Missouri, 1949) was applicable to appellant's (plaintiff's) original cause of action which was filed prior to the time of said amendment, in that, applying said amendment to appellant's (plaintiff's) original cause of action was in direct conflict with Sections 658, 660 and 662 of the Revised Statutes of Missouri, 1939 (now Sections 1.150, 1.170 and 1.180, Revised Statutes of Missouri, 1949). Said statutory provisions have been the law in Missouri since 1835 and in effect have acquired the status of public policy. State v. Producers' Gravel Co., 111 S.W.2d 521; Petty v. Kansas City Pub. Serv. Co., 198 S.W.2d 684, 355 Mo. 824; State v. American Ins. Co., 200 S.W.2d 1, 355 Mo. 1053.
Thomas J. Layson, Jayne Jayne and W.C. Frank for respondents.
(1) The drainage district is a public corporation and an agency of the state and the act creating it, with its amendments, is an exercise of the state's police power. The charter of the public corporation does not constitute a contract with its members that the law it was created to administer will not be changed. The state is at liberty as to them and the corporation to continue its efforts to legislate in the interest of public welfare and prosperity. Mound City Land Stock Co. v. Miller, 170 Mo. 240; State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; Houck v. Little River Drainage Dist., 248 Mo. 373, affirmed in Houck v. Little River Drainage Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266; City of St. Louis v. Cavanaugh, 357 Mo. 204, 207 S.W.2d 449; Tranbarger v. Chicago Alton R. Co., 250 Mo. 46, 156 S.W. 694, affirmed 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204; Home Building Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L. R. 1481; East New York Saving Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69. (2) The state continues to possess the authority to legislate in the interest of the economic good and public welfare of the community and legislation appropriate to that end does not violate the contract clause of the Constitution of the United States, even though it has the result of impairing or abrogating contracts already in effect. Home Building Loan Assn. v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 88 A.L.R. 1481; East New York Saving Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69; Kansas City Bolt Nut Co. v. Kansas City P. L. Co., 275 Mo. 529, 204 S.W. 1074; Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 248 U.S. 372, 39 S.Ct. 117, 63 L.Ed. 309, 9 A.L.R. 1420. (3) As against the proper exercise of the police power the plaintiff has no vested rights, no contractual immunity by contract or otherwise. State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; Koshkonong Mud Creek Drainage Dist. v. Bodeman, 197 Wis. 261, 221 N.W. 864; Great Northern Ry. Co. v. Graff, 28 N.W.2d 77; State v. Day-Brite Lighting, Inc., 362 Mo. 299, 240 S.W.2d 886. (4) Factors for the amendment of legislation under the police power may be different from those for the passage of the original act, even though the amendment impairs or abrogates contracts between a public corporation and an individual or between individuals. East New York Saving Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69. (5) The amendment of the drainage act is not in violation of the Fourteenth Amendment of the Constitution of the United States as being a deprivation of plaintiff's property without due process of law. State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; State ex rel. Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W.2d 108; City of Clayton v. Nemours, 353 Mo. 61, 182 S.W.2d 57; Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151; Barnes v. Kansas City, 359 Mo. 519, 222 S.W.2d 756; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581. (6) The amendment does not bring about a taking of private property in a constitutional sense so as to require compensation. Any damage is consequential and damnum absque injuria. Max v. Barnard-Bolckow Drainage Dist., 326 Mo. 723, 32 S.W.2d 583; State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; 11 Am. Jur. (Constitutional Law), Sec. 261, pp. 995-998. State v. Day-Brite Lighting, Inc., 240 S.W.2d 886, syllabus 5. (7) The amendment does not impair the contractual obligation of Article I, Section 13 of the Constitution of Missouri of 1945. Curators of Central College v. Rose, 182 S.W.2d 145, appeal dismissed 323 U.S. 678, 65 S.Ct. 269; City of Cape Girardeau v. St. Louis-S.F. Ry. Co., 305 Mo. 590, 267 S.W. 601; State ex rel. Police Commissioners v. St. Louis