Graves v. Little Tarkio Drain. Dist., 36734.

• Citation: 134 S.W.2d 70
• Decision Date: 13 December 1939
• Docket Number: No. 36734.,36734.
• Parties: C.D. GRAVES, ASA SHARP and CHARLES PEBLEY v. LITTLE TARKIO DRAINAGE DISTRICT No. 1, a Corporation, and JOHN PFLAUMER, JOHN SPEER, RANSOM BROWNING, LUTHER NORMAN, Members of and Supervisors of LITTLE TARKIO DRAINAGE DISTRICT No. 1, and JOHN SPEER, Secretary-Treasurer of said LITTLE TARKIO DRAINAGE DISTRICT, Appellants.
• Court: United States State Supreme Court of Missouri

134 S.W.2d 70 C.D. GRAVES, ASA SHARP and CHARLES PEBLEY
v.
LITTLE TARKIO DRAINAGE DISTRICT No. 1, a Corporation, and JOHN PFLAUMER, JOHN SPEER, RANSOM BROWNING, LUTHER NORMAN, Members of and Supervisors of LITTLE TARKIO DRAINAGE DISTRICT No. 1, and JOHN SPEER, Secretary-Treasurer of said LITTLE TARKIO DRAINAGE DISTRICT, Appellants. No. 36734. Supreme Court of Missouri. Division One, December 13, 1939.

[134 S.W.2d 73]

Appeal from Nodaway Circuit Court. — Hon. Ellis Beavers, Judge.

REVERSED AND REMANDED (with directions).

Gore & Gore and Watson, Ess, Groner, Barnett & Whittaker for appellants.

(1) The work done by Peterson constituted necessary maintenance, protection, restoration, strengthening and repairing of the work and improvements already constructed and therefore was authorized by Sections 10758, 10768, Revised Statutes 1929. Secs. 10758, 10759, 10768, 10769, 10789, R.S. 1929; 59 C.J. 995; State ex rel. v. Daues, 321 Mo. 1126, 14 S.W. (2d) 990; Dyer v. Sutherland Bldg., etc., Co., 321 Mo. 1015, 13 S.W. (2d) 1056; Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; Castilo v. State Highway Comm., 312 Mo. 244, 279 S.W. 673; Lauck v. Reis, 310 Mo. 184, 274 S.W. 827; Houck v. Little River Drain. Dist., 248 Mo. 390; Barnes v. Construction Co., 257 Mo. 175. (2) The court erred in failing to hold that this suit was barred by laches and estoppel. Secs. 10745, 10753, R.S. 1929; State ex rel. Brown v. Westport, 116 Mo. 594; State v. Leatherman, 38 Ark. 81; State ex inf. Attorney General v. School District of Lathrop, 314 Mo. 315; Whitsett v. Carthage, 270 Mo. 286; State ex inf. Shartel v. Mo. Utilities Co., 53 S.W. (2d) 394; City of Mountain View v. Farmers Tel. Exchange, 294 Mo. 623; Wilson v. King's Lake Drain. & Levee Dist., 257 Mo. 288; State ex rel. Mc Williams v. Bates, 235 Mo. 262; Bartlett Trust Co. v. Elliott, 30 Fed. (2d) 700. (3) The drainage district has power to incur indebtedness in excess of the income and revenue provided for the year in which indebtedness is incurred. State ex rel. Scott v. Trimble, 308 Mo. 134; State ex rel. Gentry v. Curtis, 319 Mo. 316, 4 S.W. (2d) 473; State ex rel. Webster Groves Sanitary District v. Smith, 115 S.W. (2d) 816, 87 S.W. (2d) 147; Hardwicke v. Wymore, 228 S.W. 757; Hawkins v. Cox, 66 S.W. (2d) 540; State ex rel. Drain. Dist. v. Thompson, 41 S.W. (2d) 945; Birmingham Drain. Dist. v. Chicago, M. & St. P. Railroad Co., 266 Mo. 68, 178 S.W. 893; Embree v. Road District, 257 Mo. 610, 166 S.W. 282; Meier v. St. Louis, 180 Mo. 408, 79 S.W. 955; State ex rel. v. Bates, 235 Mo. 295; State ex rel v. Medicine Creek Drain. Dist., 284 Mo. 636; State ex rel. Chamberlain v. Drain. Dist., 311 Mo. 326; State ex rel. Ashby v. Medicine Creek Drain. Dist., 284 Mo. 636; Road District v. Willow Drain. Dist., 199 S.W. 716; Cunningham Realty Co. v. Drainage District No. 6, 40 S.W. (2d) 1097. (4) The court erred in holding that the 1938 maintenance tax which defendant drainage district could levy was confined to its needs for that year and that all of the levy of the 1938 maintenance in excess of $500 was illegal and without authority. Secs. 10789, 10844, R.S. 1929. (5) The court erred in enjoining the collection of a part of the maintenance tax levied in 1938, because the allegation that the district intended to use part of the proceeds for the payment of the allegedly illegal warrants is no reason for enjoining collection of the tax. Southworth v. Mayor of Glasgow, 232 Mo. 128; People v. Welch, 252 Ill. 167, 96 N.E. 991; Hawkins v. Cox, 66 S.W. (2d) 538.

DuBois & Miller and Livengood & Weightman for respondents.

