Elsberry Drainage Dist. v. Winkelmeyer

• Decision Date: 02 June 1919
• Docket Number: No. 19583.,19583.
• Citation: 278 Mo. 268,212 S.W. 893
• Parties: ELSBERRY DRAINAGE DIST. v. WINKELMEYER et al.
• Court: Missouri Supreme Court

212 S.W. 893

278 Mo. 268

ELSBERRY DRAINAGE DIST. v. WINKELMEYER et al.

No. 19583.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from Circuit Court, Lincoln County; E. B. Woolfolk, Judge.

Action by the Elsberry Drainage District against Christopher Winkelmeyer and others. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Reversed and remanded.

O. H. Avery and Wm. A. Dudley, both of Troy, for appellant.

Creech & Penn and Sutton & Huston, all of Troy, for respondents.

BLAIR, P. J.

This is an appeal from a judgment on demurrer to the petition in a suit begun to collect drainage taxes. The petition contained two counts—one for a tax imposed to pay organization and preliminary expenses (section 11, p. 238, Laws 1913), and one to recover an annual installment tax (section 19, p. 243, Laws 1913) levied by the board of supervisors in the fall of 1914.

I. The board of supervisors, as soon as elected and qualified, on September 13, 1914, levied the tax under section 11 and certified it to the collector. This tax was "due and payable as soon as assessed," and, not being paid, became delinquent "by December 31 of the year in which" it was levied, to wit, 1914. We discover no defect in the count based on this assessment, and respondent does not contend there is any. He asserts this count was overlooked. The record shows simply that the demurrer was sustained to the petition. The judgment on this count is wrong and cannot stand. The tax became due and collectible in 1914 by plain provision of the statute.

II. The count for the annual installment presents a different question. The decree confirming the amended report of the commissioners was rendered September 2, 1914. The general levy of the total tax (section 18, p. 242, Laws 1913) thought to be necessary for the completion of the work was not made until September 30, 1914. The drainage tax book was thereafter made up as the same section requires. Subsequently (section 19, p. 243, Laws 1913) the board levied an annual installment tax and certified this to the collector on November 5, 1914. The question on this branch of the case is whether, in the circumstances, this levy of an annual installment tax for 1914 can be enforced as a tax for that year, collectible in that year, and delinquent December 31, 1914.

This system of organizing drainage districts had its origin in 1879. Section 6207 et seq., R. S. 1879. Under section 6218, R. S. 1879, it was provided that, as soon as the district hail been organized, the board of supervisors, in order to pay all expenses, including cost of survey, construction, maintenance, and administration, might "order the assessment of a tax, not exceeding fifty cents on each acre of land in the said district, * * * for each and every year, and until no further expenditure of money in that behalf shall be necessary." This tax was required to be certified to the clerk of the county court and by him extended on the general tax book like other taxes and collected by the collector of the county. This section, except for the assessment, adopted the general taxing machinery in use under the general law. State ex rel. v. Angert, 127 Mo. loc. cit. 463, 30 S. W. 118; Drainage Dist. v. Daudt, 74 Mo. App. loc. cit. 585. Under this statute the taxes were extended and the tax book delivered to the collector within 90 days after the correction of the book, which was made immediately after the county board of appeals and the state board of equalization acted, usually in April. Sections 6671-6676, 6748, R. S. 1879.

It is clear the first assessment under section 6218 could not go on the tax book, unless it was certified to the county clerk prior to the time he was required to deliver that book to the collector. The conclusion must be that section 6218 contemplated that the first 50 cent per acre assessment was to be extended on the tax book, which was made up and certified by the county clerk to the collector next after the assessment was made by the board of supervisors. Had section 6218 been in force in 1914, there can be no doubt a levy after September 30th of that year, as in this case, would not have been collectible before the fall of 1915. There would have been nothing upon which to base an earlier collection. In other words, section 6218 would not have empowered the board to make an assessment in October or November, 1914, which could have been the basis of a tax collectible in that year. Section 6218 remained unchanged until 1905. Section 6528, R. S. 1889; section 8262, R. S. 1899. Section 8263b (Laws 1905, p. 199), which amended section 8262, R. S. 1899, provided that, as soon as the decree confirming the report of the commissioners had been filed in the office of the county clerk, the board of supervisors should levy upon benefited lands a tax equal to the expense of organization and preliminary work and estimated cost of construction, administration, etc., and certify this levy to the county clerk, whose duty it became to record it. Section 8263b (Laws 1905, p. 200) closed with that provision. Section 8263c began thus:

"The said board of supervisors shall annually thereafter determine, order and levy the amount of the installment of the tax, named in the next preceding section, which shall become due and be collected during said year at the same time that state and county taxes are due and collected, which said annual installment * * * shall be evidenced and certified by the said board not later than March 1st of each year to the county clerk," etc.

The form of the board's certificate is set out and contains the following:

"The said installment of tax shall be collectible and payable the present year at the same time that state and county taxes are due and collected."

The clerk was required to record the certificate in a drainage district book, and to set out therein the names of owners, description of lands, and amount of the installment, and to certify this as "true copies of the certificates of total and the annual _______ drainage district installment tax for the year A. D. 190—, and," etc. This certified record the clerk was required to deliver "each year to the collector" at the time the collector commenced the collection of state and county taxes. Thenceforward the act retained in force the provisions of the general revenue concerning collection of taxes. Section 8263g provided that the tax was to become delinquent December 31st of the year for which said taxes were levied.

The principal change made by this act, affecting the question in this case, is the omission of the requirement that the county clerk should extend the drainage tax on the general tax book. For this it substituted the requirement that the clerk should make out a separate tax book and extend the taxes thereon. It is apparent that the act of 1905 dealt with calendar years. It is certain it required the board to certify the tax to the county clerk by March 1st, and required him to make up the drainage tax book thereafter and by the time the collector commenced the collection of state and county taxes. The time for the extension of taxes by the clerk was fixed definitely, as it had been under the former law. The difference was merely in the book upon which the extension was to be made. Under this act a levy of an installment made in October by a district which had not earlier reached a stage in organization in which it could make such levy, could not have been certified to the clerk until after the time the collector was required to begin his collections of state and county taxes. Under that act, when a levy made in October or November was certified to the clerk "by March 1st," it would have been the clerk's duty to make up a tax book for the calendar year following the levy. This is clear from the provisions of the act which have been quoted.

The acts of 1909 (section 5519 et seq., R. S. 1909) and of 1911 (Laws 1911, p. 213 et seq.) made no changes which materially affect the question in this case. Section 18 of the act of 1913 (Laws 1913, p. 242) requires that the board of supervisors, after the recording of the decree of confirmation of the amended commissioner's report, shall, without unnecessary delay,...