Chariton River Drainage Dist. of Adair County v. Latham
| Decision Date | 01 February 1943 |
| Parties | Chariton River Drainage District of Adair County, Missouri, a Corporation, Defendant in Error, v. Minta Latham, Plaintiff in Error |
| Court | Kansas Court of Appeals |
Error to Adair Circuit Court; Hon. Noah W. Simpson, Judge.
Reversed.
E M. Jayne for plaintiff in error.
(1) This being a suit for a tax, it is incumbent on the plaintiff to make a strict showing of everything necessary to constitute a valid tax. Sec. 12362, R. S. Mo. 1939. (2) The defense of this suit was the first and only opportunity the landowners had to secure a judicial determination of the question as to whether the district had legal obligations. Hence, when the landowners raised the issue that the district did not have any debts for which a tax could be assessed, it became a part of the district's case to show that it was in fact legally obligated to pay the money for which the tax was assessed. Art. 1, Chap. 79, R. S. Mo. 1939; Buschnell v. Mississippi & Fox Drainage District, 111 S.W.2d 946 952; State ex rel. Watkins v. Macon, 68 Mo. 29, 37; Cheeney v. Brookfield, 60 Mo. 53. (3) If the supervisors of a drainage district can levy a tax, ostensibly to pay debts of the district, and if the landowners cannot question whether there are any debts of the district but must submit to the determination of the supervisors without question then the landowners are subjected to what could amount to confiscation of or damage to their property without remedy whatever. Sec. 10, Art. II, Const. Mo. (4) The right to challenge the validity of the alleged debts for which the tax was levied should be more especially allowed where, as here, the entire amount of the alleged indebtedness, except an inconsequential item or two, is in favor of the acting supervisors and the engineering firm and attorneys who have been in control of the affairs of the corporation from its inception. (5) It is the intent of the law to limit the supervisors to an organization expense of not more than fifty cents per acre. Sec. 12333, R. S. Mo. 1939; Buschnell v Drainage District, 111 S.W.2d 946; Drainage District v. Reddick, 228 Mo.App. 1143, 64 S.W.2d 306. (6) The supervisors are required to be owners of real estate in the boundaries of the district. Hence a vacancy is created when a supervisor no longer is a landowner and his acts from and after that time should not be even the acts of a de facto officer. Sec. 12327, R. S. Mo. 1939. (7) The engineering firm and the firm of attorneys undertook to contract with the board of supervisors in such a way as to entitle them to their full fee regardless of whether any plan of reclamation or construction work was done by either of them. In this situation the contract as to the amount of their fee was inoperative and the amount, if any, which the district owed them for work done of a preliminary nature was a question of quantum meruit, hence the action of the supervisors in treating the entire contract amount as a debt was certainly not binding on the landowners. It was only lawful debts for which a tax could be levied.
Murrell & Murrell, Clifford B. Kimberly and Milligan, Kimberly & Deacy for defendant in error.
(1) Plaintiff made a submissible case on the evidence adduced. Secs. 11187, 12333, 12336, 12338, 12345, 12346, 12362, R. S. Mo. 1939; Sec. 9953, R. S. Mo. 1929; Little River Drainage District v. Houck, 137 S.W.2d 656, 235 Mo.App. 73; State ex rel. Ross v. General American Life Ins. Co., 85 S.W.2d 68, 76, 336 Mo. 829; State ex rel. McBride v. Sheetz, 214 S.W. 376, 377, 279 Mo. 429; State ex rel. Roberts v. Eicher, 178 S.W. 171. (2) The tax upon which suit is brought was levied to pay valid obligations of plaintiff drainage district. Jennings v. Jennings, 33 S.W.2d 165, 168, 225 Mo.App. 1010; State ex rel. Boatmens National Bank of St. Louis v. Webster Groves General Sewer District of St. Louis County, 37 S.W.2d 905, 327 Mo. 594; State ex rel. and to Use of Stoecker v. Jennings Sewer District of St. Louis County, 63 S.W.2d 133, 333 Mo. 900; Diekroeger v. Jones (Mo. App.), 151 S.W.2d 691; State ex rel. McBride v. Sheetz, 214 S.W. 376, 377, 279 Mo. 429; State ex rel. Roberts v. Eicher, 178 S.W. 171; State ex rel. Ross v. General American Life Ins. Co., 85 S.W.2d 68, 76, 336 Mo. 829; Secs. 12330, 12331, 12333, 12351, 12362, 12363, R. S. Mo., 1939; Graves v. Little Tarkio Drainage District, 134 S.W.2d 70, 78, 345 Mo. 557; Macon County Levee District v. Goodson, 22 S.W.2d 651, 224 Mo.App. 131; State ex rel. Hotchkiss v. Lemay Ferry Sewer District, 92 S.W.2d 704, 338 Mo. 653; Jacoby v. Missouri Valley Drainage District (Mo.), 163 S.W.2d 930; Bushnell v. Mississippi & Fox River Drainage District (Mo. App.), 111 S.W.2d 946. (3) The tax levy upon which suit based is uniform and valid. Holman v. Mo. Pac. R. R. Co., 64 S.W.2d 617, 334 Mo. 61; State ex rel. Drainage District v. Thompson, 41 S.W.2d 941, 328 Mo. 728; State ex rel. Frazer