267 P. 31 | Kan. | 1928
The opinion of the court was delivered by
This is an original proceeding in quo warranto by the state, on the relation of the county attorney, inquiring by what authority the defendant drainage district has engaged in the business of conducting a sand plant for profit, and for a declaratory judgment construing certain state statutes, and particularly R. S. 24-408. The petition alleges that defendant was organized under chapter 215 of the Laws of 1905 (R. S. 24-401 et seq.); that defendant and its directors are making arrangements to engage in the private business, to wit, the taking of sand from the Kansas river and preparing the same for market, and to market the same at wholesale or retail, and for such purpose have purchased a tract of ground, paying for the same the sum of about $8,000, and have erected a tipple and other equipment for the preparation of sand for the general market, and a crane for loading trucks, and are arranging for the construction of railroad tracks to reach the sand plant, and are intending to use the dredge boat belonging to the drainage district, which was purchased for the purpose of dredging the river and keeping the channel clear of obstructions to pump sand for the
At the first regular session after the disastrous floods, especially in the Kansas river valley, of 1903, our legislature enacted a comprehensive statute (Laws 1905, ch. 215), for the creation of drainage districts. The general purposes to be accomplished are well stated in the title of the act as follows:
“An Act in relation to natural watercourses, providing for the protection, control, deepening, widening, removing obstructions from, changing, regulating, establishing and maintaining the channels thereof; the construction, maintenance and repair of levees along the same to prevent overflow and the raising or elevation of railroad tracks and public highways that interfere with the construction and maintenance of such levees; the construction and regulation of drains and other works conducive to the public health, convenience and welfare in districts subject to overflow; and to these ends providing for and authorizing the organization of public corporations to be known as drainage districts, and prescribing the duties and defining the powers of such public corporations.”
The act provides, among other things:
“That each drainage district incorporated under the provisions of this act shall be a body politic and corporate, and (subject to the superior jurisdiction of the United States over navigable waters) is hereby granted exclusive control of the beds, channels, banks and of all lands the title to which is vested in the state of Kansas lying between the banks at high-water mark of all natural watercourses within such district.” (R. S. 24-407.)
And the drainage district was given power—
“Fourth. To take charge of and exercise exclusive control over all natural watercourses within its territorial limits and to so widen, deepen, establish, regulate and maintain the channels thereof, and to construct and maintain such levees along the banks thereof as may be deemed necessary or proper to prevent or restrain overflow or lessen the volume thereof or the injury deemed likely to result therefrom; also to make and maintain such ditches, drains, sewers and canals through lands subject to overflow as may be deemed necessary to carry off and prevent water from standing or remaining in pools or ponds and becoming stagnant upon overflowed lands, or as may be deemed necessary for sanitary purposes or conducive to the public health, convenience, and welfare; also to alter, change or abandon the channel or any part of the channel of any natural watercourse and relocate or excavate and establish a new channel for such watercourse or any part thereof situated within the*47 district, and to these ends may take private property for public use by exercise of the right of eminent domain in the manner hereinafter provided; and may condemn and cause obstructions in such watercourses to be removed; and may acquire by gift, purchase or condemnation such lands for the purpose of constructing levees along or widening, deepening, changing or otherwise improving the channels of such watercourses or for relocating, excavating and establishing new channels or constructing cut-offs, as may be deemed necessary.” (R. S. 24-407.)
Other specific powers, in harmony with those in the provision quoted, were specifically granted. To pay the expense of all of this the district was given power (1) to levy an annual tax on the property in the district to create a general fund, (2) to levy special assessments on property specifically benefited, to defray the cost of construction and maintenance of levees or other works, and (3) to issue bonds to pay the costs of widening, deepening or otherwise improving the channels and constructing embankments, drains, levees and other works.
The defendant drainage district was organized under this act. The Kansas river, from its junction with the Missouri, west for several miles, is within the district. It has built levees and performed other duties authorized by the act, as stated generally in its anwser. A drainage district so created is a quasi municipal corporation, an arm of the state, created by the legislature to perform a function of government, namely, to provide a drainage system for the district. See Roby v. Drainage District, 77 Kan. 754, 95 Pac. 399; Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54; State, ex rel., v. Drainage District, 102 Kan. 575, 171 Pac. 634; Euler v. Rossville Drainage District, 118 Kan. 363, 235 Pac. 95; State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372.
