Morrison v. Morey

• Decision Date: 08 December 1898
• Citation: Morrison v. Morey, 146 Mo. 543, 48 S.W. 629 (Mo. 1898)
• Parties: MORRISON v. MOREY et al.
• Court: Missouri Supreme Court

48 S.W. 629

146 Mo. 543

MORRISON v.MOREY et al.

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

LEVEE DISTRICTS — POLICE POWER — ASSESSMENTS — MUNICIPAL INDEBTEDNESS.

1. A levee district, which under Rev. St. c. 101, may be established by the county court on application of property owners, may be established by such court notwithstanding objection of less than a majority of the landowners, and is not a private corporation, but a public, political subdivision of the state.

2. Levees may be provided for under the police power of the state.

3. Assessments levied on the lands of a levee district to carry out its purposes are not taxes within the constitutional provisions.

4. Under Rev. St. § 6679, lands are assessed for levee purposes in proportion to the benefits, the assessment being based on the difference between the value of the lands with and without the levee.

5. Bonds for construction of levees authorized by Laws 1893, p. 199, expressly payable out of the assessments on lands of the district benefited, are not an increase of municipal indebtedness, within Const. art. 10, § 12, limiting the same.

Error to circuit court, St. Genevieve county; James D. Fox, Judge.

Suit by Louis W. Morrison, for himself and others similarly situated, against Anson H. Morey and others, as directors of levee district No. 1, lying in Perry county.A demurrer to the answer was sustained, and defendants bring error.Reversed.

T. B. Whitledge and Edw. A. Rozier, for plaintiffs in error.Ralph E. Sprigg and Chas E. Killian, for defendant in error.

MARSHALL, J.

This is a proceeding in equity to enjoin the defendants, as directors of levee district No. 1, in Perry county, from proceeding under chapter 101, Rev. St. Mo., to construct a levee in said district.The case is here upon petition, answer, and demurrer to the answer.The circuit court sustained the demurrer, defendants submitted to judgment on the answer, and brought the case to this court on writ of error.

The petition is as follows:

"Plaintiff states the defendants, Anson H. Morey, A. B. Parks, and Emanuel J. Smith, are the acting directors of a certain so-called levee district, attempted to be organized under an order of the county court of Perry county, Missouri, made on the 6th day of February, 1893, under the supposed authority of chapter 101 of the Revised Statutes of Missouri, in which said order said so-called levee district is designated as `Levee DistrictNo. 1, lying in Perry county, Missouri,' and the boundaries thereof designated as follows, to wit: Beginning at a point on the old Claryville and Perryville road, at the base of the bluff; thence eastwardly along the said road to the Mississippi river; thence up along the bank of said river to the mouth of the House Island slough; thence up along the south side of said slough to the Mississippi river; thence up along the shore of said river on the line of the present levee to the base of the bluff at a point where the said levee ends and joins the said bluff upon the land of Caleb P. Clark; thence down the base of said bluff to the place of beginning, — all the land embraced in the said described district, lying north of the old Claryville and Perryville road, in Bois Brule Bottom in Perry county, Missouri.That defendants, as such board of directors, are asserting jurisdiction, authority, and control over all the real estate within said supposed levee district, and are claiming all the rights, privileges, and immunities attempted to be conferred by the provisions of said chapter 101 of the Revised Statutes of Missouri.That the total value of all the lands and town lots embraced within the boundaries of said supposed levee district, as assessed for state and county purposes, is $88,227 and that the total value of all said lands and town lots, by reason of the work proposed by said supposed levee district, as returned by the assessor of the said Perry county, is $140,157.That the value of all the lands and town lots in said supposed levee district, as ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of said indebtedness, was $88,227.That the plaintiff is the owner of the following described land, lying wholly in said supposed levee district, of the assessed values set opposite thereto, to wit:

