Little River Drainage Dist. v. Friedlein

• Citation: 165 S.W.2d 396,350 Mo. 218
• Decision Date: 08 September 1942
• Docket Number: 37847,37848
• Parties: The Little River Drainage District, a Public Corporation, v. A. O. Friedlein and Martha A. Friedlein, Appellants. the Little River Drainage District, a Public Corporation, v. Dale B. Perkins and Birdie Perkins, Appellants
• Court: Missouri Supreme Court

165 S.W.2d 396

350 Mo. 218

The Little River Drainage District, a Public Corporation, v. A. O. Friedlein and Martha A. Friedlein, Appellants. the Little River Drainage District, a Public Corporation, v. Dale B. Perkins and Birdie Perkins, Appellants

Nos. 37847, 37848

Supreme Court of Missouri

September 8, 1942

Rehearing Denied November 12, 1942.

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Affirmed.

R Kip Briney, Giboney Houck and Rush H. Limbaugh for appellants.

(1) The taxes for which this suit was brought are not collectible, because the actions by the district in making the levies, issuing the bonds and refinancing the indebtedness which such taxes were assessed to pay were in violation of the provisions of the Constitution of the United States and the Constitution of Missouri. (a) Because without notice to appellants the board of supervisors levied taxes and issued bonds in excess of the original estimated cost fixed by the decree of the circuit court; (b) because principal and interest was in excess of total benefits fixed by the decree of the circuit court; (c) because the lands of appellants are charged with part of the cost of drainage facilities in lands added to the district; (d) because appellants were not permitted to pay their proportionate part of the bonds of the refunding issue except by paying their proportionate part of the original bonded indebtedness. Sec. 10, Art. I, U.S. Constitution; Amend. V, U.S. Constitution; Sec. 1, Amend. XIV, U.S. Constitution; Secs. 21, 30, Art. II, Mo. Constitution; Village of Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187; Duncan v. St. John's Levee & Drain. Dist., 60 F.2d 342; Kersh Lake Drain. Dist. v. Johnson, 309 U.S. 485, 60 S.Ct. 640; McCormack v. Patchin, 53 Mo. 33; Zoeller v. Kellogg, 4 Mo.App. 163; Cooley, Taxation (2 Ed.), chap. 20. (2) In an action such as this for the collection of taxes, appellants may avail themselves of the defense that the proceedings on which the right to collect the taxes are based are in violation of the Constitution. Village of Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187; Hagar v. Reclamation Dist., 111 U.S. 701, 28 L.Ed. 569, 4 S.Ct. 663; Garden of Eden Drain. Dist. v. Bartlett Trust Co., 330 Mo. 554, 50 S.W.2d 627; 17 Am. Jur., p. 831, sec. 89. (3) In a suit to collect a tax like this, the invalidity of the tax may be urged as a defense. Squaw Creek Drain. Dist. No. 1 v. Hopper, 245 S.W. 1092, 213 Mo.App. 27; Norborne Land Drain. Dist. Co. of Carroll County v. Cherry Valley Twp. of Carroll County, 31 S.W.2d 201, 325 Mo. 1197; State ex rel. Douglas v. Redman, 270 Mo. 465, 194 S.W. 260. (4) The district cannot recover for the reason that the evidence shows the benefits charged against appellants' land have been exhausted. Sturdivant Bank v. Little River Drain. Dist., 68 S.W.2d 671, 334 Mo. 753; State ex rel. Drain. Dist. No. 8 of Pemiscot County v. Duncan, 334 Mo. 733, 68 S.W.2d 679; State ex rel. Bliss v. Grand River Drain. Dist., 330 Mo. 360, 49 S.W.2d 121; State v. Thompson, 41 S.W.2d 941; McWilliams v. Drainage Dist., 204 Mo.App. 237, 224 S.W. 35; Sec. 12340, R. S. 1939; Sec. 12374, R. S. 1939; 19 C. J. 731, sec. 232; 28 C. J. S., p. 427, sec. 66b; 17 Am. Jur. 819, sec. 67. (5) If interest were not included in the amount of benefits assessed, but could be collected in addition to these benefits, the debt of the district might be made perpetual. Behrens v. Commercial, etc., Dist. No. 1, 181 P. 892. Interest is of statutory origin. 33 C. J. 180, sec. 7. Interest is limited by statute. Sec. 12369, R. S. 1939. Period at which maturity of bonds shall begin is mandatory. Halifax Drainage Dist. of Volusia Co. v. State, 185 So. 123. No opportunity was given to landowners to pay the principal of the tax, as provided by statute. Sec. 12378, R. S. 1939. Provision that bonds shall not be sold for less than 95c on the dollar is mandatory. Board of Drainage Commissioners v. Arnold, 120 S.E. 130. (6) Without authority of law, the district has arbitrarily classified lands in the district as cleared land and timber land, and has illegally released the timber land from the obligation to pay taxes upon payment by the owners thereof of 25c per acre annually. 61 C. J. 102; Life Assoc. of America v. Board of Assessors of St. Louis County, 49 Mo. 512; Masters v. City of Portland, 33 P. 540; City of Cape Girardeau v. Groves Motor Co., 142 S.W.2d 1040. (7) The tax bills sued on are invalid because they do not set out the several funds to which taxes are due, with the respective amounts due to each fund. Sec. 9953, R. S. 1929; Sec. 3283, R. S. 1939; State ex rel. Sturdivant Bank v. Little River Drain. Dist., 68 S.W.2d 671; People v. Peeples, 126 N.E. 151; People v. Glenn, 69 N.E. 568; Beardsworth v. Whiteside, etc., Drain. Dist., 190 N.E. 310. (8) The judgment by the Circuit Court of Butler County of October 21, 1912, fixing the estimated cost of the plan of reclamation for drainage at $ 4,054,445, was final on the question of cost, and no action authorizing the charging of a larger sum for that purpose was authorized without further action of the court. State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 657; Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061. (9) The total amount of the levies to pay the principal and cost of administration of the drainage district is $ 13,115,700.35, which is $ 9,061,255.35 in excess of the cost as fixed and estimated by the court, and to this extent such levies are void. Fellows v. Dorsey, 171 Mo.App. 289, 157 S.W. 995; Chicago v. Edens, 261 Ill. 272, 103 N.E. 996; Collins v. City of Ellensburg, 122 P. 1010; Williams v. Hybskmann, 247 S.W. 203; Williams v. Hybskmann, 278 S.W. 377; Probert v. Investment Co., 155 Mo.App. 344, 137 S.W. 41; 5 McQuillin, Municipal Corps., 806-807, sec. 2264; McAnally v. Little River Drainage Dist., 325 Mo. 348, 28 S.W.2d 650, l. c. 651. (10) A drainage district, being a creature of statute, has only such power and authority to levy taxes and to make contracts as are prescribed by law, and persons dealing with such district are presumed to know that they are dealing with a public agency, the powers of which are strictly limited. Bushnell v. Mississippi & Fox River Drain. Dist., 111 S.W.2d 946; Graves v. Little Tarkio Drainage Dist., 134 S.W.2d 70. (11) Action of a district in exacting a tax in advance to establish a reserve fund for the district is void. State ex rel. Johnson v. St. Louis-San Francisco Ry. Co., 286 S.W. 360.