County Court, 34 Mo. 546. (8) The amendment is not a retrospective law within the meaning of Article I, Section 13 of the Constitution of Missouri of 1945. State ex rel. Ross v. General American Life Ins. Co., 336 Mo. 829, 85 S.W.2d 68; State ex rel. Police Commissioners v. St. Louis County Court, 34 Mo. 546; State ex rel. McKittrick v. Bair, 333 Mo. 1, 63 S.W.2d 64; Pate v. Drainage Dist. No. 6 of Pemiscot County, 162 S.W.2d 88; United States v. Heinszen, 206 U.S. 370, 27 S.Ct. 742; State ex rel. Kemper v. St. Louis, Kansas City Northern Ry. Co., 79 Mo. 420, affirming and approving an opinion of the St. Louis Court of Appeals in 9 Mo. App. 532; State ex rel. McGee for Drainage Dist. v. Wilson, 358 Mo. 1244, 220 S.W.2d 6, certiorari denied 338 U.S. 885, 70 S.Ct. 188; Barnes v. Pikey, 269 Mo. 398, 190 S.W. 883; Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S.W. 12. (9) The prohibition against the passage of legislation conferring special privileges are those granted to private individuals, not to public governmental bodies. State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632; State ex rel. Police Commissioners v. St. Louis County Court, 34 Mo. 546. (10) The amendment does not violate Article III, Section 39, Sub-section 5 of the Constitution of Missouri, prohibiting the General Assembly from releasing the obligation of any corporation or individual to the state or county. State ex rel. Jones v. Chariton Drainage Dist., 252 Mo. 345, 158 S.W. 633. (11) The amendment does not violate Article III, Section 40, Sub-section 28 of the Missouri Constitution in the sense that the amendment grants to a corporation a special or exclusive right, privilege or immunity. State ex rel. Applegate v. Taylor, 224 Mo. 393; State ex rel. Kemper v. St. Louis, Kansas City Northern Ry. Co., 79 Mo. 420. (12) By the amendment the legislature does not usurp the authority or functions of the courts in violation of Article II, Section 1 of our Missouri Constitution. State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; State ex rel. McGee for Drainage Dist. v. Wilson, 358 Mo. 1244, 220 S.W.2d 6, certiorari denied 338 U.S. 885, 70 S.Ct. 188; State ex rel. Lucas v. Blair, 346 Mo. 1017, 144 S.W.2d 106; Birmingham Drainage Dist. v. Chicago, B. Q.R. Co., 274 Mo. 140, 202 S.W. 404. (13) The amendment operates retroactively as well as prospectively. Sec. 649, R.S. 1939, now Sec. 1.020(4), R.S. 1949; State ex rel. McKittrick v. Bair, 333 Mo. 1, 63 S.W.2d 64; State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 129 S.W. 990. (14) Sections 658, 660 and 662 of the Revised Statutes of Missouri, 1939, now Sections 1.150, 1.170 and 1.180 of the Revised Statutes of Missouri, 1949, are general statutes construed as saving clauses to preserve vested rights, and do not operate so as to allow one to commence an action and thereby deprive the government of its authority to enact laws dealing with governmental agencies. State ex rel. McKittrick v. Bair. 333 Mo. 1, 63 S.W.2d 64; State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 190 S.W. 990; United States v. Heinszen, 206 U.S. 370, 27 S.Ct. 742; Taylor v. Strayer, 167 Ind. 23, 78 N.E. 236, 119 Am. St. Rep. 469. (15) The 1949 amendment of the drainage act is a proper exercise of the police power and it carries the presumption of constitutionality. State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988; Koshkonong Mud Creek Drainage Dist. v. Bodeman, 197 Wis. 261, 221 N.W. 864; Great Northern Ry. Co. v. Graff, 28 N.W.2d 77; Bowman v. Kansas City, 233 S.W.2d 26; Poole Creber Market Co. v. Breshears, 343 Mo. 1143, 125 S.W.2d 23; State v. Day-Brite Lighting, Inc., 240 S.W.2d 886; American Federation of Labor v. American Sash Door Co., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. l.c. 226; Lincoln Federal Labor Union v. Northwestern Iron Steel Co., 335 U.S. 525, 69 S.Ct. 251.
This suit was brought by the plaintiff-appellant farm owner, a corporation, for a mandatory injunction to compel the defendant-respondent supervisors of Brimson Drainage District of Grundy and Harrison Counties to construct a bridge across its drainage ditch on a public road which bisects appellant's farm in Grundy County, and furnishes the most accessible and reasonable outlet therefrom. The Drainage District, which was organized by the circuit court in November, 1920, had constructed a bridge at that place in 1924, and thereafter maintained it under the statutes then in force, Sec's 4402, 4406, R.S. 1919. But over twenty years later it collapsed and fell into the ditch in 1945.
