Cunningham Realty Co. v. Drainage Dist. No. 6, of Pemiscot County

• Decision Date: 03 July 1931
• Parties: CUNNINGHAM REALTY COMPANY, A CORPORATION, APPELLANT, v. DRAINAGE DISTRICT NO. 6 OF PEMISCOT COUNTY, MISSOURI, A MUNICIPAL CORPORATION AND T. R. COLE, J. H. HENDERSON AND U. C. WELLS, JUDGES OF THE COUNTY COURT OF PEMISCOT COUNTY, MISSOURI, RESPONDENTS
• Court: Missouri Court of Appeals

40 S.W.2d 1086

226 Mo.App. 1

CUNNINGHAM REALTY COMPANY, A CORPORATION, APPELLANT, v. DRAINAGE DISTRICT NO. 6 OF PEMISCOT COUNTY, MISSOURI, A MUNICIPAL CORPORATION AND T. R. COLE, J. H. HENDERSON AND U. C. WELLS, JUDGES OF THE COUNTY COURT OF PEMISCOT COUNTY, MISSOURI, RESPONDENTS

Court of Appeals of Missouri, Springfield

July 3, 1931

Appeal from the Circuit Court of Pemiscot County.--Hon. John E Duncan, Judge.

AFFIRMED AS TO FIRST COUNT, REVERSED AND REMANDED WITH DIRECTIONS AS TO SECOND COUNT, AND REVERSED AS TO THIRD COUNT.

Von Mayes for appellant.

Charles Claflin Allen, B. H. Charles and Ward & Reeves for respondents.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

--This suit is based upon an amended petition in three counts. The petition is very long, we do not set is out in full. The first count of the petition alleged that the plaintiff owned the following described lands: The southwest quarter of section 31, and northeast quarter of section 32, all in township 18, range 12 east; and the west half of west half of section 19, in township 18, range 13 east, all situate within the boundary lines of said drainage district, and in Pemiscot county, Missouri. The petition alleged the establishment of Drainage District No. 6 of Pemiscot county, Missouri, within which district was included the above described lands, and that the total benefits assessed against the lands thereof was $ 541,491, and that the original cost of construction of said district was $ 284,000, and benefits were assessed and the original drains and works of said district were completed prior to 1918. In 1918 the landowners in said district filed their petition under section 5613, Revised Statutes 1909 (section 10845, R. S. 1929), to enlarge, clean out and remove obstructions from the original drains of said district. This petition was granted and the engineer reported the cost of the work to be $ 784,515.94, which, under orders of the court, was divided pro rata against the lands of the district according to the original assessments of benefits and $ 600,000 of bonds of the district were issued and sold to raise funds with which to enlarge, clean out and remove obstructions from the original drains of the district.

The plaintiff concedes the proceedings to be regular and legal up to this point. The first count of the petition complains of three additional levies made thereafter, the complaint in said petition being expressed as follows:

"That thereafter, on April 27, 1922, said court levied an additional tax of $ 170,744 against the lands of said district to complete said work of enlarging, cleaning out and removing obstructions from said drains, and thereupon issued and sold bonds of said district in the total amount of $ 250,000 to raise funds for said purpose; that thereafter, on December 3, 1923, said court levied an additional tax of $ 35,232.99 against the lands of said district to complete said work of enlarging, cleaning out and removing obstructions from said drains, and thereupon issued and sold bonds of said district in the total sum of $ 30,000 to raise funds for said purpose; and thereafter, on January 20, 1925, said court levied an additional tax of $ 27,616.04 against the lands of said district to complete said work of enlarging, cleaning out and removing obstructions from said drains, and thereupon issued and sold bonds of said district in the total sum of $ 25,000 to raise funds for said purpose; that the said levies of said additional taxes by said court against the lands of said district were not made upon any petition of any landowners or report of the engineer of said district, and were made by said court without authority in law and are void and said additional taxes so levied are illegal and the same constitute clouds upon the title of plaintiff to its said lands, and the said issuance of said bonds by said court in excess of $ 784,515.94, the said cost of said work of enlarging, cleaning out and removing obstructions from said drains reported by the engineer of said district and taxed against the lands of said district as aforesaid, was without right or authority in law and is void and said bonds so issued in excess of said $ 784,515.94 are invalid, and defendants threaten to and will, if not restrained, levy or extend by apportionment annually a tax against the lands of said district, including the said lands of plaintiff, to pay the interest on said invalid bonds and thereby cast further clouds upon the title of plaintiff to its said lands and will attempt annually to collect by suit illegal taxes from plaintiff and to sell its said lands to pay the same.

