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In view of the foregoing, I feel warranted in saying that the board of directors of the St. Francis Drainage District is empowered to contract to furnish such right-of-way as may be required by the Federal Government, or one of its agencies, for the purpose of repairing old or building new levees required to protect the district and its lands as against overflow, and to further contract to indemnify the Government as against liability to landowners for damages that may be incurred in connection with the prosecution of the work.
I may add that the general assembly of the State of Arkansas convenes for a 60-day session on next Monday, January 14. If there be any doubt about the existence of the power concerning which inquiry is sought, and as to which I have given my impressions herein, I have no doubt that the general assembly would readily pass the necessary legislation to confirm such power and obviate any doubt that might exist. As a citizen of Greene County peculiarly familiar with the problems confronting this particular district, I feel safe in asserting that Governor Futrell would lend every aid to procure the prompt passage of such legislation as the Federal authorities might ask for to make the assurance doubly sure as to the powers herein discussed. Respectfully submitted.
WM. F. KIRCH, Attorney for Board of Directors of St. Francis Drainage District.
To: Hon. C. H. Robards, Hon. C. E. Garrison, and Hon. N. J. Wagster, judges
of the county court of Dunklin County, Mo., and to G. F. Holigan, J. D. Grady, and D. R. Donaldson, board of directors of levee district no. 4 of Dunklin County, Mo.
GENTLEMEN : Pursuant to your request, I herewith submit to you an opinion relative to certain authority of drainage and levee districts in Missouri.
CONSTITUTIONAL AUTHORITY OF LEVEE AND DRAINAGE DISTRICTS IN THE STATE OF
The Constitution of Missouri is held to be one placing a limitation of power and not a grant of power. The Supreme Court of the State of Missouri holds valid all laws not prohibited by its constitution insofar as State laws are applicable.
There is no limitation upon the power of drainage and levee districts under the Missouri Constitution, except what is contained in section 21 article II, as to compensation for private property taken or damaged for a public use.
With reference to the constitutional provision above referred to, our supreme court adheres to the rule that drainage and levee districts in Missouri are political subdivisions of the State, to be classed with counties, road districts, and school districts, and the private benefits accruing to the individual landowners are regarded as incidental. The exercise of authority under drainage and levee acts in Missouri is held to be an exercise of the police power and for a public use.
In a case involving damage to land lying outside of the district and no part of which was actually taken or appropriated to the use of the district, our supreme court, in the case of Anderson v. Inter-River Drainage and Levee District (309 Mo. 189, 274 S. W. 448), holds that the construction of a levee to prevent overflow of water, even though it result in greater overflow on other lands not in the levee district in time of flood, is a legitimate exercise of police power, and the injury resulting therefrom is not a “ damage” sustained within the meaning of the Constitution of Missouri, and liability for damages was denied. This case is particularly in point because it grew out of the construction of a levee along the St. Francis River in Missouri, and this case has never been overruled and is supported by other decisions in our State.
Therefore, under the law of Missouri, owners of lands lying outside a drainage or levee district, and where no part of such lands are taken or appropriated by the district, cannot recover for damages to their lands by the construction of the drainage or levee improvements and are not within the purview of our constitution, which requires payment for lands actually taken or damaged for rights-of-way or other uses.
Our Supreme Court has also held that owners of land lying within the boundaries of levee or drainage districts cannot recover damages against the drainage or levee district for the construction of the drainage or levee improvement.
The case of State ex rel. Hausgen v. Allen (298 Mo. 448, 250 S. W. 905) is one of the cases in the State of Missouri sustaining this position. And this rule of law is applicable whether the district constructs its improvements with or without negligence.
It will be thus seen that under the law of Missouri the construction of an improvement such as contemplated along the St. Francis River in Missouri would furnish no right of action for damages against the district to owners of lands lying outside the district and where no part of such lands were actually taken or appropriated to the use of the district. Further, no right of action for damages is given to owners of lands where the lands involved in the suit for damages are within the district.
Of course, what has been said does not apply to damages for the land actually taken for rights-of-way or appropriated for other uses of the district. This land would have to be paid for, and the method of acquiring this land and payment therefor will be hereafter discussed under the statutory authority of drainage and levee districts ; nor does it apply in suits for damages to lands either within or without the district where the damages sought are for injury to lands owned by one who also owns a contiguous tract or part of lands which are actually taken or appropriated by the district.
A case in Missouri involving this distinction is the case of Inter-River Drainage District v. Ham (275 Mo. 384). This case is one where the owner sought damages to a portion of his tract not actually taken for right-of-way but where a portion of the owner's land contiguous thereto was actually taken for right-of-way. In this case our Supreme Court held liability existed and distinguishes this character of cases from the character of cases where the damages sought are to lands either within or without the drainage district and where no portion of the owner's lands are actually taken or appropriated to the use of the district.
