Labaddie Bottoms River Protection Dist. v. Randall
| Decision Date | 23 June 1941 |
| Docket Number | No. 37259.,37259. |
| Citation | 156 S.W.2d 713 |
| Parties | LABADDIE BOTTOMS RIVER PROTECTION DISTRICT OF FRANKLIN COUNTY, a Corporation, Plaintiff-Respondent, v. LILLIAN I. RANDALL, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. — Hon. R.A. Breuer, Judge.
AFFIRMED.
Staunton E. Boudreau, L.H. Breuer and Thos. J. Noonan for appellant.
(1) Plaintiff (respondent) "Labaddie Bottoms River Protection District" has no corporate existence as a "Levee District" corporation under what is now Article VI, Chapter 64, Revised Statutes of Missouri 1929, Sections 10902-10905, providing for "Organization of Levee Districts by Circuit Courts." (a) It is the legislative intent and command as expressed in the title to said article VI, chapter 64, and throughout the several sections thereof, that every "levee district" organized thereunder must bear as a part of its corporate name its identification as a "levee district" in those words. Chap. 64, Art. VI, R.S. 1929; R.S. Mo. 1929, secs. 10902, 10904, 10905, 10906, 10910, 10914, 10918, 10919, 10921, 10922, 10926, 10942, 10950, 10951, 10952, 10958. (b) It has been the universal construction of said Article VI, Chapter 64, and practice under it by the bar and courts in petitioning for and in decreeing incorporations of levee districts under them, to identify and distinguish them from other public corporations organized under other statutes, by including as a part of their corporate name their identification as "Levee Districts" by those words. This is true as to other statutes of the same general character. 43 C.J., p. 102, sec. 56; Wilcock, Mun. Corps., p. 35; Bushnell v. Miss. & Fox River Drain. Dist., 233 Mo. App. 921, 111 S.W. (2d) 946. (2) On the facts stated in plaintiff's amended petition on which the case was tried and under the plaintiff's evidence, as a matter of law, plaintiff abandoned its "original plan for reclamation" and abandoned all proceedings, if any, including any assessment of benefits, total tax levy, lien therefor, appropriation of a part thereof for the payment of bonds, and any rights, if any, thereunder, by adoption of its new and entire "amended plan for reclamation." City of Kansas v. Hannibal & St. J. Ry. Co., 81 Mo. 285; Keane v. Strodtman, 323 Mo. 161, 18 S.W. (2d) 895; 64 C.J., p. 137, sec. 158; Riggs v. Price, 277 Mo. 333, 210 S.W. 420; McGregor v. J.C. Ware Const. Co., 188 Mo. 611, 87 S.W. 98; 33 C.J., pp. 152-153, sec. 93, note 22. (a) Article VI, Chapter 64, makes express provision for plaintiff's course of abandoning its "original plan," and all proceedings, levies, liens, rights, if any had and accrued on it, by adopting an "amended plan" and proceeding anew thereon, as plaintiff accomplished its said abandonment as provided by said Article VI. R.S. 1929, sec. 10942. (b) Plaintiff accomplished the said abandonment as a matter of decision thereto and intention executed in fact and law, not regarding the provisions of said Article VI. 1 C.J.S., p. 7, sec. 2, note B-5; 61 C.J., p. 947, sec. 1220; 1 C.J.S., p. 8, sec. 3-a; 20 C.J., p. 1084, sec. 4608; 1 C.J., pp. 12-13, note 81-b. (c) The said original plan and all proceedings, assessments, levies and liens, if any, on it having been abandoned effectively, they become and are functus officio and resort may not be had to them for supplying proceedings which might have been had on the amended plan, but which were not had, in respects resulting in total voidness and nonexistence of the claimed lien on which plaintiff sues. Authorities, supra, Subdivision (a). (d) Having abandoned its "original plan for reclamation" and all proceedings, assessments, levies and liens grounded upon it; and having adopted in lieu thereof a total new "amended plan for reclamation;" and having proceeded de novo on it, it is only the proceedings had grounded on the "amended plan" which could, if sufficient, validate the claimed lien on which plaintiff sues. Authorities, supra, (2) and (2)a. (e) The decisions of these issues need not be influenced by virtue of defendant having issued and sold bonds, if it did so. The said abandonment had been accomplished fully, and recorded in the proceedings themselves in which the bonds were issued long before the bonds could have been sold, if sold at all. (3) Plaintiff's claimed lien in suit for its alleged annual assessment of installment and maintenance taxes for the year 1934 is wholly void and nonexistent, for total absence of foundation for it. McAnally v. Little River Drain. Dist., 325 Mo. 348, 283 S.W. (2d) 650. (a) Plaintiff's evidence establishes affirmatively and conclusively that plaintiff failed wholly to file in the Recorder's office a certified copy of the decree under Section 10919, confirming the benefits assessed on and of the assessment on plaintiff's "Amended Plan for Reclamation" as commanded therefor by Section 10919 to constitute an