Bartlett Trust Co. v. Elliott

• Decision Date: 12 February 1929
• Docket Number: No. 355.,355.
• Citation: 30 F.2d 700
• Parties: BARTLETT TRUST CO. v. ELLIOTT, County Treasurer, et al.
• Court: U.S. District Court — Eastern District of Missouri

30 F.2d 700 (1929)

BARTLETT TRUST CO. v. ELLIOTT, County Treasurer, et al.

No. 355.

District Court, E. D. Missouri, N. D.

February 12, 1929.

Culver, Phillip & Voorhees, of St. Joseph, Mo., for plaintiff.

S. J. & G. C. Jones, of Carrollton, Mo., for defendants.

DAVIS, District Judge.

I. The plaintiff seeks in this action to have the court decree that certain taxes levied for the year 1928 on its lands in Chariton county, Missouri, are null and void, and to have the officers of the Garden of Eden drainage district enjoined from hereafter assessing or levying any taxes upon lands of plaintiff, for the reason that chapter 28 of the Revised Statutes of Missouri of 1919, providing for the organization of drainage districts by the circuit court, is unconstitutional and invalid, because it results in depriving plaintiff of his property without due process of law, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States.

II. No preliminary injunction was sought in this case. It was submitted on the pleadings and an agreed statement of facts for final determination on the merits by the court. Under these circumstances, it was not necessary for the case to be heard by a court of three judges, as provided by section 266 of the Judicial Code, as amended February 13, 1925 (28 USCA § 380). Smith et al. v. Wilson et al., 273 U. S. 388, 47 S. Ct. 385, 71 L. Ed. 699.

III. The Fifth Amendment constitutes a restriction on the federal government only, and not on the states. Hunter v. Pittsburgh, 207 U. S. 161, 28 S. Ct. 40, 52 L. Ed. 151. As it is the action of a state with which we are here concerned, the Fifth Amendment need not be considered. It will suffice to note that the term "due process" means the same thing in the two amendments, but in one case the restraint is on the federal government, and in the other the limitation is on the states. Hurtado v. California, 110 U. S. 516, 4 S. Ct. 292, 28 L. Ed. 232.

IV. No useful purpose will be served by setting out the whole, or any part, of the Missouri Drainage Act here in question. It should, however, be observed that the purport of the statute is not to be had from any one, or more, of the sections, but from a consideration of the entire act.

The legislative act complained of is one enacted by the state in the exercise of its police power. The stated object of the act is "for the purpose of having such lands and other property reclaimed and protected from the effects of water, for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit." Rev. St. Mo. 1919, § 4378. By its own terms (section 4438, R. S. Mo. 1919), as well as by the general policy of the law, it is entitled from its very nature to a liberal construction at the hands of the courts. In re Mingo Drainage District (Dean v. Wilson et al.) 267 Mo. 268, 183 S. W. 611; State ex rel. Marshall v. Bugg, 224 Mo. loc. cit. 554, 123 S. W. 827; State ex rel. McWilliams v. Bates, 235 Mo. loc. cit. 293, 138 S. W. 482; Powell v. Pennsylvania, 127 U. S. 678, 8 S. Ct. 992, 1257, 32 L. Ed. 253.

V. The case was submitted upon an agreed statement of facts. This statement shows that the drainage district was organized in accordance with the statute, and that the officers of the district and the county have observed and been governed by the statute in assessing and levying the tax of which complaint is now made. So that there is no issue as to any irregularity, either in the organization of the drainage district or in the manner of levying the taxes.

From the agreed statement of facts it is to be seen that the articles of association, together with a petition praying for the incorporation of the drainage district, was filed on December 23, 1916, and that the circuit court of Chariton county, on the 10th day of February, 1917, entered its order incorporating the Garden of Eden drainage district; that on November 24, 1919, the report of the commissioners assessing the amounts of benefits against lands in said district was confirmed by said court; that bonds have been issued and sold for the purpose of securing funds to carry on the improvements provided for in the plan of reclamation; that a tax was levied on all the lands of the district to pay the interest and principal of said bonds as they matured; that the land now owned by the plaintiff was formerly owned by one Henry Evernhan, Jr., who, on March 24, 1917, executed a deed of trust on said land to Bartlett Bros. Land & Loan Company; this land was acquired by the plaintiff at a foreclosure sale under the deed of trust about April, 1927; that Evernhan, Jr., the former owner, paid all the taxes assessed against the land of plaintiff, excepting the tax for the years 1926 and 1927.