It might not be amiss to here state that none of the constitutional provisions in Missouri relative to taxes, valuation, etc., are applicable to a drainage and levee district. This because our supreme court holds that assessments for drainage and levee improvements are not taxes within the provisions of the constitution of Missouri, and are not controlled thereby.
(See the long line of cases cited under sec. 3, art, X, of Missouri Constitution in support of the above statement.)
It may be fairly stated from an examination of the law of the State of Missouri that the only constitutional limitation on drainage and levee districts is the one requiring payment for property actually taken for rights-of-way and such property as is appropriated by the district. Outside of this limitation, it would appear that the drainage and levee districts in Missouri are unrestricted insofar as their constitutional authority is concerned.
STATUTORY AUTHORITY (Drainage District No. 25 of Dunklin County, Mo.) Drainage District No. 25 of Dunklin County, Mo., was constructed under the provisions of the County Court drainage law and which is found in article 2, chapter 64 of the Revised Statutes of the State of Missouri for the year 1929, and beginning with section 10809 of such revision.
It will be noted that section 10822 (all references to sections herein are to Revised Statutes of Missouri for the year 1929) gives to the county court the right to condemn for the use of the district any necessary land or other property, even though same was not acquired or condemned by the court in the original organization of the district. This gives the county court, who is by law the board of control of drainage districts organized under this law, the power of condemnation.
It will be noted that section 10822 provides that in condemnation the same proceedings shall be had as now provided by law for the appropriation of land or other property taken for telegraph, telephone, and railroad rights-of-way. This procedure referred to will be found embraced in sections 1340, 1341, 1342, 1343, and 1344. This procedure, in substance, permits one suit to condemn and the appointment of three commissioners, and any appeals do not delay the work but are by statute made only to affect the amount of damages.
By section 10843, the county courts have continuous control of the drainage district and are authorized to maintain, restore, repair, and strengthen the ditches, drains or levees.
Section 10844 provides statutory authority for the levying of an annual maintenance tax, and where such tax is insufficient, sections 10845 and 10846 provide the machinery for raising the additional money necessary. These sections also embrace and contemplate any new work necessary to be done.
Section 10824 gives express authority to levy a tax against the lands in the district to pay off any judgments against the district.
Section 11023 is a general law applicable to all drainage and levee districts and gives express authority to the boards of all drainage and levee districts in the State to perform every act necessary to comply with or avail themselves of Federal legislation that will have for its purpose lightening the burdens of taxation resting on the lands and property in such districts.
A reading of the drainage law under which Drainage District No. 25 was organized will leave no doubt, in my opinion, that sufficient and ample authority is given to Drainage District No. 25 to acquire rights-of-way and other property necessary for the use of the district, and authorizes providing for a fund to pay therefor. Provision is also made to pay any judgments for damages that might be rendered against the district, if any such damages be adjudged up to the amount of the benefits assessed.
(Levee District No. 4 of Dunklin County, Missouri) Levee District No. 4 of Dunklin County, Mo., was organized under article 7, chapter 64 of Revised Statutes of Missouri for the year 1929, and beginning with section 10958.
Section 10970 gives the board of directors power to determine the necessary work, etc. The power to assess the lands for the work and the method of assessment is contained in section 10971.
Section 10980 gives the right of eminent domain and condemnation to secure rights-of-way, and the power of condemnation is exercised in the same manner as hereinbefore referred to, as applicable to Drainage District No. 25.
Section 10985 places the supervision of the work under the Board of Directore and gives them the right to appoint or select engineers and agents for the performance of the work.
Section 10986 grants specific authority to cooperate with the Mississippi River Commission created by act of Congress, or any other agency of the United States Government, for the purpose of securing construction, repair and maintenance of the levees within the levee district. In addition to the specific provisions made in section 10986, the general law contained in section 11023 is also applicable to Levee District No. 4, and which has been heretofore referred to as applicable to Drainage District No. 25.
Section 10989 expressly grants authority in case of an emergency, or in any other case, for the Board of Levee Directors to change the location of the levee, or at any time extend the same, etc.
In this connection, section 11005 also gives authority to extend a levee or enlarge any levee district, and provides a method of procedure, guaranteeing the necessary funds so to do.
Section 11013 gives express authority where the levees of the district as originally constructed are insufficient to provide for the enlargement and strengthening of the levees, and for the doing of any new work.
It seems clear, from an examination of the law under which Levee District No. 4 of Dunklin County was organized, that it has ample authority to secure rights-of-way, and other property for the use of the district, and also to pay any judgments that might be rendered against the levee district, and provision is also made for raising the money necessary to pay therefor.
As I understand it, your request for an opinion from me was as to whether or not Drainage District No. 25 and Levee District No. 4 of Dunklin County, Mo., are authorized by law to secure rights-of-way and other property for the use of the district, and to pay any judgments for damages that might be adjudged against the district for construction of improvements, and whether or not provision was made in the law to provide the funds necessary for such objectives.
My understanding is that this opinion is requested in conjunction with the contemplated improvement along the St. Francis River in Missouri and within Drainage District No. 25 and Levee District No. 4.