In 1913 our legislature enacted what is commonly known as the sand and gravel act (Laws 1913, ch. 259) in which the state was declared to be the owner of any sand, oil, gas, gravel or other mineral, in the bed of any navigable stream in the state; and made it unlawful for any person, firm or corporation to take any part of it therefrom, without obtaining consent of the executive council, and upon such terms as it deemed just, the compensation therefor to be paid to the state. The act did not prevent the taking without payment of sand or gravel to be used exclusively for public highways, public buildings or other public use, or by the person taking the same for his own domestic use, and provided that if the taking was from a drainage district, organized under chapter 215
In 1917 our legislature passed an act in relation to drainage districts organized under chapter 215 of the Laws of 1905, and delegating to such district certain powers, as follows:
“All drainage districts incorporated under the provisions of chapter 215 of the Session Laws of 1905, shall have power: First, to take from any navigable river within their corporate limits, sand, gravel, rock, or other minerals, without the payment to the state of any compensation therefor, and sell the same and use the proceeds in the construction or maintenance of levees, or river walls, or for dredging, or other improvements authorized to be made or maintained by such districts. Second, to construct and maintain streets upon, along, adjoining or over any river wall, dike or levee, and approaches thereto from adjacent or intersecting streets, and to contract with any city or other municipal corporation in which the same may be situated, or with any private corporation or person, for the making of such improvements, or for the payment of a portion of the cost thereof, and to levy taxes and issue bonds, in accordance with and subject to the provisions of chapter 215 of the Session Laws of 1905, and acts amendatory thereof, to pay the cost of such improvements. Third, to contract or otherwise cooperate with any city or other municipal corporation in which the same may be situated, or with any corporation or person, for the construction and maintenance of sewers, drains, or ditches for the drainage of any drainage district or portion thereof, or to prevent the same from being overflowed by surface water from adjoining lands, and to levy taxes and issue bonds in accordance with and subject to the provisions of chapter 215 of the Session Laws of 1905, and acts amendatory thereof, to pay for the cost of such improvements.” (R. S. 24-408.)
Defendant concedes in its brief that prior to the enactment of the statute last quoted it had no power to go into the business of operating a commercial sand plant for profit, but contends that this statute granted a new plenary power in that respect; that it was intended by this statute to provide funds for improvements and maintenance of improvements without taxation, by a new method; that the purpose of the act is to confer the general power to take and sell sand, by such method and under such circumstances as the board of directors of the district deem advisable, and, presumably, in such quantities and for such price and on such terms as the directors deem prudent.
“It has been the policy of our government to exalt the individual rather than the state, and this has contributed more largely to our rapid national development than any other single cause. Our constitution was framed, and our laws enacted, with the idea of protecting, encouraging and developing individual enterprise, and if we now intend to reverse this policy, and to enter the state as a competitor against the individual in all lines of trade and commerce, we must amend our constitution and adopt an entirely different system of government.”
See, also, National Bank v. City of Iola, 9 Kan. 689; State, ex rel., v. Osawkee Township, 14 Kan. 418; McConnell v. Hamm, 16 Kan. 228; City of Geneseo v. Gas Co., 55 Kan. 358, 40 Pac. 655; State v. Lawrence, 79 Kan. 234, 100 Pac. 485; and Savings and Loan Assoc. v. Topeka, 20 Wall (U. S.) 655; and Com. Nat. Bank of Cleveland v. Iola City, 22 L. Ed. 463, construing Kansas statutes.
The question before us is to determine whether the legislature, by enacting the statute last quoted, intended to make a complete change of its policy in this respect (if indeed it had constitutional authority to make such a change), and to confer on drainage districts full authority to engage in'what has always been regarded, and in fact is, a purely commercial enterprise, even though the language used, broadly interpreted, might be so construed. Our answer must be in the negative.
Unless a contrary intent clearly appears, statutes are presumed to have been enacted with the view that they will be interpreted, .not only in accordance with the constitution of the state, but in accordance with a definitely known public state policy. So viewed the broad language of the statute is greatly restricted.
The statute in question refers to the statute authorizing the creation of drainage districts (Laws 1905, ch. 215; R. S. 24-404 et seq.), and must be construed in accordance with the general purpose of . that act. That purpose has been heretofore defined by this court. The act authorizes the creation of drainage districts for the purpose of carrying out a governmental function; namely, the drainage of overflow land. (Railway Co. v. Montgomery County, 93 Kan. 319, 144 Pac. 209; Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937; Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096),
Construing the statutes heretofore cited, as above indicated, it seems clear that the statutes of 1917 simply authorize the drainage district to sell such sand, gravel, etc., as might be produced in performing the functions for which it was created, without paying any of the royalty provided by the sand and gravel act, and this without respect to whether it was sold for the building of roads or other governmental purposes.
But defendants contend that if the statute be so interpreted, then it is really useless for the reason that sand taken in the ordinary dredging of the river, removing sand bars and the like, is not in condition to be sold until it is washed, cleaned and graded, and that these operations require a sand plant. It is much better that the statute be so construed as to have no useful purpose than to construe it so as to create a power directly opposed to our definite state policy, as provided in our constitution and elsewhere, that the state, or its municipal subdivisions, shall not engage in purely commercial enterprises.
The conclusion we have reached makes it unnecessary to discuss at length any other question argued. It necessarily follows that defendants have no authority to use money raised by taxation for the purchase of land and equipment, and employing men to conduct a sand plant as a purely commercial enterprise.
Judgment will be entered for plaintiff.