(1) The Legislature has provided a scheme whereby drainage districts may issue tax anticipation warrants for maintenance work. The board of supervisors did not attempt to comply with this law. Laws 1929, pp. 190-193; Sec. 11024, R.S. 1929. The Legislature has also provided for an amended plan of reclamation where necessary. The board of supervisors did not attempt to comply with this law. Sec. 10793, R.S. 1929. The drainage law is a code unto itself. In re Mississippi & Fox River Drainage District v. Ackley, 270 Mo. 157; State ex rel. v. Norborne Drainage District, 290 Mo. 131. A drainage district has only such taxing powers as are given to it by the Legislature — such powers are strictly construed and a departure therefrom renders any tax levied by the district and not in conformity with the law invalid. Birmingham Drain. Dist. v. C., B. & Q. Ry. Co., 202 S.W. 404; Bushnell v. Mississippi & Fox River Drain. Dist., 111 S.W. (2d) 946; State ex rel. Sturdivant Bank v. Little River Drain. Dist., 68 S.W. (2d) 674. (2) A maintenance tax may be used for maintenance purposes only. It cannot be used for the purpose of building a new drainage district as was attempted in this case. Bushnell v. Mississippi & Fox River Drain. Dist., 111 S.W. (2d) 946; City of Kansas v. Hannibal & St. Joseph Railroad Co., 81 Mo. 293; Keane v. Strodtman, 323 Mo. 167, 18 S.W. (2d) 898. (3) The contract entered into with Petersen was done without authority of law. All warrant holders are charged with notice of the powers given by statute to the defendant board of supervisors and therefore are charged with notice of the invalidity of the warrants. State ex rel. Watkins v. Macon Co., 68 Mo. 29; Cheeney v. Brookfield, 60 Mo. 53. (4) No amended plan of reclamation was ever filed by the board of supervisors, as is required by Section 10769, Revised Statutes 1929. (5) The total of all taxes which may be levied by a drainage district cannot exceed the total amounts of benefits originally assessed. In this case, it is admitted that the warrants outstanding in the sum of $39,054.49 are in excess of all benefits originally assessed, and are in excess of all anticipated revenue of the years wherein they were issued. Sec. 10793, R.S. 1929; State ex rel. Sturdivant Bank v. Little River Drain. Dist., 68 S.W. (2d) 671; State ex rel. v. Thompson, 41 S.W. (2d) 941. Many of the cases relied upon by appellant are not in point for the following reasons: They were based upon the law in force in 1909. In Laws 1913, page 232, section 47, page 261, said law was amended with this proviso constituting the amendment "Provided the total levies of such tax does not exceed the total amount of benefits assessed." (6) A maintenance tax is limited to ten per cent of the original cost of construction. Secs. 10789, 10755, 10844, 10945, R.S. 1929; Cunningham Realty Co. v. Drainage District No. 6, 40 S.W. (2d) 1097. The term "Current Expenses" means current expenses. It does not mean expenditures for years other than the year for which the tax is levied. State ex rel. v. Payne, 151 Mo. 673; State ex rel. Clinton County v. Hannibal & St. Joseph Railroad Co., 87 Mo. 236; State ex rel. v. St. L.-S.F. Ry. Co., 296 Mo. 524. (7) There is no estoppel in this case. Appellants cannot possibly suffer any injury or loss by reason of the adverse decision and therefore cannot plead estoppel. Citizens Bank v. Burrus, 178 Mo. 729; Bouder v. Colvin, 170 Mo. App. 55; Fisher v. Ely & Walker Dry G. Co., 46 S.W. (2d) 902. There are none of the elements of estoppel present in this case. State ex inf. v. Mo. Utilities Co., 96 S.W. (2d) 607, 106 A.L.R. 1169; Frankford Exchange Bank v. McCune, 72 S.W. (2d) 155; Olbert v. Key, 93 S.W. (2d) 1048; Hamilton v. North East Mut. Ins. Assn., 116 S.W. (2d) 159. Neither is there any laches. Beals v. Garden City, 50 S.W. (2d) 179; 21 C.J., p. 210, sec. 211; State v. Coon, 295 S.W. 822; Carlin v. Bacon, 16 S.W. (2d) 46.

DALTON, C.

This is a proceeding in equity against The Little Tarkio Drainage District No. 1 (hereinafter referred to as the District), its officers, the county collector, and certain warrant holders (1) to declare said warrants, as a class, as issued by the drainage district, to be null and void; (2) to restrain defendants from levying any future taxes to pay said warrants; and (3) to enjoin the collection of part of the 1938 maintenance tax as levied by the district. The plaintiffs were three landowners and taxpayers of the district. Three warrant holders were made defendants on the theory that they represented all warrant holders, as a class, in this litigation. From an adverse judgment the district and its officers have appealed.

Respondents' position is that the improvements for which the warrants were issued were not within the original plan of reclamation of the district, or any amendment thereof; that there were no funds in the hands of the district to pay for the particular improvements when started or while under construction; that the warrants issued therefor, and protested, were without authority of law; that the district officers planned to pay illegally the said warrants out of future annual maintenance levies; and that maintenance taxes in excess of $10,000 had been levied for 1938, while current maintenance and expenses did not exceed $500. Appellants' answer admitted

134 S.W.2d 74

that the system of drainage as constructed and in existence prior to the issuance of the warrants was not in accordance with the original plan for said district; but alleged that the system, as it existed, had been constructed with the full knowledge of plaintiffs, without objection; and that the then existing plan of reclamation had been in existence many years. The answer then pleaded laches and estoppel against plaintiffs by reason of said facts and the lapse of time since the changes were made, and set up the further fact that plaintiffs had voluntarily accepted the benefits of the improvements with full knowledge of all facts.

There is little dispute as to the facts in this case. The district was organized by the Circuit Court of Holt County, June 1, 1909, for the purpose of reclaiming about 5600 acres of land in said county. The total amount of all benefits originally assessed against all lands in the district was $102,922.70. In 1910 approximately $55,000 was spent for original construction. In...