Bushnell et al. v. Drainage District et al.

Decision Date04 January 1938
Docket NumberNo. 24612.,24612.
CourtMissouri Court of Appeals
PartiesWEBSTER P. BUSHNELL, CHARLES C. McCANN, AND DONALD H. BUSHNELL, DOING BUSINESS AS A COPARTNERSHIP UNDER THE NAME OF BUSHNELL & McCANN, APPELLANTS, v. MISSISSIPPI AND FOX RIVER DRAINAGE DISTRICT OF CLARK COUNTY, MISSOURI, AND CHARLES KRUEGER, CHRISTIAN GRAF, J.W. DIENST, HARRY BENNETT, AND I.W. HOEWING, SUPERVISORS OF SAID MISSISSIPPI AND FOX RIVER DRAINAGE DISTRICT, RESPONDENTS.

Appeal from the Circuit Court of Clark County. Hon. Walter A. Higbee, Judge.

AFFIRMED.

J.E. Newkirk, Hiller & Hiller and T.L. and L.J. Montgomery for appellants.

E.W. McManus on brief.

(1) When fully formed, the drainage district is clothed with power of taxation. The power of levying taxes is vested in the board of supervisors after the corporate district is organized. Garden of Eden Drainage District v. Bartlett Company, 50 S.W. (2d) 627. (2) Sec. 10781, R.S. Mo., 1929. (3) The board of supervisors was vested with the power and duty of paying all expenses, preliminary and otherwise incurred up to the point that the commissioners' report is approved or disapproved by the court. This expense can be incurred by the board of supervisors and paid from a tax levy. Houck v. Little River Drainage District, 154 S.W. 739, 60 L. Ed. 266; Honey Creek Drainage District v. Farm Investment Company, 32 S.W. (2d) 753. (4) Authorities of corporation can be compelled to proceed to levy a tax in cases where the Legislature has conferred the authority on the corporation either in express terms or by necessary implication. State ex rel. Wilson v. Rainey, 74 Mo. 229. (5) Appellants' judgment which forms the basis for this proceeding in mandamus is conclusive as to every matter which was offered or could have been offered to sustain or defeat the claim or demand upon which it was based. Cromwell v. County of Sac, 94 U.S. 351; Mississippi and Fox River Drainage District v. Ruddick, 228 Mo. App. 1143, 64 S.W. (2d) 306; U.S. v. New Orleans, 98 U.S. 381; Allen et al. v. Parker et al. (N.C.), 95 S.E. 170; 34 C.J. 967; Harshman v. Knox Co., 122 U.S. 306; Ralls Co. v. U.S., 105 U.S. 733; Hill v. Scotland Co. Ct., 32 Fed. 716; Hicks v. Cleveland, 106 Fed. 459; Woods Brothers Construction Company v. Yankton County, 54 F. (2d) 304. (6) A judgment is a debt of the highest form and operates as a merger and bar of all included claims. 12 C.J., sec. 33, page 37; State ex rel. Emerson v. Mound City (Mo.), 73 S.W. (2d) 1017. (7) Mandamus is a proceeding ancillary to the main suit and is the proper remedy to recover judgments against municipalities. State v. Cook (Mo.), 201 S.W. 361; State v. Butler County, 164 Mo. 214, 64 S.W. 176; 38 C.J. 761; Harshman v. Knox County, 122 U.S. 306; Thompson v. U.S., 103 U.S. 480; U.S. v. New Orleans, 98 U.S. 381; Kinney v. Eastern Trust & Banking Company, 123 Fed. 297. (8) The respondent drainage district is a municipal corporation and a political subdivision of the State. Mound City v. Miller, 170 Mo. 240, 70 S.W. 721; Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S.W. 739; Morrisey v. Morey, 146 Mo. 543, 48 S.W. 629; McQuillin, Municipal Corporations (2 Ed.), sec. 125. (9) Where a quasi-municipal corporation has the power to enter into contracts for services or material, there is an implied power to levy and collect and pay over funds necessary to pay the agreed price therefor. Bates Co., Mo., v. Wills, 239 Fed. 785; U.S. v. Saunders, 124 Fed. 124, 128-131, 59 C.C.A. 394; Loan Ass'n v. Topeka, 20 Wall. 655, 660, 22 L. Ed. 455; U.S. v. New Orleans, 98 U.S. 381, 393, 28 L. Ed. 225; Ralls County Court v. U.S., 105 U.S. 733, 26 L. Ed. 1220; U.S. v. Clark County, 96 U.S. 211, 24 L. Ed. 628; Commonwealth v. Commissioners of Allegheny County, 37 Pa. 277, 290; Lowell v. Boston, 11 Mass. 454, 15 Am. Rep. 39; State ex rel. Hasbrook v. Milwaukee, 25 Wis. 122; Norris v. Montezuma Valley Dr. Dist., 248 Fed. 369-372; Bunch v. U.S., 252 Fed. 673, at page 679; Wolff v. New Orleans, 103 U.S. 358. (10) Assessments levied by drainage districts do not create an indebtedness within constitutional limitations. C., M. & St. P.R.R. Co., 266 Mo. 69, 178 S.W. 893; Houck v. Little River Drainage District, 248 Mo. 373, 154 S.W. 739. (11) Boards of supervisors of drainage districts are empowered to employ engineers for the district. R.S., Mo., 1929, sec. 10750, sec. 4385, R.S., 1919. Boards of supervisors are empowered to enter into contracts with and employ attorneys for drainage districts. R.S., Mo., 1929, sec. 10770, sec. 4403, R.S. 1919. (12) Boards of supervisors are empowered to provide compensation for officers, engineers, attorneys, and other employees, and to pay their fees and necessary expenses. R.S., Mo., 1929, sec. 10782, sec. 4414, R.S., 1919. (13) Boards of supervisors have power to prosecute proceedings to extend the boundary lines of drainage districts. R.S., Mo., 1929, sec. 10784, sec. 4416, R.S., 1919. (14) Boards of supervisors have power to institute proceedings to amend the "plan for reclamation." R.S., Mo., 1929, sec. 10786. (15) Before a drainage district can be dissolved, either voluntarily or by order of court, the board of supervisors must in addition to any taxes theretofore levied make additional uniform levies sufficient to pay off and discharge all outstanding obligations of the district. R.S., Mo., 1929, sec. 10780, as amended by Laws of 1935, page 228; R.S., Mo., 1929, sec. 10781.