"Plaintiff further states that if the said clouds upon its title to its said lands are left to stand and if defendants are suffered to cast further clouds upon the title of the plaintiff to its said lands as aforesaid or attempt to collect by suits from plaintiff said illegal taxes levied against its said lands as aforesaid, or any part thereof, the same will hinder and embarrass and prevent the plaintiff in the sale and disposition of its said lands and diminish the market value thereof and cause a multiplicity of law suits; that it requires legal acumen to determine the invalidity of said illegal taxes and plaintiff has no adequate remedy at law; and plaintiff further says that if any of said taxes are adjudged by the court to be legal against its said lands plaintiff is ready and willing and hereby offers to pay the same or any portion thereof that may be adjudged by the court to be legal and to do equity any otherwise in the premises.

"Wherefore, plaintiff prays the decree of this court adjudging that the levies of said additional taxes against its said lands are null and void and that said taxes so levied are illegal, and that the same be removed as clouds upon the title of plaintiff to its said lands, and that the defendant be enjoined from levying or extending by apportionment any tax against the lands of plaintiff aforesaid to pay the interest on said bonds issued in excess of $ 784,515.94 by said court for said district as aforesaid and from attempting to collect from it by suit the said illegal taxes levied against the said lands of plaintiff, and for such other and further relief as the court may deem proper and just in the premises."

The second count of plaintiff's petition is as follows:

"Plaintiff for another and different cause of action repeats and realleges therefor the facts and statements contained in the first, second and third paragraphs of the first count of this petition, and further states therefor that on the 8th day of May, 1929, the said court for said district levied a tax of $ 32,489.96 against the lands of said district, including the said lands of plaintiff, designated by said court as a maintenance tax and as being 6 per cent of benefits assessed against said lands in 1918, which amount is in excess of ten per cent of the original cost of construction of said district, in violation of section 4511, Revised Statutes 1919; that there was ample money in the maintenance fund of said district at the time of such levy to maintain the ditches and works of said district for the ensuing year and such tax was not needed to maintain the drains and works of said district, and the action of said court in levying the same was oppressive and arbitrary and an abuse of discretion; that in fact said tax was not levied by said court for maintenance purposes, but was levied under the guise of a maintenance tax to raise funds to expend in enlarging and cleaning out the drains of said district and in doing new work therein and therefore said tax was levied by said court without authority in law and is illegal and that portion of same levied against the said lands of plaintiff is a cloud upon the title of plaintiff to its said lands.

"Plaintiff further states that if the said cloud upon its title to its said lands is left to stand, or defendants are suffered to attempt to collect by suit from plaintiff said illegal tax levied against its said lands as aforesaid, or any part thereof, the same will hinder and embarrass and prevent the plaintiff in the sale and disposition of its said lands and diminish the market value thereof and cause a multiplicity of law suits; that it requires legal acumen to determine the invalidity of said illegal taxes and plaintiff has no adequate remedy at law; and plaintiff further states that if any of said maintenance tax is adjudged by the court to be legal against the said lands plaintiff is ready and willing and hereby offers to pay the same or any portion thereof that may be adjudged by the court to be legal and to do equity any otherwise in the premises.

"Wherefore, plaintiff prays the decree of this court adjudging that the levy of said maintenance tax against its said lands is null and void and that said tax so levied is illegal, and that the same be removed as a cloud upon the title of plaintiff to its said lands and that the defendants be enjoined from attempting to collect from it by suit said tax levied against the said lands of the plaintiff, and for such other and further relief as the court may deem proper and just in the premises."

The first paragraph of the third count of the petition is as follows:

"Plaintiff for another and different cause of action repeats and realleges therefor the facts and statements contained in the first, second and third paragraphs of the first count of this petition and further states therefor that on the 25th day of May, 1929, said court levied a bridge tax against the land of said district of one per cent of the total benefits assessed against the land in said district; that said court was without authority in law to levy said bridge tax and the same...