Jacoby v. Missouri Valley Drain. Dist.

• Decision Date: 10 March 1942
• Docket Number: No. 36877.,36877.
• Citation: 163 S.W.2d 930
• Parties: CLARK E. JACOBY, Appellant, v. MISSOURI VALLEY DRAINAGE DISTRICT OF HOLT COUNTY, MISSOURI, a Municipal Corporation; CHARLES E. SENTNEY, FRANK WALKER, A.B. CATON, GEORGE H. ALLABAC and HARRY MORRIS, Supervisors, constituting the Board of Supervisors of said District, and KATE GREEN, Treasurer of Holt County, Missouri, and FRED COTTIER, Collector of Holt County, Missouri.
• Court: Missouri Supreme Court

163 S.W.2d 930

CLARK E. JACOBY, Appellant, v. MISSOURI VALLEY DRAINAGE DISTRICT OF HOLT COUNTY, MISSOURI, a Municipal Corporation; CHARLES E. SENTNEY, FRANK WALKER, A.B. CATON, GEORGE H. ALLABAC and HARRY MORRIS, Supervisors, constituting the Board of Supervisors of said District, and KATE GREEN, Treasurer of Holt County, Missouri, and FRED COTTIER, Collector of Holt County, Missouri.

No. 36877.

Supreme Court of Missouri.

Court en Banc, March 10, 1942.

Rehearing Denied, July 28, 1942.

Appeal from Daviess Circuit Court. — Hon. Ira D. Beals, Judge.

AFFIRMED AS TO INDIVIDUAL RESPONDENTS, AND REVERSED AND REMANDED (with directions) AS TO RESPONDENT MISSOURI VALLEY DRAINAGE DISTRICT.

J.L. Milligan, C.B. Kimberly and Milligan & Kimberly for appellant.

The trial court erred in refusing to enter judgment for plaintiff and in rendering judgment for defendants when the agreed facts were that warrants sued upon were duly issued to plaintiff by defendant district and remain unpaid. R.S. 1929, secs. 10767, 10775; Wilson v. Knox County, 34 S.W. 477, 132 Mo. 387; Graves v. Drainage Dist., 134 S.W. (2d) 70; Bushnell v. Drainage Dist., 111 S.W. (2d) 946, 233 Mo. 921.

Culver, Phillip, Kaufmann & Smith for respondents.

(1) The opinion in Division No. 2 concedes the judgment must be affirmed if the decision of the Court en Banc in State ex rel. Hotchkiss v. Lemay Sewer District, 338 Mo. 655, correctly construes the applicable sections of the statutes. The Lemay case was decided January 14, 1936. There have been three sessions of the Legislature since that decision and those sections remain in force without any amendment. The Lemay case therefore must be accepted as a correct construction of those statutes of which it has become a part. Handlin v. Morgan County, 57 Mo. 114; Ex parte Carey, 306 Mo. 287; Schawacker v. McLaughlin, 139 Mo. 333; Easton v. Courtwright, 84 Mo. 27; State ex inf. Gentry v. Meeker, 317 Mo. 719; State ex rel. v. Nolte, 138 S.W. (2d) 1016. (2) The history of the drainage legislation in this State conclusively shows that the dissenting opinion in the Lemay case, adopted by a majority of the judges in Division No. 2 as its opinion, erroneously holds that the Legislature intended the preliminary expenses might exceed fifty cents per acre because it provided the excess could be paid by the benefit tax authorized by Section 10759. In so construing that section, the opinion, by judicial legislation puts back into that section the provisions of Section 6528, Revised Statutes of Missouri, 1889, Section 8262, Revised Statutes of Missouri, 1899, and Section 5519, Revised Statutes of Missouri, 1909, as amended by the Laws of Missouri, 1911, page 213, which the Legislature intended should be out and took out by repealing those sections and substituting Sections 10752 and 10759, Revised Statutes of Missouri, 1929. (3) The words of Sections 10752, 10759 and 10781, Revised Statutes of Missouri, 1929, do not justify the construction put on them by the dissenting opinion in the Lemay case. Bushnell v. Miss. Fox River Drainage Dist., 111 S.W. (2d) 946; State ex rel. Hotchkiss v. Lemay Sewer Dist., 338 Mo. 653. (4) The dissenting opinion holds that by implication the Legislature intended Section 10759 to authorize a benefit tax to pay preliminary expenses in excess of fifty cents per acre. There is no such thing as taxation by implication. 61 C.J., p. 81, sec. 10, cases collated. Nor is there any power to tax unless a finger can be put upon a statute permitting it. Leavell v. Blades, 237 Mo. 695. Nor unless the statute is clear, express and free from doubt or ambiguity. State ex rel. American Cent. Ins. Co. v. Gehner, 315 Mo. 1126. (6) The dissenting opinion construes Section 10752 as if it stood alone, and Section 10781 as if it stood alone; and holds that when so construed they are in irreconcilable conflict, and Section 10781 being last in position should stand and Section 10752 should fall. In so doing the opinion ignores the rule that both sections must be considered together and effect be given to both. So considered, there is no conflict between them. Strottman v. Railroad, 211 Mo. 227; Graves v. Little Tarkio Drainage Dist. No. 1, 134 S.W. (2d) 70; State ex rel. v. Carolene Products Co., 144 S.W. (2d) 153. (7) The fact that appellant rendered services which the district accepted does not give him a right to recover. Carter-Waters Corp. v. Buchanan County, 129 S.W. (2d) 914; Hillside Securities Co. v. Minter, 254 S.W. 188; Bernard & Co. v. Knox County, 105 Mo. 382; Bushnell v. Miss. & Fox River Dist., 111 S.W. (2d) l.c. 952; Pettis County v. Kingsbury, 17 Mo. 479. (8) Appellant was not entitled to a writ of mandamus to compel the levy of a tax to pay the warrants sued on. State ex rel. Hotchkiss v. LeMay Ferry Sewer District, 92 S.W. (2d) 704; Bushnell v. Mississippi & Fox River Drainage Dist., 111 S.W. (2d) 947. (9) The warrants sued on were issued in payment of debts which by law were payable only out of a particular fund that had been previously exhausted and which the district had no power to replenish. The warrants were therefore unauthorized and void. State ex rel. Hotchkiss v. LeMay Ferry Sewer Dist., 92 S.W. (2d) 784; Bushnell v. Mississippi & Fox River Drain. Dist., 111 S.W. (2d) 947; Watts v. Levee Dist. No. 1, 145 S.W. 129; Moody v. Cass County, 74 Mo. 307; Moody v. Cass County, 85 Mo. 477; McGee v. Larramore, 50 Mo. 425; Campbell v. Polk County, 76 Mo. 56; Campbell v. Polk County, 49 Mo. 214; William F. Mosser Co. v. Cherry River Boom & L. Co., 138 Atl. 85; Keller v. Cohen, 66 Atl. 863.

