Macon County Levee Dist. No. 1 v. Goodson

• Decision Date: 11 November 1929
• Citation: 22 S.W.2d 651,224 Mo.App. 131
• Parties: MACON COUNTY LEVEE DISTRICT NO. 1, RESPONDENT, v. G. A. GOODSON, APPELLANT. [*]
• Court: Kansas Court of Appeals

22 S.W.2d 651

224 Mo.App. 131

MACON COUNTY LEVEE DISTRICT NO. 1, RESPONDENT, v. G. A. GOODSON, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

November 11, 1929

Appeal from Circuit Court of Macon County.--Hon. Vernon L. Drain Judge.

AFFIRMED.

Judgment affirmed.

John V Goodson for appellant.

Ed. S Jones and Otho F. Mathews for respondent.

BARNETT, C. Boyer, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is a suit to recover delinquent taxes. Plaintiff is a levee district organized under Article 9 of Chapter 28, Revised Statutes 1919. The petition for the organization of the levee district was filed on the 19th day of February, 1921. Defendant is the owner of 329 acres of land within the boundaries of the district which he had acquired by a deed which was recorded with the recorder of deeds of Macon County, Missouri, before the petition for organization was filed. The petition for the formation of the levee district alleged the owners thereof to be Missouri Goodson and Grandison Goodson, the mother and father of defendant who had owned the real estate, but had deeded it to defendant. Upon the filing of the petition the clerk of the circuit court gave notice by causing publication to be made according to Section 4598, Revised Statutes, 1919. The notice did not name any landowners, but provided that "notice is hereby given to all persons interested in the following described real estate and other property in Macon County, Missouri." This was followed by a description of various parcels of real estate as set out in the articles of association, including a correct description of defendant's real estate. Commissioners were appointed and when their report had been filed the circuit court made a finding that the estimated cost of work and improvements exceeded the estimated benefits, and dissolved the district according to the provisions of Section 4633, Revised Statutes 1919. A preliminary tax of twenty-five cents per acre had been levied by the board of supervisors of the district pursuant to Section 4608, Revised Statutes 1919, to be used for the purpose of paying expenses incurred or to be incurred in organizing the district; but when the district was dissolved it was found that this tax was insufficient to pay all of the costs and obligations incurred in behalf of the district by the board of supervisors, and the board then levied an additional uniform tax of fifty cents per acre for the purpose of paying the balance of such costs.

This additional tax was not paid upon the lands belonging to defendant and suit was brought for the collection of the tax by the foreclosure of the lien upon his real estate.

Judgment was rendered for the plaintiff and defendant has appealed.

OPINION.

Appellant contends that there is no statutory authority for the levy of an assessment in excess of twenty-five cents per acre per year for preliminary work or to pay costs and expenses created when the district is dissolved. Section 4608, Revised Statutes 1919, provides that the board of supervisors shall levy a uniform tax of not more than twenty-five cents per acre upon each acre of land and each mile of right of way of all public service corporations within the district to be used for the purpose of paying expenses incurred or to be incurred in organizing the district, making surveys of the same, and assessing benefits and damages, and to pay other expenses necessary to be incurred before said board shall be empowered by subsequent provisions of the statute to provide funds to pay the total cost of work and improvements of the district. Section 4633 provides that if, after determining the objections made to the commissioners' report, the court shall find that the estimated cost of works and improvements as reported by the board of commissioners, or as amended by the court, exceed the estimated benefits, the court shall then render its decree determining the incorporation of the district to be dissolved as soon as all costs incurred, including all obligations and debts made in behalf of the district by the board of supervisors, and court costs shall have been paid, and if the uniform tax levied under the provisions of Section 4608 be found insufficient to pay all such costs the board of supervisors shall make such additional uniform tax levy as will be necessary to pay such deficiency.

The statutory authority to levy the additional tax is quite plain. The restrictions on the power of the board of supervisors to levy a tax oftener than once a year have reference to the taxes to be levied when the corporation continues in existence. There is nothing in the statutes which justifies the conclusion that it was the intent of the Legislature to require a district to continue in existence for another year at added expense for the sole purpose of levying the tax necessary to pay its debts incident to a dissolution.

It is next contended that Section 4597, Revised Statutes 1919, provides that the articles of association shall state the names of the owners of the land in the district, together with a description of the land owned by each, and that when the name of the owner of any of said lands is unknown this fact shall be set out in the articles of association; that this requirement is jurisdictional and that omission of defendant's name as the owner of the lands in question is fatal to a recovery. In the cases of Barnes v. Construction Co., 257 Mo. 175, 165 S.W. 723, and State ex rel. Coleman v. Blair, 245 Mo. 680, 151 S.W. 148, it was held that a notice which sufficiently described the real estate and which was directed to certain named persons and to "all other persons who own or have any interest in or to the following described real estate" was sufficient. In the Barnes case it was contended that the county court acquired no jurisdiction over the owner of certain tracts of land in the drainage district because the land was alleged to belong to one D. W. Hutson, who was dead when the petition to organize the district was filed, Hutson had conveyed the title to the land in question in his lifetime, but the notice complied with Section 5587, Revised Statutes 1919, and was directed to certain named persons and to all "other persons owning lands to be affected by the proposed drainage district." The court held that this notice was sufficient to give the court jurisdiction over each and every person owning lands within the drainage district and that the owners of the lands which had belonged to D. W. Hutson were accorded every opportunity required by law to appear and resist the judgment of the court.

The case of State ex rel. Coleman v. Blair, supra, was an action to collect taxes levied by a drainage district. In that case it was held not necessary in the notice to landowners to designate every person appearing by the deed records to be an owner of lands within the district, because the notice, in addition to the names returned by the viewers, also designated "generally, all other persons whose lands will be affected by the proposed improvements."

Section 4598, Revised Statutes 1919, which provides for notice in levee district proceedings does not require that any person be specifically designated by the notice, but only provides that it be directed to all persons interested in the described real estate.

Appellant calls our attention to the case of North Kansas City Levee District v. Hillside Security Co., 268 Mo. 654 187 S.W. 852. ...