imposition upon the lands of the burden of the assessment and a basis for, and condition to, any levy of a total tax under Section 10921. This failure is fatal to the existence of plaintiff's claimed lien in suit. (b) Plaintiff's evidence establishes affirmatively and conclusively that plaintiff did not levy or extend a total tax under Section 10921, as a basis of perfecting a lien therefor, and for subsequent annual levies under Section 10926. This is fatal to the existence of plaintiff's claimed lien in suit. Cooley on Taxation, sec. 1015, p. 250, sec. 1036, pp. 2099-2102; District v. Township, 317 Mo. 933, 297 S.W. 1. (c) Plaintiff's evidence establishes affirmatively and conclusively that plaintiff did not perfect under Section 10926 any lien for any total tax levy as a basis for the alleged annual levy and claimed lien therefor in suit. This also is fatal to the existence of plaintiff's claimed lien in suit. Cooley on Taxation, sec. 1230, p. 2451, sec. 1232, p. 2454; 61 C.J., p. 916, sec. 1159. (d) Plaintiff's evidence establishes affirmatively and conclusively that plaintiff did not appropriate under Section 10944 any part of any total tax levy and lien to payment of bonds issued thereon as a basis for the alleged levy and claimed lien therefor in suit. This, also, is fatal to the existence of plaintiff's claimed lien in suit. (e) Plaintiff's evidence establishes affirmatively and conclusively that it could not have levied, and therefore did not levy, any annual installment tax under Section 10922, or appropriation thereof, or any maintenance tax under Section 10945 for the year 1934. McAnally v. Little River Drain. Dist., 325 Mo. 348, 283 S.W. (2d) 650. (f) As a matter of law, plaintiff's claimed lien in suit could have no existence apart from a valid establishment of burden of assessment levy and lien under Sections 10919, 10921 and 10926, and therefore the claimed lien and the entire claimed lien of which it is claimed to constitute a part is wholly nonexistent and a mere cloud on defendant's title to her lands in suit. (4) Plaintiff's "Amended Plan for Reclamation," in evidence (as also did its "Original Plan for Reclamation," in evidence), included, as a matter of law, no provision for direct benefits to defendant's "Bull Island" lands in suit, and, therefore, as a matter of law, constitutes no basis upon which, under the further provisions of said Article VI, the claimed lien in suit could be grounded or lawfully exist. (a) Section 10917 expressly restricts the authority of the commissioners appointed under Sections 10942 and 10915 to the making of assessments against lands in the district, for which the "amended plan" provides benefits, as a matter of law, and it and Section 10919 expressly restrict likewise the jurisdiction of the circuit court to confirm an assessment. R.S. 1929, sec. 10917. (b) Such benefits must be special, substantial and direct. Pomroy v. Pueblo Public Water Works, 55 Colo. 476; 44 C.J., pp. 481, 483, secs. 2806, 2808; Owensboro v. Sweeney, 129 Ky. 607, 11 S.W. 364, 130 Am. St. Rep. 477, 18 L.R.A. (N.S.) 181; McCormack v. Patchin, 53 Mo. 33, 14 Am. St. Rep. 440; 36 C.J., p. 1021, sec. 66; Birmingham Drain. Dist. v. C., B. & Q. Ry. Co., 274 Mo. 140, 202 S.W. 404; St. Louis v. Wenneker, 145 Mo. 230; Bushnell v. Miss. & Fox River Drain. Dist., 233 Mo. App. 921, 111 S.W. (2d) 946; Halifax Drain. Dist. v. State, 158 So. 123; Marshall v. Commrs. of Upper Cache Drain. Dist., 144 N.E. 321; Williams v. Hillman, 145 Pac. 1111; Chicago & N.Y. Ry. Co. v. Board of Supervisors, 165 N.W. 390; Cleveland, C.C. & St. L. Ry. Co. v. Mumford, 197 N.E. 826; Schafroth v. Buena Vista Co., 165 N.W. 341; Kansas City So. Ry. Co. v. Road Imp. Dist., 256 U.S. 658; Myles Salt Co. v. Iberia Drainage Dist., etc., 239 U.S. 479; Board of Directors of Levee Dist. v. Prairie Pipe Line Co., 292 Fed. 474; 36 C.J., p. 1021, sec. 66. (c) It is not enough that a particular tract of land might be benefited indirectly or incidentally along with other lands in the community through reclamation of the lands directly benefited, as by an improved neighborhood or improved accessibility due to the bettered physical condition of the specially benefited lands across which access is had to the lands not otherwise and directly benefited. Williams v. Hillman, 145 Pac. 1111; Authorities cited above under IV (b). (5) Validation of plaintiff's claimed lien in suit, and of the judgment appealed from would operate (a) as a denial to defendant by the State of Missouri of the equal protection of its laws guaranteed to her by the Constitution of the United States, Amendment Fourteen, Paragraph 1. Myles Salt Co., Ltd., v. Board of Commrs. of The Iberia & S. Mary's Drain. Dist., 239 U.S. 478; Yick Wo v. Hopkins, and Wo Lee v. Hopkins, 118 U.S. 366; Virginia Coupon cases, 114 U.S. 269; Board of Directors of Miller Levee Dist. v. Prairie Pipe Line Co., 292 Fed. 474; ...
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