Diekroeger v. Jones

• Decision Date: 05 May 1941
• Citation: 151 S.W.2d 691,235 Mo.App. 1117
• Parties: C. W. DIEKROEGER, RESPONDENT, v. W. W. JONES ET AL., APPELLANTS
• Court: Kansas Court of Appeals

151 S.W.2d 691

235 Mo.App. 1117

C. W. DIEKROEGER, RESPONDENT, v. W. W. JONES ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

May 5, 1941

Transferred from Supreme Court.

145 S.W.2d 435.

Appeal from Circuit Court of Nodaway County.--Hon. Ellis Beavers Judge.

AFFIRMED.

Judgment affirmed.

Livengood & Weightman for respondent.

(1) A drainage district is a governmental agency which partakes of the nature of a municipal corporation. Houk v. Little River Drainage District, 248 Mo. 372, 36 S.Ct. 58, 239 U.S. 254; State ex inf. v. Albany Drainage District, 290 Mo 33, 234 U.S. 339; Wilson v. King's Drainage District, 176 Mo.App. 470, Judgment Affirmed, 257 Mo. 266. (2) The district being a municipal corporation, its expiration did not operate as a discharge of its outstanding bonds and plaintiff had the right to enforce the payment of the same by a proceeding in equity or by mandamus to compel the levy of an additional assessment. Cooley, Municipal Corporations, 116; 43 C. J. 175, pars. 171, 172; 19 C. J., sec. 30, par. 623; Peo v. Niebruegge, 244 Ill. 82, 91 N.E. 115; Lingle v. Clear Creek Drainage District, 281 Ill. 511, 118 N.E. 77; State ex rel. v. Mo. State Life Ins. Co., 65 S.W.2d 182, 186. This is the only method. It cannot be done by a long-time contract. Kansas City Power and Light Co. v. Carrollton et al.; 67 C. J. 1365, par. 994; State ex rel. v. Holt County Court, 135 Mo. 533. (3) A drainage district cannot be dissolved, or its corporate existence be permitted to expire, without the payment of its debts. Hoffman v. City of Quincy, 71 U.S. 403; Broughton v. Pensacola, 93 U.S. 266, 269. (4) Upon the expiration of the corporate existence of the drainage district, it remained a de facto corporation for the purpose of the payment of debts. The surviving members of the board of supervisors remain officers for the purpose of paying the debts of the district and disposing of its property. As such they can sue and be sued. They cannot surrender the powers of taxation given them by the Legislature until all the debts are paid. Lingle v. Clear Creek Drainage District, 281 Ill. 511, 118 N.E. 77; Payne v. First National Bank (Tex.), 291 S.W. 209. (5) The total drainage tax, from the date of the filing of the original certificate, as required by the 1909 drainage law, became a lien on all the lands in the district and remains a lien thereon until plaintiff's bonds are paid in full. Secs. 5519, 5523, R. S. Mo. 1909. (6) The drainage law in force at the time of the incorporation of the district and at the time plaintiff's bonds were issued entered into and became a part of the bond contract. Sec. 5523, R. S. Mo., 1909; City of Fort Madison v. Fort Madison Water Co., 134 F. 214; Padgett v. Post, 106 F. 600; State ex rel. v. St. Louis, Keokuk et al. Railroad Co., 130 Mo. 243, 252. (7) If legal remedies have been exhausted for the collection of drainage taxes, or if the assessments have been abandoned or remain uncollected, courts have the power to order an additional assessment against all the lands in the district for the payment of outstanding debts, and to compel the proper authorities to levy and collect the assessments. State ex rel. v. Holt County Court, 135 Mo. 533, 546; State ex rel. v. Mo. State Life Ins. Co., 65 S.W.2d 182, 186; Cooley, Municipal Corporations, 116. (8) It was the duty of the board of supervisors to levy an annual installment of tax until all bonds and indebtedness were paid in full and if the total levies proved insufficient for this purpose, to make additional levies. Secs. 5519, 5520, 5524, R. S. Mo. 1909; Session Acts 1913, p. 230, now sec. 10788, R. S. Mo., 1929. (9) (a) Defendants Jones and Staples were proper parties as being representative of all landowners in the district. This for the reason that where there are numerous parties defendant having a common interest, a few can be sued and the interests of the defendants not made parties are deemed represented by those who are parties to the record. Laundry Co. v. Helpers Union (Mo. App.), 115 S.W.2d 89; Leyden v. Owen, 150 Mo.App. 102; Picot v. Bates, 39 Mo. 292; 21 C. J. 284, pars. 284 to 330. (b) Individual landowners in the drainage district are never proper parties defendant in a suit to compel a levy of an additional tax to pay a district debt. Mississippi and Fox River Drainage District of Clark Co. v. Ruddick et al. (Mo. App.), 64 S.W.2d 306, 308; Kinney v. Eastern Trust and Banking Co. (6 U.S.C. A.), 123 F. 297, 300; Riggs v. Johnson Co., 6 Wall. 198, 18 L.Ed. 768; Murphy v. Drainage District No. 4 of Dunklin County, Mo., 17 F.Supp. 128. (10) Cases cited by appellant to the effect that the taxing power cannot be exercised by the circuit court are not in point for the reason that in none of them was involved the principle of the enforcement of a tax lien created by statute. In the instant case a tax lien was created by the laws which permitted the incorporation of the drainage district. Sec. 5523, R. S. Mo., 1909.

