Harrison and Mercer County Drainage Deist. v. Trail Creek Tp.

• Citation: 297 S.W. 1
• Decision Date: 30 July 1927
• Docket Number: No. 25800.,25800.
• Parties: HARRISON AND MERCER COUNTY DRAINAGE DIST. v. TRAIL CREEK TP.
• Court: United States State Supreme Court of Missouri

297 S.W. 1

HARRISON AND MERCER COUNTY DRAINAGE DIST. v. TRAIL CREEK TP.

No. 25800.

Supreme Court of Missouri, Division No. 1.

July 30, 1927.

Appeal from Circuit Court, Harrison County; L. B. Woods, Judge.

Action by the Harrison and Mercer County Drainage District against Trail Creek Township. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

Randall Wilson, of Bethany, for appellant.

A. G. Knight, of Trenton, and Garland Wilson, of Bethany, for respondent.

SEDDON, C.

This cause comes to this court on appeal upon the pleadings only. The petition alleges:

"Plaintiff states that at all the dates hereinafter mentioned, the Harrison and Mercer county drainage district was, and now is, a corporation duly organized as provided by the laws of the state of Missouri for 1913, and now known as article 1, c. 28, of the Revised Statutes of the state of Missouri for 1919; that after its said organization, its board of supervisors levied a tax upon all the land within its district for the benefits accruing thereto, and found necessary to pay the cost of the completion of its proposed works and improvements as shown in its plan of reclamation, and in carrying out the object of said district organization.

"Plaintiff further states that the defendant, Trail Creek township, is a municipal township, No. 64, in range 26, in Harrison county, Mo.

"That plaintiff's board of supervisors, for the year 1920, determined, ordered, and levied an annual installment tax, as is shown by the delinquent drainage tax bill hereto attached, against defendant, and its said public highways and roadways, to wit, the sum of $369.26, which said amount became due and payable on the 1st day of November, 1920.

"Plaintiff further states that chapter 119 of the Revised Statutes of the state of Missouri for 1909 was at all the dates mentioned, and now is, in force in Harrison and Mercer counties, the place where plaintiff, said drainage district, is organized and located, and said Trail Creek township aforesaid is liable for the benefits assessed and levied against the public highways and roadways hereinafter described, within said municipal township, in plaintiff's plan of reclamation, according to the increased physical efficiency and decreased maintenance cost of the roadways by reason of the protection said public highways and roadways derive from the proposed work and improvements of plaintiff's district; which said highways and roadways are described as follows, to wit: (Here follows a definite and specific description of said highways and roadways.)

"That the secretary of the board of supervisors of plaintiff's said district extended its drainage tax under the provisions of said act on a tax book for the township in which defendant's highways and roadways are located, and that said drainage tax book was certified and delivered to the township collector of said township, as is provided by said article aforesaid; that said township collector had authority to collect said tax aforesaid so levied and extended against defendant's said highways and roadways; and that said collector made diligent effort to collect the same, but the defendant failed and refused to pay said tax, or any part thereof, so levied and extended as aforesaid against said highways and roadways aforesaid.

"That said township collector thereafter made due return of the said tax book, and certified the said tax against defendant's said highways and roadways aforesaid as delinquent.

"That thereafter the secretary of plaintiff's board of supervisors certified said delinquent drainage tax to the county treasurer and ex officio collector of Harrison county, Mo., for collection, as is provided for the collection of drainage tax in counties not under the provisions of chapter 119, Revised Statutes of Missouri for 1909.

"Plaintiff further states that said ex officio collector and treasurer of Harrison county, Mo., has made due and diligent effort to collect said delinquent drainage tax due against defendant's highways and roadways aforesaid, but that the defendant has failed and refused to pay the same, and the same remains due and unpaid and is now delinquent.

"Plaintiff further states that it bases its said cause of action in this case upon the delinquent tax bill hereto attached, marked Exhibit A and made a part hereof, certified by the county treasurer and ex officio collector of Harrison county, Mo., as is provided by article 1, c. 28, of the Revised Statutes of the state of Missouri for 1919. "Plaintiff further states that by reason of the defendant permitting said drainage tax aforesaid to become delinquent and remain unpaid after the 31st day of December, 1920, the same being the one year in which said tax was levied, the same bears 2 per cent. penalty per month on the amount of said tax from the 31st day of December, 1920, until paid; that there is now due as penalty of said drainage tax against said real estate of the defendant the sum of $125.55.

