Drainage Dist. No. 1. v. Bates County

• Decision Date: 01 December 1919
• Docket Number: No. 21586.,21586.
• Citation: 216 S.W. 949
• Parties: DRAINAGE DIST. NO. 1 OF BATES COUNTY v. BATES COUNTY.
• Court: Missouri Supreme Court

216 S.W. 949

DRAINAGE DIST. NO. 1 OF BATES COUNTY v. BATES COUNTY.

No. 21586.

Supreme Court of Missouri, Division No. 1.

December 1, 1919.

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

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

Gardner Smith, W. 0. Jackson, and D. C. Chastian, all of Butler, for appellant.

T. W. Silvers, J. A. Silvers, and W. B. Dawson, all of Butler, and E. B. Silvers, of Kansas City, for respondent.

SMALL, C. I.

This is a suit for the collection of certain installments of assessments for benefits to the public roads in the drainage district against Bates county. It is the second appeal by the plaintiff. On the first trial the circuit court sustained a demurrer to the petition on the ground that it failed to state a cause of action. This court reversed the ruling of the lower court, and held the petition sufficient. Our opinion was delivered by Graves, J., and is reported in 269 Mo. 78, 189 S. W. 1176. After the cause returned to the circuit court, the defendant filed an amended answer, consisting of a general denial, and setting up certain objections to the validity of the taxes sued for, which, so far as insisted on in this court, will be referred to in the course of the opinion.

On the trial of the case, the defendant introduced no evidence, but the plaintiff introduced evidence, consisting of documents and records supporting all of the material allegations of the petition, unless respondent's objections thereto are well taken. We shall refer to such portions of the evidence as pertain to such objections.

The order of the county court of June 20, 1906, dividing the assessment or apportionment to the county into installments, was as follows:

"* * * The court * * * doth determine and order that each and every tract of land and corporate road and railroad * * * is hereby assessed with a fund as set out in the report of the engineer and viewers * * * as heretofore confirmed by the court.

"It is further ordered that said assessments * * * be placed on the tax book for said drainage district * * * against the lands, corporate roads and railroads, respectively, so assessed, and that said principal sum, with annual interest thereon, be paid in 18 annual installments at the same time each year that the ordinary state and county taxes are due and payable, and that said assessments respectively bear interest at the rate of 6 per cent. per annum on the principal sum so assessed and remaining unpaid each year. It is further ordered that the principal sum so assessed against each tract of land, public and corporate road, and railroad in said district shall be paid in installments at the following rate per annum on such principal sum, to wit: For the year 1907, 1 per centum of each such assessment,"

and so on, stating the per centum of each such assessment for each of the 18 years to and including 1924.

There was also an entry of an order by the county court made August 8, 1905, "reciting the proper publication of notice, etc., and that more than two-thirds in quantity of the owners of the land to be affected by the proposed drainage are in favor of the construction of the work as petitioned for, and finding that the proposed ditch and improvements petitioned for are necessary for agricultural and sanitary purposes, and that they would be of public utility and conducive to the public health, convenience, and welfare, and would prevent overflows. This order was in due form, and reserves the appointment of engineer and viewers for the future."

The evidence further showed that the roads in the drainage district for which the benefit assessments sued for were made had been opened and used by the public for many years prior to such assessment, but some of them had been laid out by the township board, and some of the older ones had not, but the public had used them all for more than 10 years.

The case was tried by the court without a jury, and the court found for defendant, and against plaintiff, and rendered judgment accordingly.

Plaintiff duly appealed to this court.

II. On the former appeal, this court said (269 Mo. loc. cit. 84, 189 S. W. 1176):

(1) "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 a general judgment against the county for these assessments made for conceived benefits to the public roads of the county. * * *"

(2) "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 respond by a general judgment to be paid out of funds in the general treasury. * * *"

(3) Benefits, so far as a public road is Concerned, are not assessed against the public road, but are apportioned to the county 269 Mo. 86, 189 S. W. 1178. "* * * The right created in favor of the drainage district, so far as public roads are concerned, is one against the county, and not against the public roads." 269 Mo. 88, 189 S. W. 1179. "* * * In the case at bar, the statute ([Rev. St. 1909], § 5591), authorizes the benefits accruing to public roads to be charged to the county. There is no adequate remedy provided, and the usual remedy would be an action, as here, against the county, C and * * * this action is properly brought for a general judgment against the county. * * *" 269 Mo. 89, 189 S. W. 1179.

(4) "Nor should the demurrer have been sustained because the assessments sued for were barred by the statute of limitations. The general rule in this state is that the statute does not begin to run until the tax has become delinquent under the law. State ex rel. v. Wilson, 216 Mo. 291 . These assessments apportioned to Bates county would become delinquent on December 31st each year. The statute reads: `The said tax shall become delinquent if not paid on or before the thirty-first day of December of each year, and when so delinquent shall bear interest at the rate of one per cent. per month until paid, and the collector shall bring suit for all delinquent assessments or installments thereof, and interest thereon, within six months after an assessment or installment thereof becomes delinquent.' It is urged, because this portion of section 5599, above quoted, says the collector shall bring suit within six months, that therefore the action is barred after that time. The words should not be so construed. * * * With this point out of the way we have not considered whether or not one or more installments may not be barred, because the demurrer is general and goes to the whole petition, and as to most of the items there is no bar, under our 5-year statute of limitations. It is suggested that at least one item is barred, and, if that is so, and the matter is properly raised, it can be eliminated on the trial. The judgment nisi is reversed, and the cause remanded." 269 Mo. 90, 91, 189 S. W. 1180.

What we decided on the former appeal is not open to further controversy on this appeal, and if it were we are entirely satisfied with the opinion rendered and conclusions reached at that time.

III. It is contended by learned counsel for respondent that as section 5578, R. S. 1909, only gives the county court power to cause drainage improvements to be made, such as those upon which these assessments are based, "when necessary" for certain drainage purposes, there must be an affirmative statement on the records of the county court of the necessity of the proposed improvement for such purposes.

It is true that the county court is a court of limited jurisdiction, and it is a general rule that it cannot act unless its records affirmatively show all jurisdictional facts made necessary to its power to act. (Although this rule is somewhat shaken as applied to drainage tax cases by State ex rel. v. Wilson, 216 Mo. 215, 115 S. W. 549.) But there can be no question that this rule may be altered by statute. There is no complaint that the petition, as required by section 5579, R. S. 1909, did not set "forth the necessity therefor," but the complaint is that the court in its order initiating the improvement and assessment did not do so. This is not required, because section 5584, R. S. 1909, provides what the record shall recite in this respect, and that is, upon the hearing of the second report of the viewers, "If the county court shall find that the proposed ditch * * * is necessary for sanitary or agricultural purposes, or would be of public utility or conducive to the public health, convenience or welfare, it shall cause to be entered upon the record of the court such finding, and an order reappointing," etc., to lay out and proceed with the `work shall be made. The statute having expressly stated what facts the court's record shall state to give it power to act and proceed with the improvement, it is not necessary for the record to state other facts. "Expressio unius est exclusio alterius." The evidence set out, supra, shows that the recitals on the records of the county court complied with said section 5584. We must therefore rule this point against the respondent.

IV. It is next objected that the statute limits the charge against the county to benefits to county roads, and that by reason of the township organization of Bates county the roads were township roads. The statute, said section 5591, provides:

"When any ditch * * * 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 * * * controlling the same, the same proportion of the costs * * * in proportion to the benefits received as to private individuals."

The words "county, or state or free turnpike road," which we have...