Drainage Dist. No. 1 of Bates County v. Bates County

Decision Date16 December 1916
Docket NumberNo. 19240.,19240.
Citation269 Mo. 78,189 S.W. 1176
PartiesDRAINAGE DIST. NO. 1 OF BATES COUNTY v. BATES COUNTY.
CourtMissouri Supreme Court

Appeal from Circuit Court, Bates County; Charles A. Calvird, Judge.

Action by the Drainage District No. 1 of Bates County against Bates County. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Thos. J. Smith, of Butler, and W. T. Rutherford, Asst. Atty. Gen., for appellant. De Witt C. Chastain, of Butler, for respondent.

GRAVES, P. J.

In the brief here the plaintiff (appellant) very fairly outlines the case thus:

"This is a suit by drainage district No. 1 of Bates county against said county to recover certain installments of benefits assessed against said county for benefits accruing to the public roads of the county within the district. The district was organized under what is commonly known as the `County Court Law,' now article 4, c. 41, R. S. Mo. 1909, and amendments thereto. The proceedings were had in the county court of said county, and the order of incorporation was made on February 7, 1906. Viewers and an engineer were duly appointed to determine the character and location of the improvements necessary to reclaim the lands in said district and assess the benefits that would thereby accrue to the lands and public roads therein, and report thereon to the county court. A report was duly made by the viewers and engineer, and afterwards confirmed by the county court, whereby benefits accruing to the county were assessed in the sum of $8,993 to pay for executing the plan of reclamation. Bonds were issued in the sum of $540,000 to pay the expenses of making the necessary improvements. The assessments against the lands in the district and Bates county were by order of the court made payable in 15 annual installments bearing interest at the rate of 6 per centum per annum. Afterwards said district was reorganized under what is commonly known as the circuit court law (section 52, Laws 1913, p. 263). These installments of benefits, if not paid on or before the last day of December of each year, become delinquent and draw 1 per centum interest monthly. Bates county has refused to pay the assessments for the years 1908 to 1913, both inclusive. To appellant's petition respondent filed a general demurrer, which the court sustained. Appellant refused to plead further, and its petition was ordered dismissed, and appellant appealed."

It should be added, in order that things be made plain, the petition seeks to recover a general judgment against the county, and does not seek to enforce a lien against the public roads involved. The prayer of the petition, which is as comprehensive as the petition reads:

"Wherefore, the premises considered, the plaintiff prays judgment against the defendant, Bates county, for the aggregate amount of said assessments, with interest thereon from the respective dates when they became due and payable at the rate of 1 per cent. per month, and for plaintiff's costs in this behalf expended."

We make this clear because it simplifies issues, and eliminates a disputed question in this court. Construction Co. v. Railroad, 240 Mo. 650, and loc. cit. 656, 144 S. W. 1086. Points raised will be noted in the opinion.

I. It is said in defendant's brief, "The public roads are not subject to sale under execution," and for that reason the plaintiff is not entitled to a judgment enforcing the tax bill pleaded in the petition. This question, if it were in the case, would be an interesting one, because this court, when the question was last before us, was much divided. Construction Co. v. Railroad, 240 Mo. 650-656, 144 S. W. 1086. Personally I adhere to the views expressed in the dissent in that case. That dissent is opposed to the views expressed in Construction Co. v. Wabash Ry. Co., 206 Mo. loc. cit. 189, 104 S. W. 67, 12 L. R. A. (N. S.) 112, 121 Am. St. Rep. 649, 12 Ann. Cas. 630, cited by appellant. In other words, I am of the view that public policy, precludes a judgment to enforce a lien against a segment of a public highway or a railroad. But that question is not really in this case. The petition in this case does not seek such a judgment, but, on the contrary, seeks a general judgment against the county. Plaintiff does not ask for a lien or the enforcement of a lien. Under the instant petition the only question is whether or not the plaintiff is entitled to a general judgment against the county for these assessments made for conceived benefits to the public roads of the county.

II. Nor need we stop to debate the question as to whether or not the Legislature may authorize the collection of these special assessments by a general judgment, payable out of the general revenue of the county. Such assessments are not "taxes" in the general acceptation of that term, nor in the legal acceptation of that term. They are in fact and in law assessments made for benefits received by the property by reason of a public improvement. Much public property is exempted from ordinary taxes, but this does not argue much here. In our judgment the Legislature could say that public property may be benefited by public improvements, and could further say that for such benefits an assessment should be made, and the municipality be made to respondent by a general judgment to be paid out of funds in the general treasury. Black, P. J., in City of Clinton v. Henry County, 115 Mo. loc. cit. 570, 22 S. W. 496, 37 Am. St. Rep. 415, so concedes. In that case, he, after reviewing our case law, and after holding that special assessments, under our law, can only be collected by enforcing the lien against the property, adds:

"According to those adjudications, proceedings to enforce special tax bills are in the nature of proceedings in rem, and compulsory payment of the judgment can only be by a sale of the assessed property. As public property like that here in question cannot be sold on general or special execution; and, as the Legislature has provided no other remedy than that of enforcement of the lien, it is quite evident that the statute in question does not apply to or include property owned by a county and used for governmental purposes. It is true the cases last cited were all suits against private property owners; and, as it is within the power of the Legislature to make property devoted to public uses liable for local assessments, and as it is contrary to public policy to permit public property to be sold, we may and do concede that the Legislature can provide for the payment of local assessments against public property out of the general treasury."

That case was a carefully considered one, and whilst the suit, unlike the one at bar, did not seek a general judgment, yet the language used states the good sense of the thing, and, in our judgment, is the law.

The only and vital question in the case at bar is whether or not the Legislature as to these assessments against a county has provided a right and a remedy in favor of the drainage district, which will authorize a general judgment, against the county, and one enforceable by general execution or other legal means, excluding, of course, the enforcement of a lien against the public roads, Of that question next.

III. A further proposition urged is not troublesome. In appellant's brief it is said:

"Whenever the statute or organic law creates a right, but is silent as to the remedy, the party entitled to the right may resort to any common-law action which will afford him adequate and appropriate means of redress."

The foregoing is the generally accepted doctrine. The question in this case is, What right has been created by the Legislature? Assessments of benefits and their methods of enforcement are purely creatures of statutes. So whilst cases from other states may enlighten us as to the construction to be given to our own statutes, when such cases have arisen under similar statutes, yet primarily we must seek the right for a general judgment for such assessment from the terms of our own statutes. If these give no such right, then we cannot read it into them. If the Legislature has failed to give the right, we cannot give it, for our duties are judicial, and not legislative. We are again driven to the question, What right has the Legislature given these drainage districts to collect special assessments by a general judgment?

IV. Upon the question of the statutory right counsel for appellant cite us to section 5591, R. S. 1909, which reads:

"When any ditch established under the provisions of this article drains, either in whole or in part, or benefits any public or corporate road or railroad, the viewers shall apportion to the county, if a county or state or free turnpike road, or if a corporate road or railroad, to the company owning, operating or controlling the same, the same proportion of the cost of location and construction of the improvement in proportion to the benefits received as to private individuals."

On the other hand, counsel for respondent cite us to section 5599, R. S. 1909, the applicable portion of which reads:

"The assessment as made by the viewers and confirmed by the court, against all lots and parcels of land, and all public or corporate roads and railroads, benefited by the ditch * * * shall from the date of such confirmation of the report of the engineers and viewers, until paid, constitute a lien, * * * and shall be collected, in the same manner as state, county and school taxes upon real estate are collected and...

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