Bushnell v. Mississippi & Fox River Drainage Dist. of Clark County

• Citation: 102 S.W.2d 871,340 Mo. 811
• Decision Date: 17 March 1937
• Docket Number: 34442
• Parties: Webster P. Bushnell, Charles C. McCann and Donald H. Bushnell, Doing Business as a Copartnership under the name of Bushnell & McCann, Appellants, v. Mississippi & Fox River Drainage District of Clark County and Charles Krueger, Christian Graf, J. W. Dienst, Harry Bennett and I. W. Hoewing, Supervisors of said Mississippi & Fox River Drainage District
• Court: Missouri Supreme Court

102 S.W.2d 871

340 Mo. 811

Webster P. Bushnell, Charles C. McCann and Donald H. Bushnell, Doing Business as a Copartnership under the name of Bushnell & McCann, Appellants, v. Mississippi & Fox River Drainage District of Clark County and Charles Krueger, Christian Graf, J. W. Dienst, Harry Bennett and I. W. Hoewing, Supervisors of said Mississippi & Fox River Drainage District

No. 34442

Supreme Court of Missouri

March 17, 1937

Appeal from Clark Circuit Court; Hon. Walter A. Higbee Judge.

Transffered to the St. Lous Court of Appeals.

J E. Newkirk, Hiller & Hiller and T. L. and L. J. Montgomery for appellants; E. W McManus on brief.

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

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

Webster P. Bushnell, Charles C. McCann and Donald H. Bushnell compose a copartnership under the firm name of Bushnell & McCann and "are engaged in civil engineering." The Fox River Drainage District is a circuit court drainage district of Clark County organized in 1915 under the provisions of the statutes of this State, now Article 1, Chapter 64, Revised Statutes 1929, relating to the organization of drainage districts by circuit courts. Bushnell & McCann performed certain engineering services for the drainage district and on April 5, 1932, obtained a judgment therefore against the district, in the Circuit Court of Clark County, in the amount of $ 6000 with interest at six per cent. On July 11, 1932, designating themselves therein as plaintiffs, the copartners filed a petition, in their own names, not in the name of the State to their use, in the Circuit Court of Clark County alleging the rendition of the judgment aforesaid in their favor, that execution had been issued thereon and returned "wholly unsatisfied," that they had demanded that the supervisors of the drainage district levy a tax "to pay said judgment" but that the supervisors had refused to do so, that they had no adequate remedy at law, and prayed that "a peremptory order of mandamus issue commanding said defendants forthwith to levy and collect a sufficient tax to pay said judgment with interest and costs," etc. The drainage district and the supervisors filed a return, designating themselves, as does the petition, defendants. The cause was tried on an "Agreed Statement of Facts." On December 10, 1934, the trial court entered judgment quashing its alternative writ of mandamus and denying the peremptory writ of mandamus prayed by the petition, from which judgment the plaintiffs appealed and the appeal was sent to this court.

An understanding of the issues herein requires a resume first of those provisions of the drainage statutes involved which relate to and authorize the levy of taxes or assessments against lands within the district. Section 10752, Revised Statutes 1929, provides, that "the board of supervisors . . . shall as soon as elected and qualified . . . levy a uniform tax of not more than fifty cents per acre upon each acre of land within such district . . . to be used for the purpose of paying expenses incurred or to be incurred in organizing said district, making surveys of the same and assessing benefits and damages and to pay other expenses necessary to be incurred before said board shall be empowered by subsequent provisions of this article to provide funds to pay the total costs of works and improvements of the district. In case the boundary lines of the district be extended . . . to include lands . . . not described and contained in the articles of association, the same uniform tax shall be made on such lands," etc. When the commissioners have filed their report assessing benefits and damages, and exceptions thereto have been heard and determined and the report, as modified, if so, is confirmed, Section 10759, Revised Statutes 1929, provides, that "the board of supervisors shall . . . levy a tax of such portion of said benefits on all lands," etc., "in the district to which benefits have been assessed, as may be found necessary by the board of supervisors to pay the costs of the completion of the proposed works and improvements . . . and in carrying out the objects of said district, plus ten per cent of said total amount for emergencies." However, if "after determining the objections" to the report the court finds "that the estimated costs of works and improvements . . . exceed the estimated benefits, the court shall then render its decree, declaring the incorporation of the district to be dissolved as soon as all costs incurred, which shall include court costs and all obligations and expenses incurred in behalf of the district by the board of supervsiors shall have been paid, and if the uniform tax levied under the provisions of Section 10752 . . . be found insufficient to pay all such costs, the board of supervisors shall make such additional uniform tax levies as will be necessary to pay such deficiency." [Sec. 10781, R. S. 1929.] Provision is also made that the "incorporation" of such drainage district "shall be dissolved if, at any time before its board of supervisors has adopted a plan for reclamation, the owners, of a majority of the acres of land within said district petition the circuit court, . . . for a dissolution thereof." In which event "before dissolving said corporation" the court shall "ascertain and determine the amount of money in the treasury of, or owing to, said corporation" and the amount of unpaid warrants outstanding and debts and "other obligations owing by it" and if "the amount of money in the treasury and owing to said corporation is not sufficient" to pay its indebtedness the court "shall order said board of supervisors to levy and collect a uniform tax" upon the land within the district "sufficient in amount to pay said deficiency." [Sec. 10780, R. S. 1929.] The foregoing provisions constitute the whole of the statutory power given to the board of supervisors to levy a tax against lands within the district.

The following are the more pertinent facts taken from the "Agreed Statement of Facts." In 1915 the board of supervisors levied a uniform tax of fifty cents per acre on each acre of land in the district as authorized by what is now Section 10759, Revised Statutes 1929, supra, for the purposes designated by the statute. "The major portion of said tax was collected and paid out, but there were and are a number of landowners in the district who failed and refused to pay" the fifty cents per acre tax, "and said taxes are yet unpaid." "No suit has ever been prosecuted in behalf of the district...