In the meantime the drainage statutes had been changed. They were, in fact, while the present suit was pending. And the circuit court of Adair County, on change of venue, taking the view that the later statutes were controlling, sustained the defendant-respondent supervisors' motion to dismiss the plaintiff-appellant's petition on the ground that it failed to state facts upon which relief could be granted. The plaintiff-appellant contends its rights are founded on the law as it stood when it was organized or at least when its petition in this case was filed: and that at that time the board of supervisors were dutybound to reconstruct the bridge. Hence it asserts the trial court's ruling was unconstitutional as being ex post facto, violative of the obligation of contracts, retrospective in operation, a grant of special privilege, and legislative in character, citing: Art. I, Sec. 10, Const. U.S.; and Art. I, Sec. 13, Art. II, Sec. 1, Art. III, Sec's 39(5) and 40(28), Const. Mo. 1945, and Sec's 1.150, 1.170 and 1.180, R.S. 1949.
The facts are confusing and a rather detailed statement of them seems necessary. The drainage district was organized in 1920. At that time Sec. 4406, R.S. 1919 required any corporation to construct at its own expense any drainage district bridge contemplated by the plan for reclamation and needed over a public highway or right of way of the corporation. And the same is still true now under Sec. 242.350(2), R.S. 1949. Whether appellant, a corporation, owned the land in 1920 the record does not show. As to other landowners the then statute, Sec. 4406, provided, as it still does, Sec. 242.350(4):
"All drainage districts shall have full authority to construct and maintain any ditch or lateral provided in its `plan for reclamation,' across any of the public highways of this state, without proceedings for the condemnation of the same, or being liable for damages therefor. Within ten days after a [77] dredge boat or any other excavating machine shall have completed a ditch across any public highway, *a bridge shall be constructed and maintained over such drainage ditch where the same crosses such highway: * * *." [Asterisk ours]
This Section 4406 was repealed and re-enacted by Laws Mo. 1929, pp. 183-4, with a change beginning at the point marked above with an asterisk, and made to read: "a bridge adjudged sufficient by the county court of said county or counties shall be constructed over such drainage ditch where the same crosses such highway, and after such bridge has been constructed it shall become a part of the road over which it is constructed and shall be maintained by the authority authorized by law to maintain the road of which it becomes a part.* If said bridge has been constructed by the drainage district and has become a part of said road and is then destroyed the authorities having control of the road are authorized, if they desire, to reconstruct such bridge * * *." Emphasis and asterisk ours]
This 1929 Act was carried forward verbatim in toto as Sec. 12354, R.S. 1939, but the statute was amended by Laws Mo. 1949, p. 260-1, now Sec. 242.350(5), R.S. 1949 at the point marked with an asterisk above, by the insertion of the following sentence: "When any drainage district has heretofore constructed or shall hereafter construct a bridge over a drainage ditch where the same crosses any public highway, said drainage district shall not be under obligation thereafter to further maintain or reconstruct any such bridge or bridges for more than twenty years after it first constructed or constructs such bridge at said place." Following that is the foregoing provision taken from the 1929 Act, that when a bridge has been destroyed the authorities having control of the road are authorized, if they desire, to reconstruct it.
As the foregoing statutes plainly show, when the respondent drainage district was organized in 1920 it was authorized by Sec. 4406, R.S. 1919 to construct and maintain highway bridges across its drainage ditches except when the abutting land was owned by a corporation, in which event the latter was required to build the bridge or bear the cost of construction. It was held in three cases decided in 1913-1917 and cited by appellant, that the cost of building all bridges across the ditches [except for private corporations] should be paid by the county. This view was based on the theory that counties were public corporations, and that the statute said "corporations" should build or pay for their own bridges.
State ex rel. Jones v. Chariton Drainage Dist., 252 Mo. 345, 362(4). 158 S.W. 633, 638 (1); State ex rel. McWilliams v. Little River Drainage Dist., 269 Mo. 444, 459(8), 190 S.W. 897, 901(9); State ex rel. Caruthers v. Little River Drainage Dist., 271 Mo. 429, 437(4), 196 S.W. 1115, 1118(7).
But in all three of those cases the drainage districts had been organized under the drainage district law as it stood in 1909 or earlier. And Sec. 30, Laws Mo. 1913, pages 250-1 [the precursor of Sec. 4406, R.S. 1919, supra] changed the prior statute law imposing the burden of building bridges on counties, and placed it on the drainage district. The change was effected by adding a proviso at the end of the section declaring "the word corporation as used in this section shall not apply to counties." This sentence was again changed in Sec. 4406, Laws Mo. 1929, p. 184, to read: "Provided, however, the word corporation as used in this section shall not apply to the state or any political or civil subdivision thereof," and has ever since so provided. This change and the foregoing decisions have been discussed in six later cases.
