Houck v. Little River Drainage Dist.

Citation248 Mo. 373,154 S.W. 739
PartiesHOUCK et al. v. LITTLE RIVER DRAINAGE DIST. et al.
Decision Date12 February 1913
CourtUnited States State Supreme Court of Missouri

Bond, J., dissenting.

In Banc. Appeal from Circuit Court, Cape Girardeau County; Charles B. Faris, Judge.

Action by Louis Houck and others against the Little River Drainage District and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Giboney Houck and Davis & Hardesty, all of Cape Girardeau, for appellants. Oliver & Oliver, of Cape Girardeau, for respondents.

BROWN, C.

This is a suit by the owners of lands in the defendant drainage district, which was incorporated by the judgment of the Butler county circuit court, November 30, 1907, under the provisions of article 3, c. 122, of the Revised Statutes of Missouri 1899, as amended by the act of April 8, 1905 (Laws 1905, p. 190). The object of the suit is to enjoin the collection of a tax of 25 cents per acre upon the lands of plaintiffs, in common with other lands of the district, levied under the provisions of the act of June 1, 1909, which is now section 5538 of the Revised Statutes of 1909. The defendants demurred to the petition, and the issue of law so raised was tried upon the following stipulation: "It is admitted that the only question in controversy in this cause is as to the constitutionality of section 5538 of the R. S. of Mo. 1909. If the court should find on demurrer to plaintiffs' petition that section 5538 is a valid and legal section under the Constitution of Missouri and of the United States, the demurrer should be sustained and plaintiffs' bill dismissed. If, on the other hand, the court shall find said section violates either the Constitution of Missouri or of the United States, then said demurrer should be overruled and judgment entered accordingly. Each party reserves the right to appeal from the judgment of the said circuit court." The demurrer was sustained and final judgment for defendants entered, from which this appeal is taken.

It was contended in the trial court that the section referred to (section 5538, R. S. 1909) is in contravention of sections 3, 4, 11, and 12 of article 10, and sections 4, 15, 21, and 30, of article 2, of the Constitution of Missouri, and of section 1 of the fourteenth amendment to the Constitution of the United States. If this position is well taken on any of these grounds the judgment of the trial court should be reversed; otherwise it must be affirmed.

I. That the state by its Legislature has the power to create corporations for the purpose of reclaiming or improving swamp and overflowed lands by ditches and drains and levees, in districts prescribed by it, or to be ascertained and fixed by such appropriate instrumentalities as it may provide, is no longer a question in this state. Nor is it an open question that the instrumentality so created may be invested with all the necessary power and authority to construct and maintain whatever works may be necessary to accomplish such object, and to raise the funds to pay for the same by assessment on the lands to be benefited thereby. Egyptian Levee Co. v. Hardin, 27 Mo. 495, 72 Am. Dec. 276; Columbia Bottom Levee Co. v. Meier, 39 Mo. 53; Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727; Squaw Creek Drainage District v. Turney, 235 Mo. 80, 138 S. W. 12; Morrison v. Morey, 146 Mo. 543, 48 S. W. 629; State v. Chariton Drainage District, 192 Mo. 517, 90 S. W. 722; State v. Taylor, 224 Mo. 393, 123 S. W. 892; Little River Drainage District v. Railroad, 236 Mo. 94, 139 S. W. 330.

These corporations, as is said in the most of the cases cited, are, when formed, public subdivisions of the state, exercising the powers granted them for the purposes of their creation, within their territorial jurisdiction, as fully, and by the same authority, as the municipal corporations of the state exercised the powers vested by their charters.

That the special taxes they are authorized to levy and collect upon and for the benefit of the lands included in their districts do not come within the provisions of article 10 of the state Constitution invoked by the appellants has long been settled, and has passed from the realm of legitimate discussion. Appellant contends, however, that the flat tax of 25 cents per acre has no relation whatever to benefits to the lands so taxed. In other words, it must either be an assessment for benefits to the lands to which it is applied, or such a general tax for governmental purposes as is required by the Constitution to be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and with respect to which all property subject to taxation must be taxed in proportion to its value. No kind of governmental exaction imposed upon property under color of the taxing power, and lying between or outside these two classes, it is contended, constitutes due process of law, and every such exaction is a taking of private property for private use, or for public use without just compensation.

The taxing power is an incident to every function of the state; but, under our system of government, it cannot stand alone. Every tax must rest on a public purpose to which its proceeds must be devoted. The police powers, on the other hand, as was said by Chief Justice Waite in Munn v. Illinois, 94 U. S. 113, 125 (24 L. Ed. 77), quoting from Chief Justice Taney in the License...

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