Mississippi and Fox River Drainage Dist. of Clark County v. Ruddick

• Decision Date: 07 November 1933
• Citation: 64 S.W.2d 306,228 Mo.App. 1143
• Parties: MISSISSIPPI AND FOX RIVER DRAINAGE DISTRICT OF CLARK COUNTY, MISSOURI, RESPONDENT, v. A. J. AND C. A. RUDDICK, APPELLANTS
• Court: Missouri Court of Appeals

64 S.W.2d 306

228 Mo.App. 1143

MISSISSIPPI AND FOX RIVER DRAINAGE DISTRICT OF CLARK COUNTY, MISSOURI, RESPONDENT, v. A. J. AND C. A. RUDDICK, APPELLANTS

Court of Appeals of Missouri, St. Louis

November 7, 1933

Appeal from the Circuit Court of Clark County.--Hon. Walter A Higbee, Judge.

AFFIRMED.

Judgment affirmed.

Luther & Luther, Rendlen, White & Rendlen and B. F. Jones for defendants.

(1) The only authority and right to impose or levy any drainage tax exists by reason of a statute so providing. Those asserting the validity of the tax must point out the law authorizing. Birmingham Drain. Dist. v. C. B. & Q. R. Co., 274 Mo. 140, 202 S.W. 404; Cunningham Realty Co. v. Drainage District No. 6, 40 S.W.2d 1086. (2) The plaintiff Drainage District could not levy over fifty cents per acre for preliminary work without a hearing therefor. Sec. 10752 R. S. 1929 (formerly Sec. 11, Laws 1913, p. 238); Sec. 10759 R. S. 1929 (formerly Sec. 18, Laws 1913, p. 23--); Little River Drainage District v. St. Louis, M. & S. E. R. R., 236 Mo. 94, 139 S.W. 330; Drainage District v. Bartlett Trust Co. (Mo.), 50 S.W.2d 627. (3) Any attempt to levy additional assessment herein over the fifty cents per acre levied upon appellants' land and by them paid is an attempt to exceed the legal authority and void, especially as there has been no day in court granted the landowners. State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Watkins v. Macon County, 68 Mo. 29; United States v. Labette County, 7 F. 318; Little River Drainage District v. St. Louis M. & S. E. R. R., 236 Mo. 94, 139 S.W. 330. (4) The writ of mandamus cannot compel the Drainage District to do an illegal act. The mandamus does not make legal the sixty cents levy it directed. Appellants are not bound thereby. State ex rel. Poole v. City of Willow Springs, 183 S.W. 589; United States v. Labette County, 7 F. 318.

B. L. Gridley and E. W. McManus for respondent.

(1) Judgment obtained by E. Hitt Stewart against the Drainage District established beyond question the validity of the debt and all steps leading to it. Those issues are res judicata. 34 C. J. 967; Harshman v. Knox Co., 122 U.S. 306; Ralls Co. v. United States, 105 U.S. 733; Hill v. Scotland Co. Ct., 32 F. 716; Hicks v. Cleveland, 106 F. 459. (2) Landowners are not proper or necessary parties either to the original suit by Stewart or the mandamus action. Cromwell v. County of Sac, 94 U.S. 351; Kenney v. Eastern Trust & Banking Co., 123 F. 297; State ex rel., etc., v. Cook (Mo.), 201 S.W. 361; Gordon v. Burkhart, 59 Mo. 75; Barada v. Carondelet, 16 Mo. 323; State ex rel. v. Reynold, 226 Mo. 12, 178 S.W. 468. (3) The proceeding in mandamus is a remedy in the nature of an exception for the purpose of collecting a judgment. Harshman v. Knox Co., 122 U.S. 306; Thompson v. United States, 103 U.S. 480. (4) The plaintiff Drainage District is a municipal corporation and a political subdivision of the State. Mound City v. Miller, 170 Mo. 240, 70 S.W. 721; Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S.W. 739; Morrisey v. Morey, 146 Mo. 543, 48 S.W. 629; McQuillin, Municipal Corporations (2 Ed.), sec. 125. (5) Mandamus is the proper remedy to recover the judgment obtained against municipalities or public corporations. State v. Butler Co., 164 Mo. 214, 64 S.W. 176; 38 C. J. 761. (6) Assessments for drainage district purposes do not create an indebtedness within constitutional limitations. C. M. & St. P. R. R. Co., 266 Mo. 60, 178 S.W. 893; Houck v. Little River Drainage District, 248 Mo. 373, 154 S.W. 739. (7) The board of supervisors of drainage districts is empowered to employ competent engineers for the district. R. S. 1919, Sec. 4385 (Sec. 10750, R. S. 1929). (8) The board of supervisors is empowered to complete all or any works or improvements which may be needed to carry out, maintain and protect "the plan of reclamation." R. S. 1919, Sec. 4393 (Sec. 10758, R. S. 1929). (9) The board of supervisors is empowered to enter into contracts with and employ attorneys for the district. R. S. 1919, Sec. 4403 (Sec. 10770, R. S. 1929). (10) The board of supervisors is empowered and authorized to provide for the compensation of officers and engineers, attorneys and other employees and pay their fees and necessary expenses. R. S. 1919, Sec. 4414 (Sec. 10782, R. S. 1929). (11) Where a quasimunicipal corporation has the power to enter into contracts for services or material, there is an implied power to levy and collect and pay over funds necessary to pay the agreed price therefor. Bates Co., Mo., v. Wills, 239 F. 785; United States v. Saunders, 124 F. 124, 128-131, 59 C. C. A. 394; Loan Ass'n v. Topeka, 20 Wall. 655, 660, 22 L.Ed. 455; United States v. New Orleans, 98 U.S. 381, 393, 28 L.Ed. 225; Ralls County Court v. United States, 105 U.S. 733, 26 L.Ed. 1220; United States v. Clark County, 96 U.S. 211, 24 L.Ed. 628; Commonwealth v. Commissioners of Allegheny County, 37 Pa. 277, 290; Lowell v. Boston, 11 Mass. 454, 15 Am. Rep. 39; State ex rel. Hasbrook v. Milwaukee, 25 Wis. 122; Norris v. Montezuma Valley Dr. Dist., 248 F. 369-372; Bunch v. United States, 252 F. 673, 679; Wolff v. New Orleans, 103 U.S. 358.