A. F. Harvey for appellants, Jones and Staples.

(1) There is no individual liability for drainage taxes against real estate or any other real estate taxes. There are no taxes except such as are authorized by statute, and the power to levy and collect taxes is purely statutory. In the absence of a statute authorizing two men who were at one time some years ago members of the board of supervisors of a drainage district to determine the amount of levy, and levy and collect taxes, such procedure is unknown to the law. State to the Use of Parrish, Collector, v. Young, 38 S.W.2d 1021; State ex rel. Hibbs v. McGee, 44 S.W.2d 36, 39; National Lumber & Creosote Co. v. Burrows, 284 S.W. 153; State ex rel. Davis v. Goodnow, 80 Mo 271; City of Carondelet v. Picot, 38 Mo. 125, 130; Holly v. Rolwing, 87 S.W.2d 651. (2) The amount of taxes cannot be fixed, assessed, levied or determined by a proceeding in equity in the absence of a statute authorizing such to be done. We have no such statute. Rees v. City Water Co., 19 Wall. 107-125, 22 L.Ed. (U.S.) 72; Hine v. Board of Levee Commissioners, 19 Wall. 655-661, 22 L.Ed. (U.S.) 223; Barkley v. Board of Levee Commissioners, 23 L.Ed. (U.S.) 893; Meriwether v. Garrett, 26 L.Ed. (U.S.) 197, 205-206; Thompson v. Allen County, 115 U.S. 550, 6 S.Ct. 140; Preston v. Sturges Milling Co., 32 L.R.A. (N. S., 1911) 1020, 1031. (3) There has been no annual levy of taxes. All the levies made prior to the expiration of the life of the district have been exhausted except $ 237.69, which defendants Jones and Staples do not claim as belonging to them. The general tax levy made in 1910 lapsed July 1, 1934, when the drainage district ceased to exist. Under the drainage law, annual tax levies do not become liens until the amount thereof has been determined and set apart, and the annual levy made. Hence there is no lien on either land or railroad property for any tax. McAnally v. Little River Drainage District, 325 Mo. 348, 28 S.W.2d 650; Little River Drainage District v. Jones (Mo.), 136 S.W.2d 440, 444. (4) It is claimed that because Jones and Staples were two members of the board of supervisors of the old drainage district that they can levy and assess taxes, notwithstanding the other three members of the board are deceased, and that they are de facto officers when the corporate life of the drainage district expired July 1, 1934, and there can be no de facto officers unless there is a de jure office to fill. Ayers v. Lattimer, 57 Mo.App. 78, 83; Ex parte Babe Snyder, 64 Mo. 58, 62; State v. O'Brian, 68 Mo. 53; Norton v. County of Shelby, 118 U.S. 425, 6 S.Ct. 1121. (5) Drainage districts are not municipal or private corporations nor declared to be public corporations, and such districts are legislative agencies, exercising exclusively governmental functions, and do not exercise municipal or proprietary functions and are not private corporations, or governed by the rules or law governing private corporations. State ex rel. Hausgen v. Allen, 298 Mo. 448, 250 S.W. 905; Max v. Barnard-Bolckow Drainage District, 32 S.W.2d 583, 585; State v. Wellston Sewer District, 58 S.W.2d 988, 991. (6) The statute under which this drainage district was organized, Section 8251 of the Revised Statutes of Missouri of 1899, among other things provided that the "the articles of association required to be made and signed shall state the name of the district and the number of years the same shall continue," which in this case was 25 years after its incorporation and expired July 1, 1934. This was a proper exercise of the police power of the state, so that on July 1, 1934, the governmental powers granted to the drainage district ceased and terminated. From and after that date the district had no legal existence, no officers, and could function thereafter for no purpose, could not be sued directly or indirectly, and the holder of any obligation unpaid must look to the successor of said drainage district, the State of Missouri, for any debt said district owes, if in fact it does owe any indebtedness. The statute could have provided for levying and collecting taxes to pay any indebtedness unpaid at the time of the expiration of the corporate existence of the district, but it did not do so, and the courts cannot perform the functions of the Legislature. State v. Wellston Sewer District, 58 S.W.2d 988, 991. (7) Statute saving rights against dissolved private corporation does not save rights against drainage district after dissolution. Sternberg v. Wakonda Drainage & Levee District, 33 F.2d 451. (8) A public corporation is absolutely bound to act only as directed by the Legislature. Money v. Drainage District No. 1 of Richardson Co., 274 N.W. 467. (9) Where the charter of a corporation has been repealed and all its territory and corporate property...