LEEDY, J.

This is an action in twenty-eight counts, on as many warrants issued to plaintiff by defendant Missouri Valley Drainage District of Holt County (hereinafter referred to as the district) in sums ranging from $14.92 to $1132.58 and aggregating $11,405.92, for services rendered by plaintiff as chief engineer of said district. The amended petition sought also the levy of an assessment to pay the indebtedness in question, and other relief. By further amendment, however, all such features were stricken, and so dropped out of the case, leaving the petition as praying merely for the judgment for the sums asked in the several counts thereof with interest. Judgment went for defendants below, and plaintiff appeals.

The cause was tried on an agreed statement of facts supplemented, on behalf of defendants, by the testimony of a single witness, the President of the Board of Supervisors of defendant district. The agreed facts, insofar as pertinent, are:

(1) That the district, containing 25,511.86 acres, was duly incorporated in the Holt Circuit Court, March 10, 1927, under the provisions of Article I, Chapter 64, R.S. '29 [Now Article I, Chapter 79, R.S. '39], and at the time of the institution of this suit, its Board of Supervisors consisted of the persons sued as such;

(2) That on May 28, 1927, the district, by written contract, employed plaintiff as its Chief Engineer;

(3) That shortly after the incorporation of the district there was duly and regularly levied a uniform tax of 50 cents per acre upon each acre of land within the district for the purposes mentioned in Section 10752, R.S. '29; that before the beginning of this suit, all of said tax (with all interest and penalties thereon) was collected and paid to the district, and all of the monies so collected were expended and paid for the purposes for which said tax was levied; and at the time each of the warrants in suit was issued, and when the same were severally presented for payment there was not sufficient money to pay any of said warrants, nor since said time has there been any money set aside for the payment thereof, nor is there now any money to pay the same;

(4) That pursuant to contract, plaintiff prepared plans and specifications and a plan for reclamation, and made the necessary surveys for the works, ditches, and embankments intended to drain and reclaim the wet and overflowed lands in said district, which were approved by the Board of Supervisors, and that plaintiff performed all of the services which were required to be performed by his contract prior to the beginning of the construction and work of reclamation, and that the warrants sued on were issued to him for his said services; that in addition to the warrants sued on, plaintiff was paid for his said services by three warrants, two for $2,000.00 each, and one for $1,000.00; one of said $2,000.00 warrants has been paid by the district and the other two have not been paid;

(5) That the Circuit Court of Holt County, from the report of the commissioners appointed to assess benefits and damages, found the estimated cost of the proposed work and improvements to be less than the benefits assessed, and accordingly, on November 19, 1928, approved and confirmed said report.

(6) That the United States of America by purchase and condemnation proceedings subsequent to the confirmation and approval of said report of said commissioners acquired title to approximately 7,675.247 acres of land lying in a body in said district for the purpose of establishing and has established a Government Game Refuge, and built permanent dams, dikes, ditches and spillways and other works on said land and collecting the water on and flowing on to said land so that practically all of said lands so acquired by it are covered with water and are unfit for cultivation or for any other purpose other than a game refuge, by reason whereof, the plan of reclamation as adopted and approved by the court was destroyed and made impossible of construction and operation; that after deducting the benefits assessed against the lands so acquired by the Government of the United States from the total benefits assessed, the costs of construction of works and improvement as set forth in the plans for reclamation materially exceed the benefits.

(7) That no contract for construction of said works of reclamation pursuant to said plans and...