VI. The complainants assert that this act of the Missouri Legislature is void, because it confers the right to form a drainage district only upon the owners of a majority of the acreage of a contiguous body of swamp, wet, or overflowed lands for a public purpose, and authorizes the taxation of lands of such a character within its boundaries and at the same time denies to any landowner who has not signed the articles of association (1) the right to show that the lands owned by the signers of the articles are not wet, swamp, or overflowed lands; (2) or that the lands embraced within the boundaries of the proposed district are not of that character; (3) or that the lands of the objecting landowners are not swamp, wet, or overflowed lands, and cannot be benefited in any way by any plan of reclamation; (4) or that the object of the incorporation is not a public purpose, but a private enterprise.

The contention is that, where objections are filed to the articles of association for a proposed drainage district, under the statute such objections "shall be limited to a denial of the statements in the articles of association." Therefore defenses such as those just mentioned were not available to an objector, at the time of the organization of a drainage district.

It will be well to notice at this point what the articles of association are required to contain. Section 4378, R. S. 1919, requires the owners of a majority of the acreage in any contiguous body of swamp, wet, or overflowed lands to sign articles of association in which it shall be stated:

(1) The name of the district.

(2) The number of years the same is to continue.

(3) The boundary lines of the proposed drainage district.

(4) The names of the owners of lands or other property in said district, together with a description of the lands and other property owned by it.

(5) When the names of the owners of any of said lands or other property is unknown, this fact shall be set out in said articles.

(6) That the owners of real estate and other property within said district, whose names are subscribed to said articles, are willing to pay the taxes that may be assessed against their lands or other property to pay the expense of organizing and of making and maintaining the improvements that may be necessary to effect the reclamation of said lands and other property.

(7) The articles of association shall contain a prayer praying that the lands or other property described therein be declared a drainage district.

The court, upon the issue made by the articles of association, which constitute the first pleading in the action (Sibbett v. Steele, 240 Mo. 85, 144 S. W. 439), and the objections thereto, enters its order, either declaring the district a public corporation or dismissing the action because it finds that the property should not be incorporated into a drainage district.

VII. Complainants assert that the act, particularly section 4387, R. S. 1919, is void, because it authorizes a majority of the owners of a body of swamp land, not only to form it into a drainage corporation, but also to create a taxing district and levy a tax of 50 cents per acre on every acre within its boundaries, to pay the preliminary expense of organizing the district, for the reason that it does not afford a landowner an opportunity to assert defenses such as those mentioned above; that the levy of the tax in the manner provided was a denial of due process.

The case of Spencer v. Merchant, 125 U. S. 345, 8 S. Ct. 921, 31 L. Ed. 763, is in principle similar to the case now before the court. A special assessment had been levied for the improvement of a street. The improvement was made and a portion of the tax levied against the lots within the district had been paid. A contest was made of the statute authorizing the improvement, and it was held to be invalid. Thereafter the Legislature passed another statute fixing the amount of benefits as the total of the remaining unpaid tax, together with some additions for interest and expense. This new act provided that the property owners would be given a hearing upon the apportionment of this total tax among lots, the owners of which had not paid the original assessment. The property owners were not given a right to contest the total assessment, but could have a limited hearing on the manner of apportioning this total amount among the various lots. The Supreme Court said:

"In the absence of any more specific constitutional restriction than the general prohibition against taking property without due process of law, the Legislature of the state, having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it to be assessed, either like other taxes, upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax, and the class of lands which will receive the benefit and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of commissioners.

"When the determination of the lands to be benefited is...