State ex rel. Ashby v. Medicine Creek Drainage District, 284 Mo. 636, 647-9(2), 224 S.W. 343, 344(2); State ex rel. Kinder v. Inter-River Drainage District, 296 Mo. 320, 327-9 (1, 2), 246 S.W. 282, 284 (1, 2); State ex rel. Chamberlin v. Grand River Drainage District. 311 Mo. 309. 330. 278 S.W. 388, 394; Graves v. Little Tarkio Drainage District, 345 Mo. 557, 571(7), 134 S.W.2d 70, 79(17): State ex rel. St. Louis County v. St. Johns-Overland Sanitary Sewer District, 353 Mo. 974, 978(1), 185 S.W.2d 780, 782(1); State ex rel. Walker v. Big Medicine Drainage District, 355 Mo. 412, 418(1), 196 S.W.2d 254, 255-6.
Of the first three comparatively contemporaneous decisions the Ashby case, decided [78] in 1920, held a drainage district organized under the 1913 Act was required to build the bridges over its own ditches, and the county was not. In the Kinder case the drainage district had been organized under the 1909 and 1911 drainage law two months before the enactment of the 1913 law, and the decision held the financial burden of building the bridges rested on the county. In the Chamberlin case the organization of a drainage district had been partially effected under the 1909 and 1911 drainage laws, but the cause was still pending in the circuit court when the 1913 act was passed. The petitioners sought by amendment to finish the organization of the district under that new law, without completely organizing or reorganizing thereunder. But the decision held the district (not the county) nevertheless must build the highway bridges over its ditches. These three decisions are followed in the last three cited below.fn2
The law on the point that the drainage district must build the highway bridges over its ditches has been settled in those cases. The question for decision here is whether it still applies, notwithstanding the 1919 statute, Sec. 4406, in force when the instant district was organized, has been amended by Sec. 242.350(5), R.S. 1949 by the insertion of a provision that the drainage district shall not be required "to further maintain or reconstruct any such bridge or bridges for more than twenty years after it first constructed or constructs such bridge at said place." Then the statute goes on to say, as it has ever since 1929, that if the bridge destroyed had been constructed by the drainage district and had become a part of the road, the authorities having control of the road may reconstruct the bridge if they desire.
Plaintiff-appellant contends the 1949 amendment, limiting the obligation of the drainage district to maintain or reconstruct highway bridges over its ditches to twenty years after their original construction, is unconstitutional under both the Federal and State Constitutions, because it is ex post facto, violative of the obligation of a contract, retrospective in operation, a grant of special privilege to the drainage district, and legislative in character.
Appellant's basic theory is this. It asserts that when the owners of a majority acreage of overflow lands in the district signed the articles of association and the circuit court chartered the district as a public corporation in 1920, pursuant to Sec's 4378 and 4380, R.S. 1919, the charter became and was a contract between the parties. And it further asserts that contract mutually obligated the subscribing landowners to pay the taxes assessed against their lands, on the one hand, and the district to make and maintain the contemplated improvements on the other. These improvements included highway bridges across the ditches, except those belonging to, or needed over a public highway or right of way of, a corporation. Sec's. 4402, 4406, R.S. 1919.
Starting with this premise appellant maintains that the amendment of the former Sec. 4406, R.S. 1919, later Sec. 12354, R.S. 1939, by Laws Mo. 1949, p. 260, now Sec. 242.350(5), R.S. 1949, limiting the obligation of a drainage district to maintain or reconstruct a highway bridge over a drainage ditch to twenty years after its original construction, is unconstitutional and void under the several sections of the Federal and State Constitutions heretofore cited. But the real underlying contention of appellant as to all these constitutional provisions is that the original charter of the district, granted in 1920 was an abiding contract with the individual subscribing members of the district, and not merely a grant [79] by the sovereign State of rights, franchises and powers to the district as a public corporation subject to subsequent regulation by the State through its Legislature.
As Sec. 4380, R.S. 1919 declared it to be.
In support of its contentions on the various constitutional questions raised by it, appellant has cited State ex rel. Ashby v. Medicine Creek Drainage District, supra,fn2 five times, and State ex rel. Walker v. Big Medicine Drainage District, supra,fn2 four times. But in each of those two cases only one constitutional question, or set of questions, was suggested or raised, and neither case decided it. Some Federal decisions and cases from other states also are cited. But they deal mainly with general principles of constitutional law and we do not discuss them since the instant case turns on our statutes.