v. Holt County, 37 S.W. 521, 135 Mo. 533; State ex rel. Ross v. Juden (Mo. App.), 110 S.W.2d 865; Sheridan v. Fleming, 5 S.W. 813, 814, 93 Mo. 321. (4) The tax upon which suit is brought was duly levied by the board of supervisors of plaintiff district and no competent evidence was introduced to show them in any way disqualified to act. Safety Savings & Loan Assn. v. Williams, 71 S.W.2d 848, 228 Mo.App. 595; Mississippi & Fox River Drainage District v. Ruddick, 64 S.W.2d 306, 228 Mo.App. 1143; State ex rel. Jones v. Young, 164 S.W. 579, 255 Mo. 627; Secs. 12327, 12328, R. S. Mo. 1939; Rhodes v. Koch, 189 S.W. 641, 643, 195 Mo.App. 286; State ex rel. Ross v. General American Life Ins. Co., 85 S.W.2d 68, 76, 336 Mo. 829; St. Louis Colonization Assn. v. Hennessy, 11 Mo.App. 555, 560; Diekroeger v. Jones (Mo. App.), 151 S.W.2d 691.
This cause reaches this court on a writ of error sued out to review a judgment of the Circuit Court of Adair County, Missouri. In the trial court, the drainage district was plaintiff and Minta Latham was defendant, and for convenience they will be referred to in that manner.
Plaintiff is a drainage district organized in 1928 by decree of Circuit Court of Adair County, under the provisions of what is now Article 1, Chapter 79, Revised Statutes Missouri 1939. Following the decree of incorporation, a uniform organization tax of 50c per acre was levied upon all of the lands in the district in accordance with what is now Section 12333, Revised Statutes 1939. Shortly after the organization of the district, the Board of Supervisors by written contracts employed an engineering firm and a firm of attorneys. A plan of reclamation was prepared and adopted and commissioners to assess benefits and damages were appointed. These commissioners did not make a report to the circuit court until the 20th day of January, 1938, almost ten years after their appointment. Their report disclosed that the damages exceeded the amount of benefits. Certain landowners within the district, including this defendant, filed exceptions to that report and after a hearing, the court, on September 8, 1938, ordered that the district be dissolved "as soon as all costs and expenses incurred, including court costs and all other obligations and expenses incurred in behalf of the district by the Board of Supervisors shall have been paid . . .". It was further ordered that the Board of Supervisors, naming them, "forthwith meet and ascertain the total amount of indebtedness of said corporation, including court costs and other obligations and expenses, and if there is not now sufficient money in the treasury of said corporation to discharge the same, that said Board of Supervisors shall, and is hereby ordered to make such additional uniform tax levy as will be necessary to pay such deficiency, if any." [Sec. 12362, R. S. 1939.]
Thereafter, the Board of Supervisors made, or as defendant contends, attempted to make, a levy of an additional sum of $ 1.00 per acre on all of the land of the district to pay the debts of the district. There was something in excess of 8600 acres in the district, and this defendant was the owner of thirty-two acres, and is being sued on her tax bill for the $ 32 taxes, with interest and attorneys' fees. A trial was had before the court without the aid of a jury and resulted in a verdict for the plaintiff for the amount of the taxes, with interest and attorneys' fees.
Defendant relies upon a number of assignments of error, but after considering her original brief and reply brief, there seems to be two grounds upon which she relies in this court. They are: "(1) That the tax upon which this suit was brought was not levied to pay valid obligations of the district, for certain reasons noted later; (2) that any obligation of the district to the Board of Supervisors, the engineering company or the attorneys could not be the basis for a dissolution levy in addition to the fifty cent an acre organization levy under the circumstances in this case."
The Board of Supervisors made a levy in the sum of $ 8650.94 as the amount required to pay the obligations and expenses incurred in behalf of the district by the Board of Supervisors. The principal items making up this total were $ 1000 to the supervisors, balance due the engineering firm, the attorneys, court costs, and certain small items.
Under her point one, defendant first contends that "no valid obligation of the district existed in favor of the Board of Supervisors," and cites Section 12330, Revised Statutes Missouri 1939, which provides in part: ...
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Little Chariton Drainage Dist., Chariton County, Matter of
...the supreme court reversed and authorized judgment in favor of the plaintiff engineer. The next case was Chariton River Drainage Dist. v. Latham, 237 Mo.App. 1010, 170 S.W.2d 433 (1943), in which a drainage district sued to collect an additional levy for the payment of its debts upon dissol......