Rendlen, White & Rendlen and B.F. Jones for respondents.

(1) "Appellants are conclusively presumed to know, that these public agents are acting strictly within the sphere limited and prescribed by law and outside of which they are utterly powerless to act." State ex rel. Watkins v. Macon County, 68 Mo. 29, 37; Cheeney v. Brookfield, 60 Mo. 53; Keating v. Kansas City, 84 Mo. 415, l.c. 419. (2) Drainage district law is a code unto itself, purely statutory, independent of the civil code, and the courts must strictly follow and construe the provisions of those acts. Mississippi & Fox River Drainage Dist. v. Ackley, 270 Mo. 173, 192 S.W. 732; State ex inf. McAllister v. Norborne Land Drainage Dist., 234 S.W. 344, l.c. 348. (3) There are express statutory limitations and prohibitions upon the power of the board of supervisors to levy taxes. There are clear restrictive provisions upon this taxing power. They only have such power so to do as is expressly given by statute. There are only four sections of Article I, Chapter 64, R.S. Mo. 1929, authorizing or permitting the levy of any assessment for drainage districts or works erected by them, including engineers or attorneys fees. They are: (a) Section 10752, R.S. Mo. 1929. (b) Section 10759, R.S. 1929. (c) and (d). Sections 10780 and 10781, R.S. Mo. 1929; Statutes above cited (III-a); Garden of Eden Drainage District v. Bartlett Trust Co., 50 S.W. (2d) 627, 631, 330 Mo. 554. "The law does provide for full and complete information and notice of the `plan for drainage' before the assessment of benefits, and gives to every landowner the right to be heard and to a trial in court before a charge can be placed against his land." Little River Drainage District v. St. Louis M. & S.E.R.R., 236 Mo. 94, 110, 139 S.W. 330. (4) The only authority and right to impose or levy any drainage tax exists by reason of a statute so providing. Absent such positive statute so granting the right, no such right exists. Those asserting the right to levy or the validity of the tax must point out the law so authorizing. There is no statute authorizing the levying of a tax as sought by appellants. Birmingham Drainage Dist. v. C.B. & Q.R.R. Co., 274 Mo. 140, 202 S.W. 404; Cunningham Realty Co. v. Drainage Dist., No. 6, 40 S.W. (2d) 1086; Sec. 10752, R.S. Mo. 1929 (sec. 11, Laws 1913, p. 238); Sec. 10759, R.S. Mo. 1929 (sec. 18, Laws 1913, p. 242); Little River Drainage Dist. v. St. L. etc. R.R., 236 Mo. 94, 139 S.W. 330; Garden of Eden Drainage Dist. v. Bartlett Trust Co., 50 S.W. (2d) 627, 330 Mo. 554; State ex rel. Watkins v. Macon County, 68 Mo. 29; State ex rel. Watkins v. Macon County, 68 Mo. 29, l.c. 36; State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Wilson v. Rainey, 74 Mo. 229, l.c. 236, 237; U.S. v. Labette Co., 7 Fed. 318; Little River Drainage Dist. v. St. Louis etc. R.R., 236 Mo. 94, 139 S.W. 330. Mandamus cannot be used to compel this drainage district to levy a tax beyond the power or limits imposed by the statute, or to do an illegal act. (5) State ex rel. Poole v. City of Willow Springs, 183 S.W. 589; Cases supra (V-b); Mississippi & Fox River Drainage District v. Ruddick, 228 Mo. App. 1143, 64 S.W. (2d) 306, l.c. 308 and 309; State ex rel. Watkins v. Macon County, 68 Mo. 29; State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Wilson v. Rainey, 74 Mo. 229, 236, 237; State ex rel. Poole v. Willow Springs, 183 S.W. 589. (6) U.S. v. Clark Co., 6 Otto 211, 96 U.S. 211; State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Poole v. Willow Springs, 183 S.W. 589.

McCULLEN, J.

This action in mandamus was instituted by appellants in the Circuit Court of Clark County, Missouri, to compel the respondent drainage district and the members of its board of supervisors to levy a tax to pay a judgment that had been previously rendered against said drainage district in favor of appellants. After a trial, the court quashed the alternative writ which it had theretofore issued and denied a peremptory writ. The claimants took an appeal to the Supreme Court. That court held it did not have jurisdiction and transferred the cause to this court. [See Bushnell et al. v. Mississippi & Fox River Drainage District (Mo.), 102 S.W. (2d) 871.]

The cause was submitted to the trial court upon an agreed statement of facts which constitutes the only evidence in the case. It appears from the agreed statement of facts that respondent district was duly incorporated as a drainage district on October 8, 1915, under the...

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