R. B. Oliver, III, and Oliver & Oliver for respondent.

(1) The tax bills as certified to by the collector and the drainage tax books, both introduced by the respondent, made a prima facie case and the burden of proof then rested upon the appellants to overcome the case thus made. Secs. 9953, 12346 R. S. 1939; Little River Drain. Dist. v. Houck, 137 S.W.2d 656; State ex rel. v. Blair, 245 Mo. 680; Drainage Dist. v. Trust Co., 50 S.W.2d 627. (2) The validity of the bonds issued by the district, the proceedings leading up to the issuance of the bonds, and the authority of the district to issue bonds are not proper subjects to be inquired into in a suit to collect delinquent drainage assessments. Such inquiries are collateral attacks and cannot be raised in a tax suit. Little River Drain. Dist. v. Houck, 137 S.W.2d 656; State ex rel. v. Sheetz, 279 Mo. 429, 214 S.W. 376; State ex rel. v. Blair, 245 Mo. 680, 151 S.W. 148; State ex rel. Roberts v. Eicher, 178 S.W. 171; Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658; Labaddie Bottoms Dist. v. Randall, 348 Mo. 867, 156 S.W.2d 713. (3) The contention of appellants that the tax is unenforceable because the total tax levies exceed the estimated cost as made by the Engineer and contained in the judgment confirming the Commissioners' Report assessing benefits and damages, is untenable because there is no requirement in the statute which requires the total tax levies to be within the estimated cost of construction. The only limitation is the amount of benefits assessed. Secs. 12340, 12369, 12374, R. S. 1939; McAnally v. Little River Drain. Dist., 325 Mo. 348, 28 S.W.2d 650; Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658. (4) The total tax levies do not exceed the assessed benefits as contended by appellants. That part of the total tax levied for entries is excluded in determining whether the total tax exceeds the assessed benefits. Sec. 12340, R. S. 1939; Little River Drain. Dist. v. Houck, 137 S.W.2d 656. (5) The contention of appellants that the statutes authorizing additional assessments of benefits, total tax levies subsequent to the original levy, and bond issues subsequent to the original bond issue are unconstitutional, because such statutes contravene the due process clause of the State and Federal Constitutions is untenable, and must be ruled against appellants. State ex rel. Ross v. General American, 85 S.W.2d 68, 336 Mo. 829; State ex rel. Ross v. Criddle, 85 S.W.2d 77, 336 Mo. 1229. (6) The assertion of appellants that they are not liable for the 1938 tax because they offered to pay their proportionate part of the refunding bond issue is untenable, because appellants did not comply with nor meet the requirements of the statute providing for the prepayment of a refunding bond issue. Sec. 12611, R. S. 1939. (7) The tax bill, duly authenticated by the certificate of the collector, attached to the petition and introduced in evidence, is regular in all respects and complies with the statutes governing the practice and procedure in drainage tax suits. Sec. 9953, R. S. 1929; Sec. 12346, R. S. 1939. Furthermore, the attack made on the tax bill by appellants is a collateral attack and cannot be raised in a tax suit. State ex rel. Roberts v....