BECKER, P. J. Kane and McCullen, JJ., concur.

OPINION

BECKER, P. J.

This is a suit by the Mississippi and Fox River Drainage District of Clark County, Missouri, against A. J. Ruddick and C. A. Ruddick to collect an assessment levied against land owned jointly by them and located within the boundaries of said drainage district. The case was tried without the aid of a jury and resulted in a judgment for plaintiff, and defendants appeal.

The case was submitted to the trial court upon an agreed statement of facts from which it appears that the Mississippi and Fox River Drainage District of Clark County, Missouri, was duly incorporated as a drainage district on October 8, 1915, and that a board of supervisors was duly elected and qualified, which board, in accordance with the provisions of Section 11 of the Laws of Missouri, 1913, page 238 (now Sec. 10752, R. S. Mo. 1929), levied a uniform tax of fifty cents per acre upon each acre of land within said district "to be used for the purpose of paying expenses incurred or to be incurred in organizing said 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 specific provision of this article to provide funds to pay the total costs of works and improvements of the district," and that the defendants herein paid said levy.

It further appears that the board of supervisors of the drainage district, under Section 9, page 237, Laws of Missouri, 1913 (now Sec. 10750, R. S. Mo. 1929), appointed one E. Hitt Stewart chief engineer to "have control of the engineering work in said district, and that said Stewart filed suit and obtained judgment against the Mississippi and Fox River Drainage District for the sum of $ 3531.09, for services rendered by him as supervisor and chief engineer, together with other claims assigned to him arising out of the organization and preliminary work in connection with said drainage project." It is conceded that the Ruddicks, defendants herein, were nonresidents of the State of Missouri and were not made parties defendants to said action by Stewart, and individually "did not appear therein." It further appears that no appeal was taken in said case.

After Stewart had obtained said judgment against the drainage district he instituted a suit against the drainage district and its board of supervisors in mandamus to compel the levy of an additional tax of sixty cents per acre upon each acre of land within said district for the purpose of paying his judgment, and in this action the defendants Ruddicks were not named as defendants. A hearing was had which resulted in the issuing of a peremptory writ of mandamus directing the supervisors of the drainage district to levy, assess and collect a uniform tax of sixty cents per acre, and the supervisors of the district did levy such tax.

It is admitted that the tax levied against the lands of defendants became delinquent and remains unpaid.

The agreed statement of facts further discloses that commissioners were duly appointed by the circuit court to assess the benefits and damages, and that said commissioners filed a report assessing such benefits and damages in the circuit court of Clark County, and that afterwards said report was withdrawn and that no further report of benefits or damages has been made, and that the drainage district has never been dissolved by order of any court.

The case at bar having been submitted to the trial court upon said agreed statement of facts, defendants requested an instruction to the effect that under the law and evidence the court's finding and judgment must be for the defendants, which instruction was refused, and thereafter judgment was rendered for plaintiff.

The appellants here contend that the object of their appeal is to have this court determine whether or not a drainage district may levy a tax of sixty cents per acre for the paying of expenses arising out of the organizing of the drainage district and preliminary work, over and above the fifty cents per acre provided for such purpose under Section 10752, Revised Statutes of Missouri, 1929. Upon the facts disclosed by the record this point is not before us.

Our Supreme Court has repeatedly held that a drainage district is a municipal corporation. [Honey Creek Drainage Dist. v. Invest. Co. (Mo.), 32 S.W.2d 753; State ex inf. Atty.-Gen. v. Hughesville Road Dist. No. 11 of Pettis County (Mo.), 6 S.W.2d 594; Barnes v. Constr. Co., 257 Mo. 175, 165 S.W. 723; Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S.W. 12; ...