Little River Drainage Dist. v. Houck

• Decision Date: 12 March 1940
• Citation: 137 S.W.2d 656,235 Mo.App. 73
• Parties: THE LITTLE RIVER DRAINAGE DISTRICT, A PUBLIC CORPORATION, RESPONDENT, v. MARY H. G. HOUCK, APPELLANT
• Court: Missouri Court of Appeals

137 S.W.2d 656

235 Mo.App. 73

THE LITTLE RIVER DRAINAGE DISTRICT, A PUBLIC CORPORATION, RESPONDENT, v. MARY H. G. HOUCK, APPELLANT

Court of Appeals of Missouri, Springfield

March 12, 1940

Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.

AFFIRMED.

Judgment affirmed.

Rush H Limbaugh and Giboney Houck for appellant.

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

SMITH, J. Tatlow, P. J., and Fulbright, J., concur.

OPINION

SMITH, J.

This is a suit brought for the collection of drainage taxes on two tracts of land, within the district for five years, 1933 to 1937, both inclusive. The petition is very long, and we do not set it out in full. In order to give a statement of the case, we have adopted, with slight alteration, the printed statement of the appellant.

The Little River Drainage District was incorporated in 1907. In 1909 the Circuit Court of Butler County, which organized the district, appointed Commissioners to view the lands in the district and assess the benefits. There are three tracts of land involved in this suit (but two of them called tract 1 in plaintiff's petition have been combined in one tax bill). On tract 1 the benefits found by the Commissioners and decreed by the court were $ 2092. On tract 2 of plaintiff's petition the benefits found by the Commissioners and decreed by the court were $ 1099.

The plaintiff brought this suit for drainage taxes claimed to be due for the years 1933, 1934, 1935, 1936 and 1937, on two tracts of land in Scott County, Mo., one tract of 94.64 acres, described as Lot 3, Northwest Quarter Section 4, Township 29, Range 13, and one tract of 50.95 acres, described as the West Half of Lot 3, Northeast Quarter Section 4, Township 29, Range 13, numbered, respectively, tracts 1 and 2. The petition is in five counts.

The taxes claimed under each of these five counts, exclusive of interest, are designated as follows: On tract 1 for the year 1933 taxes, $ 143.73, with a maintenance tax of $ 9.21, and a penalty charge of $ 84.12, and for 1933 on tract 2, for taxes due, $ 75.50, for maintenance $ 4.87, and a penalty of $ 44.21. For the year 1934 on tract 1, there is sought for taxes, $ 31.59, maintenance $ 10.25; and a penalty of $ 17.97, and on tract 2 the following: Taxes $ 16.59, maintenance, $ 5.39 and penalty of $ 9.44. For 1935 on tract 1 there was sought taxes of $ 31.59, maintenance $ 10.25, and a penalty of $ 13.39. On tract 2 for 1935 there was sought taxes $ 16.59, maintenance $ 5.39, and a penalty of $ 7.03. For the year 1936 on tract 1 there was sought taxes, $ 31.59, maintenance $ 10.25 and penalty $ 8.37, and on tract 2 for 1936, there was sought taxes, $ 16.59, maintenance $ 5.39, and for penalty $ 4.40. For 1937 on tract 1, there was sought for taxes $ 52.30, for maintenance $ 31.38, and a penalty of $ 6.60, and on tract 2 for 1937 there was sought taxes $ 27.48, maintenance $ 16.49, with a penalty of $ 3.52, making a total for taxes sued for, including penalties, but excluding attorney fees, of $ 751.57.