"Wherefore plaintiff prays the court that it may have judgment against defendant for the sum of $369.26, the amount of said delinquent drainage tax, so levied, assessed, and extended as aforesaid against the defendant's said highways and roadways as aforesaid, and for the further sum of $125.55 penalty thereon since the 31st day of December, 1920, and that plaintiff's lien against said highways and roadways for said sums, together with the cost and expense in collecting same, including a reasonable attorney fee, to be fixed by the court and taxed as costs in this action, as is provided by article 1, c. 28, of the Revised Statutes of the state of Missouri for 1919, aforesaid, may be adjudged, declared, and enforced against said defendant aforesaid, and for such other and further orders, as to the court may seem just and proper."

Defendant (respondent here) filed the following demurrer to the petition:

"Comes now the defendant in the above-entitled cause and demurs to the petition of the plaintiff herein, and for grounds of demurrer states:

"First. That the petition of the plaintiff herein fails to state facts sufficient to constitute any cause of action against the defendant.

"Second. That the petition on its face shows that it is an attempt by the Harrison and Mercer County drainage district to collect a drainage tax and benefit assessments under the drainage law against the defendant, Trail Creek township, a municipal township, on account of roads and highways in said township, alleged to be affected and benefited by such drainage district, when under the law the said defendant is not the owner or legal custodian in any manner of the public highways in said township; that the same under the law, if subject of taxation, must be assessed and taxed against the county and not the various townships of said county.

"Third. That there is no provision of law whereby townships, such as defendant, are authorized or enabled to collect a drainage tax or any source of revenue provided by law by which such taxes may be met, and there is no contemplation of law, either expressed or implied, by which said townships are to be assessed benefit assessments or taxed for drainage purposes.

"Fourth. That by the express provisions and by clear implication any taxes, benefits, or assessments for drainage purposes against the public highways of the state must be and are authorized to be assessed against the various counties, and such benefits must be assessed and borne by the various counties of the state, and not by the townships thereof.

"Fifth. That there is no provision of law for the assessment or collection of benefits or assessments or taxes by the various townships, or enabling such townships to provide in a lawful manner for the meeting and defraying of any such tax assessment or benefit.

"Sixth. That under the law the plaintiff had no power or authority to levy or assess any tax against the public roads in the defendant township for drainage or other purposes.

"Wherefore defendant prays judgment of the court that it be discharged and for naught held, and that it recover its costs in this behalf laid out and expended."

The circuit court sustained the demurrer to the petition, and, plaintiff (appellant here) refusing to plead further, the circuit court rendered judgment dismissing the petition and assessing the costs of suit against plaintiff. Plaintiff filed timely motions in arrest of judgment and for rehearing, which motions were overruled by the circuit court, whereupon plaintiff was allowed an appeal to this court. We take jurisdiction of the appeal under section 12, article 6, of our state Constitution, because the defendant organized township is a political subdivision of the state.

I. While the question of our jurisdiction herein is not raised by the parties to this action, and although our jurisdiction is apparently conceded by the parties hereto, nevertheless, in retaining jurisdiction of this appeal upon the sole ground that defendant, Trail Creek township, is a political subdivision of the state, we take occasion to say that we' are mindful of the language used and adopted by this court en banc, in Wilson v. King's Lake Drainage & Levee District, 237 Mo. 39, loc. cit. 48, 139 S. W. 136, wherein it is ruled (and rightly so, we think) that a drainage district is not a political subdivision of the state, within the meaning of section 12, art. 6, of the Constitution. In ruling that precise question, however, the writer of the opinion in that case said:

"We are of the opinion that the words, `other political subdivision of the state,' as used in section 12, art. 6, following, as they do, the word `county,' mean such political subdivisions as may be created having power similar to those of a county, and do not refer to townships, school districts, levee districts, drainage districts, and such like minor political subdivisions of the state."

But it seems obvious to us that the learned writer...