Respondents rely on a number of Missouri cases, part of which are cited below. The Becker case dealt with a sewer district which had been in process of organization for four years under Laws Mo. 1927, p. 439, when all the statutes therein were repealed by Laws Mo. 1931, p. 355, with a saving clause permitting it to continue in existence until its outstanding debts had been paid. Certain landowners therein brought mandamus to compel the supervisors to proceed with the organization on the theory that it had proceeded so far that they had acquired vested rights therein.
State ex rel. Becker v. Wellston Sewer Dist., 332 Mo. 547, 559-66 (1-8), 58 S.W.2d 988-994 (1-8); Hill-Behan Lbr. Co. v. Skrainka Const. Co., 341 Mo. 156, 160(1), 106 S.W.2d 483, 485(1); Gideon-Anderson Lbr. Co. v. Hayes, 348 Mo. 1085, 1088-9(1), 156 S.W.2d 898, 899(3); City of Clayton v. Nemours, 353 Mo. 61, 66(3), 182 S.W.2d 57, 59 (4-6); City of St. Louis v. Cavanaugh, 357 Mo. 204, 213(3), 207 S.W.2d 449, 454 (2, 3).
This court ruled to the contrary, holding the grant to the district of the right to organize was an exercise of police power delegated by the State, which the latter had the right to revoke in toto; and that the damage to the landowners was wholly consequential, excepting only that resulting from the actual taking of their lands, and that occasioned to the remainder by the taking of a part thereof. In this connection the decision held the exercise of the State's police power extended to the relators use and enjoyment of their lands without the allowance of damages therefor. On that point the decision cited a number of drainage district cases. We think this doctrine is well established in Missouri and shall not extend the opinion by discussing the other decisions cited supra.fn4
Another assignment made by appellant is that its original petition in this case was filed before the twenty year reconstruction amendment of Sec. 242.350(5) here involved was enacted and became effective. Hence it contends the amendment was retroactive as against its cause of action, and void under Art. III, Sec's 39(5) and 40(28), Const. Mo. 1945. The first of these sections provides the General Assembly shall not have power to release or extinguish without consideration the liability or obligation of any corporation due this state or any county or municipal corporation. The second declares the General Assembly shall not have power to grant to any corporation any special right, privilege or immunity.
The facts here are as follows. The Bill for the foregoing amendment to Sec. 242.350(5) was introduced in the House of Representatives on April 14, 1949. Appellant's original petition in this case was filed in the circuit court over two months later on June 17, 1949, while the legislation was pending. However the Bill carried no emergency clause and upon passage did not become effective until October 14, 1949, nearly four months after appellant's original petition had been filed. But that petition is not brought up in the transcript, and there is nothing to show it raised a constitutional question. Hence it cannot be determined whether any such question was raised therein. The amended petition raising the constitutional questions was not filed until February 21, 1950, over two months after the amendment had become effective. We think there is no substance [80] in this contention, which apparently is procedural in nature.
But even if we be wrong in that, we are still of the opinion that the contention is open to question. For ever since the 1929 Act, supra, the statute has provided that a bridge which has become a part of the road shall be maintained by the authorities authorized to maintain the road; and if such bridge has been destroyed they are authorized to reconstruct it if they desire. Whether this means that if the road authorities do not desire to reconstruct the bridge it shall remain unbuilt, or that in such event the district shall build it, we are not called upon to decide. Perhaps the 1949 amendment of the statute was passed to clarify the statute, and to place the alternative liability on the drainage district for twenty years after the bridge was first constructed. But if so, that time has passed in this case.
Finally appellant contends that since its original petition was filed before the 1949 amendment took effect, the latter is not applicable to this case under Sec's. 1.150, 1.170 and 1.180, R.S. 1949. All of these sections merely contain general provisions for the construction and application of statutes which have been repealed. But Laws Mo. 1949, p. 260 did not repeal Sec. 12354, R.S. 1939, now Sec. 242,350, R.S. 1949. Expressly it merely amended it by inserting the provision limiting the liability of the drainage district to maintain or reconstruct bridges over its ditches to twenty years after their original construction.
There is another question in the case which we do not decide because it is not raised. The appellant is a private corporation, and the statute has provided, ever since the drainage district was organized in 1920, that corporations must build their own bridges over drainage ditches.
In our opinion the foregoing amendment appearing in Sec. 242.350(5), R.S. 1949 is constitutional. The judgment below is affirmed. All concur.