Harrison & Mercer County Drainage District v. Trail Creek Township

• Decision Date: 30 July 1927
• Docket Number: 25800
• Citation: 297 S.W. 1,317 Mo. 933
• Parties: Harrison & Mercer County Drainage District, Appellant, v. Trail Creek Township
• Court: Missouri Supreme Court

297 S.W. 1

317 Mo. 933

Harrison & Mercer County Drainage District, Appellant, v. Trail Creek Township

No. 25800

Supreme Court of Missouri

July 30, 1927

Appeal from Harrison Circuit Court; Hon. L. B. Woods Judge.

Reversed and remanded.

Randall Wilson for appellant.

(1) Sec. 4390, R. S. 1919, gave the appellant the right to assess benefits against public roads, and such assessments against public property are proper. City ex rel. v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 560; Mullins v. Cemetery Assn., 239 Mo. 689; Drainage District v. Bates County, 269 Mo. 78; Platte River Drain. Dist. v. Andrew County, 278 S.W 387; Grimes v. Coe, 102 Ind. 406; Young v Wells, 97 Ind. 410. (2) Sec. 4399, R. S. 1919, provides the remedy by which drainage districts may enforce the collection of benefit assessments against lands and other property, but it does not provide any remedy whereby a drainage district can enforce the collection of benefit assessment against public roads or railroad right-of-way or railroad ways, nor does any other section of the Circuit Court Drainage Law give a remedy for the collection of such benefit assessment. Art. 1, Chap. 28, R. S. 1919. (3) Where a right is created by statute, but no statutory remedy is provided, then resort may be had to any appropriate remedy known at common law. Drainage District v. Bates County, 269 Mo. 78, 85; Householder v. Kansas City, 83 Mo. 488; Cummings v. Wynn, 89 Mo. 51. (4) If the Legislature allows special benefit assessments against public property, the municipality can be made to respond therefor by a general judgment. City ex rel. v. Henry County, 115 Mo. 557; Drainage District v. Bates County, 269 Mo. 84; Platte River Drain. Dist. v. Andrew County, 278 S.W. 387. (5) The defendant is the legal custodian of the public highways, township public roads, within its boundaries. Art. 12, Chap. 98, R. S. 1919. It is the duty of the township to keep up the township roads. Benefits should be paid for by the party whose duty it is to keep up the public improvements. Platte River Drain. Dist. v. Andrew County, 278 S.W. 387. (6) Townships are authorized to assess and collect taxes for township purposes, included in which purpose is the maintenance of township roads. Secs. 13216, 13221, 13232, 13234, 13250, R. S. 1919. In addition, the Constitution authorizes a special levy by townships for road and bridge purposes. Sec. 22, Art. 10, Mo. Constitution. (7) There is no expressed or implied provision, that taxes, benefits or assessments for drainage purposes against the public highways of a township must be and are authorized to be assessed against the various counties. The taxes should be assessed against the parties whose duty it is to maintain the same. It is the duty of the township to keep up the township roads. Sec. 4390, R. S. 1919; Platte River Drain. Dist. v. Andrew County, 278 S.W. 387. (8) It is lawful for the township to meet and defray these taxes from township funds. Sec. 13216, R. S. 1919.

A. G. Knight and Garland Wilson for respondent.

(1) Where the tax assessed is to be collected by the enforcement of a lien against the property and such a remedy is inapplicable on account of the nature of the property, there is no right given against the property itself. City of Clinton to use v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 561; Drainage Dist. v. Bates County, 269 Mo. 78. (2) In order for any right to be given for the collection of a drainage tax from any municipal subdivision of the State by reason of the benefit accruing to public property by a suit to secure a general judgment, there must be a clear provision to that effect. City of Clinton to use v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 561; Drainage Dist. v. Bates County, 269 Mo. 78. (3) There is nothing in the drainage law creating a right against a township on account of benefits assessed against public roads therein. (4) If there is any liability by reason of benefits assessed against public roads by drainage districts, the liability is on the part of the county, not the separate township therein. Drainage District v. Bates County, 269 Mo. 78; Drainage District v. Andrew County, 278 S.W. 387.

Seddon, C. Lindsay, C., concurs: Ellison, C., not sitting.

OPINION

SEDDON

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 & 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, Chapter 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, number sixty-four (64), in Range twenty-six (26), in Harrison County, Missouri.

"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 first 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, Missouri, 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 1919.

"Plaintiff further states that said ex-officio Collector and Treasurer of Harrison County, Missouri, 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, Missouri, as is provided by Article 1, Chapter 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 two per cent penalty per month on the 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, Chapter 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:

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