The petition states that plaintiff is a public corporation of the State of Missouri, organized and existing under and by virtue of the provisions of Article 3, Chapter 122, of the Revised Statutes of Missouri 1899 and amendments and additions thereto, as a drainage district, and as such institutes this action. It then recites the steps preliminary to the incorporation of the district and states that on the 30th day of November, 1907, the Circuit Court of Butler County, Missouri, entered its judgment and decree incorporating and organizing the Little River Drainage District; that the articles of incorporation were duly filed in the respective counties and notice was published calling a meeting of the owners of real estate and property in the district, the 19th of December, 1907, to elect a Board of Supervisors; that five supervisors were duly elected; that after the organization of the Board of Supervisors on the 19th day of December, 1907, a chief engineer was appointed and a plan of drainage was adopted and certified to the Circuit Court of Butler County with a request to appoint commissioners for reviewing the lands in the district and assessing benefits and damages; that afterwards the court duly appointed commissioners, who subsequently made and filed their report assessing benefits and damages, which was approved by the court the 21st day of October, 1912, and transmitted on the 24th day of February, 1913, in a well-bound book to the Clerk of each County Court of each county in which lands embraced within the Little River Drainage District were situated; that the supervisors on the 26th day of February, 1913, determined that it would be best for the district to issue bonds, passed a resolution ordering and directing the issuance of bonds, of $ 4,750,000, to pay the costs of the works and improvements in said drainage district and such other costs, fees and salaries as authorized by law; that on the same day, the 26th of February, 1913, the Board of Supervisors by its order of record did duly assess and levy a tax on all the lands and property in said district to which benefits had been assessed in an equal amount to the costs of such drainage works and improvements as estimated by the aforesaid commissioners plus the actual expense of organizing said district, the probable working and administrative expenses and damages as estimated by the Board of Supervisors in the completion of said works and improvements, and to carry out the objects and purposes of said district, and the amount of interest estimated to accrue on the bond issue by the district, plus 10 per cent of said total amount and apportioned, and levied the same on each tract of land in said district in proportion to the benefits assessed and not in excess thereof; that afterwards on the 28th of February, 1913, the levy of said tax was duly evidenced and certified by the Board of Supervisors, to the Clerk of the County Court of each county in which lands of the said district were situated and by the Clerk filed and recorded in his office in the form, manner and within the time required by the statute.

The petition further recites that in 1918 bonds were authorized for the additional sum of $ 1,000,000 and a part of the remaining and unused benefits set aside and a levy of additional tax made to pay the principal and interest of same as they matured; that in 1920 bonds were authorized for the additional sum of $ 600,000 and a part of the remaining and unused benefits set aside and a levy of additional tax made to pay the principal and interest of same as they matured; that on January 22, 1924, additional drainage works and improvements were recommended and adopted by the Board of Supervisors; that on the same day bonds were authorized for the additional sum of $ 5,000,000 and a part of the remaining and unused benefits set aside and a levy of additional tax made to pay the principal and interest of same as they matured; of which $ 4,000,000 of bonds were subsequently sold; that under the provision of the statutes and by reason of the foregoing proceedings had and done, a lien was established and fixed on all the lands situated within the district upon which benefits had been assessed to the extent of the taxes thereon levied and until paid constitutes a lien on said lands and property in favor of the plaintiff paramount to all other liens except that for state, county, school and road taxes, that in 1933 a tax of $ 947,190.26 was levied on the lands and properties situated within the Little River Drainage District on which benefits had been assessed in proportion to the benefits assessed as the amount of the installment levied for and to be collected in the year 1933 of the total tax levied on the lands and property within the district and that also by resolution duly adopted the Board of Supervisors ordered and levied in 1933 the sum of $ 61,196.33 for maintenance.

That the annual installment and levy of said total tax and said maintenance tax was duly evidenced and certified by the president and secretary of the Board of Supervisors to the respective collectors of revenue of each of said counties and townships above named in the form and manner and within the time specified and provided for by the statute.

Plaintiff further states that the defendants are the owners of the following lands situate and being in Scott County, Missouri, and included within the limits of The Little River Drainage District, and that the amount of the annual installment of the total tax; the amount of the maintenance tax, for the year last above set out, together with the amount of penalty or interest accrued on each, and the aggregate amount of said sums now remaining due and unpaid on each of the several tracts of land is as set out; that the district has employed R. B. Oliver, III, a licensed attorney, to represent it and that said attorney is entitled to a reasonable attorney fee for bringing and prosecuting this suit and that a reasonable fee for bringing and prosecuting this suit is not less than 10 per cent of the amount collected.

As to the years 1934, 1935, 1936 and 1937, the petition says, that in 1934 the total annual installment tax levied on all the lands in the district was $ 209,980.73 and the total maintenance tax was $ 68,151.65. In 1935 the total annual installment tax levied on all the lands in the district was $ 209,817.31 and the total maintenance tax was $ 68,098.61. In 1936 the total annual installment tax levied on all the lands in the district was $ 209,763.33 and the total maintenance tax was $ 68,081.11. In 1937 the total annual installment tax levied on all the lands in the district was $ 347,145.47 and the total maintenance tax was $ 208,283.07.

The...