After investigation, it is my opinion that ample authority exists under the law by the provisions of which both districts were organized, to procure rights-of-way and other property needed by the district and that provisions are also made to pay therefor, and in addition to pay off and discharge any judgments that might be rendered against the district.
In my opinion, statutory authority exists for raising the revenue necessary to pay for such rights-of-way and other property appropriated to the use of the district, and to pay any damages that might to adjudged against the district by reason of the construction of the contemplated improvement. The constitution of Missouri does not prohibit any construction so long as compensation is made for private property taken or damaged for rights-of-way, or appropriated to other uses of the district.
If the above does not give you the desired information, I will, upon request, try to elaborate further in the matter. Respectfully submitted,
LANGDON R. JONES, Attorney. Mr. DRIVER. Mr. Chairman, I would like now to extend my profound thanks for the courtesies extended to the gentlemen from the district I represent as well as the others.
I understand you have the president of the Mississippi River Commission here, who, because of his official relations, you would like to accommodate this afternoon, and I will be very glad for him to have the opportunity to address you.
Mr. ZIMMERMAN. Mr. Chairman, I would like Judge Driver, as a representative of the tenth district in Missouri, which contains all of the flooded area of the St. Francis, to make a statement to the committee.
Mr. DRIVER. I would like at a later time, if convenient to the committee, to make a brief statement supplementing the things that have been said. That may be done at the convenience of the committee.
However, we have asked Senator Clark, of Missouri, who is very much interested in the St. Francis proposition, to make a statement to the committee, and he has sent word that he would be here and asked us not to adjourn until he has had an opportunity to make a brief statement.
I understand Senator Clark is on his way here from the Senate.
The CHAIRMAN. We would be very glad to have a statement by Senator Clark when he arrives.
STATEMENT OF HON. BENNETT CHAMP CLARK, A SENATOR OF
THE UNITED STATES FROM THE STATE OF MISSOURI
The CHAIRMAN. I will turn this over to Mr. Zimmerman, Congressman from Missouri.
Mr. ZIMMERMAN. Mr. Chairman and gentlemen of the committee, it affords me genuine pleasure today to present to this committee and those attendance our senior United States Senator from Missouri, the Hon. Bennett Champ Clark, who has manifested great interest in the St. Francis River proposition ever since he has been in the United States Senate. In fact, Senator Clark has proved to the people of southeast Missouri and, I might say, to the Nation as well, that he is a friend of projects similar to the St. Francis and other projects.
He is very much interested in these developments and he has consented to leave his important committee assignments this morning, in order that he might be here with us and contribute whatever he has to say to this project.
The CHAIRMAN. We are glad to have Senator Clark, and I wish to say that I know his interest in flood control. His father, Champ Clark, was Speaker of the House and the chief factor in creating this committee. You really might say that he was responsible for the creation of the Flood Control Committee, of which I have been a member from the date of its creation.
Senator CLARK. Mr. Chairman and gentlemen of the committee, I appreciate very much the courtesy the committee has shown me and I will undertake to reciprocate by making my statement exceedingly brief.
As the chairman said, I have always been very much interested in the work of this committee. My father was in the House at the time it was created and contributed in what small degree he could to the creation of the committee.
We have always in Missouri been extremely interested in the matter of flood control and the prevention of the very serious losses that occur from floods. The Mississippi River forms the whole of the eastern boundary of that State; the Missouri forms a third of the western boundary and traverses the State for its entire width. In addition to that, we have the St. Francis, Osage, Black, and other great rivers of the State, which are subject to flood conditions and which have caused immense damage in the State. Therefore, I speak with some familiarity of the various types of flood-control projects in the United States; and I say, without any hesitation, I think that the reports of the Corps of Engineers of the United States Army abundantly bear out the assertion that there is not in the whole of the United States a more meritorious flood-control project than that of the St. Francis Basin. I do not believe that there is any other place in the United States, or in any of the tributary rivers, where the people have suffered more in recent years than the people have in the great St. Francis Basin in Missouri and Arkansas.
The portion of that valley subject to overflow, above the backwater area, comprises, I think, about one-twelfth of the total area of the State of Arkansas and about one-fifteenth of the total area of the State of Missouri. It is an area which has been very rapidly de. veloped in the last 25 years, you might say since the various drainage projects reclaimed the land and permitted cultivation to a larger degree than before. The investments, improvements, and developments in that whole area have been very great in that period of 25 years. But with this condition of constant overflow, and I say this broadly, when I said a moment ago that it was one of the most urgent and meritorious projects in the United States, I had reference to the fact particularly that in recent years there has been a flood practically every year and in some years there have been as many as four or five floods. I think the year before last there were at least five separate and distinct floods, in which the railroads were flooded out and the highways which have been improved by the State of Missouri and the State of Arkansas to the extent of millions of dollars were rendered impassable and the people were driven from their homes and