                                    Assessed  Values
                      Description of Lands.          Without   With
                                                      Work.    Work
                103.68 a. fractional section No. 4
                 township 36, range 11............  $  200   $  715
                138.81 a. N. E. fractional section
                 No. 9, township 36, range 11.....     200      865
                75.00 a. lot No. 4, of survey No
                 147, township 37, range 11.......     800    1,170
                640 a. survey No. 1,879, township
                 36, range 11.....................   4,000    7,200
                127.29 a. part lot 1 of survey
                 1,881, townships 36 and 37
                 range 11 .........................   1,200    1,835
                

"Plaintiff further states that the defendants, asserting themselves to be the board of directors of a legally constituted levee district, and affirming the legality and constitutionality of said chapter 101 of the Revised Statutes of Missouri, and the legal formation of said levee district thereunder, and that they are a legally constituted board of directors, with all the powers attempted to be conferred by said chapter 101, have made contracts for the levying and draining of all the lands in the said supposed levee district, and have contracted to pay therefor the sum of $21,000, and have ordered the issue of the bonds of said supposed levee district to the amount of the said sum of $21,000, to be used in the payment of said contract, and are now offering the same for sale upon the market.That said bonds are to be made and constituted a lien, incumbrance, and mortgage upon all the real estate contained within the metes and bounds of said supposed levee district.Plaintiff states that the said supposed levee district has no money in its treasury, and has no source of revenue other than the supposed power of taxation attempted to be conferred by said chapter 101 of the Revised Statutes of Missouri.Plaintiff states that the said sum of $21,000 is greatly in excess of the amount of income and revenue provided by the said supposed levee district for either the present or ensuing year, and exceeds five per cent. on the value of the taxable property in said supposed levee district, as ascertained by the assessment next before the last assessment for state and county purposes previous to the incurring of said indebtedness, and that the creation of a debt to that amount by said supposed levee district is unconstitutional, being in contravention of section 12 of article 10 of the constitution of the state of Missouri.That the said order of the county court of Perry county attempting to establish said levee district is void for the following reasons: First.That said chapter 101 of the Revised Statutes of Missouri is unconstitutional, in that it authorizes the levy of a tax in excess of the limit allowed by the constitution of the state of Missouri.Second.That said levee district does not include all contiguous bodies of land lying in the said county of Perry, subject to overflow or inundation from the same crevasses, bayous, draws, or outflows from rivers, and in the same direction, and which can be protected by the same levee system of levees, but in fact include less than one-half of one contiguous body of land that can be so protected, and is subject to overflow from the same streams, and in the same direction.Third.That no notice of the intention to apply for the formation of said levee district was given.Fourth.That said chapter 101 of the Revised Statutes of Missouri is unconstitutional, in that it authorizes the taking of private property for a public use without just compensation, and in that it provides for the levy of a tax that is not uniform, the lands in said district being taxed upon their total value, and not in proportion to the benefit conferred by the proposed works; and that the lands in no way benefited by said work are thereby taxed, and taxed higher than the lands deriving the greatest benefit from said proposed work.That the said board of directors have no authority to issue the said bonds, for the reason that they have not complied with the provisions of section 6681 of the Revised Statutes of Missouri, and that the rate per cent. proposed to be levied by them has not been approved by all the landowners of said district, as provided by section 6682a of said Revised Statutes of Missouri.That said directors are proceeding to issue said bonds and incur said indebtedness without the assent of two-thirds of the voters of said district voting at an election to be held for that purpose.Plaintiff further states that all the acts of defendants and all others and of the said county court of Perry county, Missouri, in and about the formation of said levee district, and in and about the issuance of said bonds, and in and about the levy of a tax on the lands in said district for the purpose of paying the interest and principal of said bonds, are illegal, irregular, and void.Plaintiff further states that the issue of said bonds, and the making of them an apparent lien upon all the lands within the metes and bounds of said supposed levee district, will constitute a cloud upon the title of plaintiff to his said lands situated therein, and a cloud upon the title of all others similarly situated to their lands situated therein, and will work a great hardship to plaintiff and all others similarly situated, and they and he will be in great danger of having their said lands confiscated thereby, and that said lands will thereby be deprived of their market value, and the owners thereof will be unable to dispose of them, to the irreparable damage of plaintiff and all others similarly situated.That, said...