Morrison v. Morey

• Decision Date: 08 December 1898
• Citation: 48 S.W. 629,146 Mo. 543
• Parties: Morrison v. Morey et al., Plaintiffs in Error
• Court: Missouri Supreme Court

48 S.W. 629

146 Mo. 543

Morrison v. Morey et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

December 8, 1898

Error to Ste. Genevieve Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

T. B Whitledge and Edward A. Rozier for plaintiffs in error.

(1) Quasi corporations (subdivision of the State) are but instrumentalities of the State, and the State incorporates them that it may more effectively discharge its duty; they are political or civil divisions of the State created by general law, to aid the administration of government. They are purely auxiliaries of the State Their powers relate to subjects purely of State concern. Dillon on Mun. Corp., sec 25; Beach on Mun. Corp., sec. 4. (2) The levee district is not a "political corporation or subdivision" of the State as defined by section 12 of article X of the Constitution. Dillon on Mun. Corp. [3 Ed.], secs. 20, 22, 23 56 and 57; Cypress Pond Co. v. Hooper, 2 Mete. 350; Heller v. Stremmel, 52 Mo. 309; State v. Leffingwell, 54 Mo. 458; Ten Eyck v. Canal Co., 3 Harr. 200; Regents of University v. Williams, 9 Gill & John's (Md.) 365. (3) It is rather a private corporation, for it is created for the benefit of private property. Ten Eyck v. Canal Co., 3 Harr. 200; Egyptian Levee Co. v. Hardin, 27 Mo. 495. (4) The indebtedness herein sought to be created by the issuing of the bonds is not such indebtedness as is prohibited by section 12 of article X of the Constitution, it being for the assessment of benefits on the lands benefited within said district by the construction of the levee. Farrar v. St. Louis, 80 Mo. 379; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Garret v. St. Louis, 25 Mo. 505; Newley v. Platte Co., 25 Mo. 259; Lockwood v. St. Louis, 24 Mo. 20; Sheehan v. Hospital, 50 Mo. 155; St. Joseph v. Owen, 110 Mo. 445; Lamar v. City of Lamar, 128 Mo. 188; City of Clinton v. Henry Co., 115 Mo. 557; Roosvelt H. Co. v. Mayor, 84 N.Y. 108; Deal v. Mississippi Co., 107 Mo. 464; Cooley on Const. Lim., sec. 479. (5) The various provisions of the State Constitution regulating and limiting the mode of taxation do not apply to local assessments to pay for local improvements. Farrar v. St. Louis, 80 Mo. 379; City of Independence v. Gates, 110 Mo. 374; Lockwood v. St. Louis, 24 Mo. 20; Newley v. Platte Co., 25 Mo. 505; Palmyra v. Morton, 25 Mo. 593; Egyptian Levee Co. v. Hardin, 27 Mo. 496; St. Louis v. Clements, 36 Mo. 467; Uhrig v. St. Louis, 44 Mo. 458; State ex rel. v. St. Louis, 62 Mo. 244; Adams v. Lindell, 72 Mo. 198; St. Louis v. Spiegel, 75 Mo. 145. (6) Provisions of the Constitution relating to revenue, uniformity and equality of taxes make no change in the law as to assessments for local improvements. Adams v. Lindell, 72 Mo. 198. They are compensations for benefits received or to be received. Hassen v. Rochester, 67 N.Y. 530; McGonnigle v. Alleghany, 44 Pa. 118; Litchfield v. Vernon, 41 N.Y. 123; Wright v. Cushing, 9 Cush. 233; Lockwood v. St. Louis, 24 Mo. 20; Kansas City v. Holden, 107 Mo. 305. (7) The courts recognize an important distinction between "taxation" for general purposes of revenue and "assessments" for benefits, as used in the Constitution and Statutes. 25 Am. and Eng. Ency. of Law, 494; Munson v. Levee District, 43 La. Ann. 15; Bridgeport v. Railroad, 36 Conn. 262; Macon v. Patty, 57 Miss. 86; Taylor v. Palmer, 31 Cal. 254; McGonnigle v. Alleghany, 44 Pa. 121; Green v. Ward, 82 Va. 327; People v. Austin, 47 Cal. 353; Hayden v. Atlanta, 70 Ga. 817; Davis v. New Orleans, 40 La. Ann. 806; Brooks v. Baltimore, 48 Md. 265. (8) The words "in any manner or for any purpose," in section 12 of article X of the Constitution, apply only to general taxation, where the indebtedness is created for public purposes. City of Clinton v. Henry Co., 115 Mo. 557; Sheehan v. Hospital, 50 Mo. 155; Lockwood v. St. Louis, 24 Mo. 20; In re New York, 11 Johns, 80; Northern Liberties v. St. John's Church, 13 Pa. 107; Cowley v. Copley, 2 La. Ann. 329.

Ralph E. Sprigg and Charles E. Killian for defendant in error.

The proposed issue of bonds to an amount in excess of the limit provided by section 12 of article X of the Constitution is unconstitutional: First. Because the district is a political corporation and a subdivision of the State. It is a corporation because it has all the attributes and powers of a corporation. Bouvier's Law Dic., title Corporation; Beach on Public Corp., sec. 1. It is a political corporation. Elmore v. Drainage Com., 135 Ill. 269; 1 Beach on Public Corp. [Ed. 1893], secs. 2, 3, 4 and 262; State ex rel. v. Stewart, 74 Wis. 620; Wilton v. Trustees, 27 N.E. 203; People ex rel. v. Nibbe, 37 N.E. 217; Johnson v. San. Dist., 45 N.E. 213; Nugent v. Board of Levee Com., 58 Miss. 197. It is a political subdivision of the State. 1 Beach on Pub. Corp. [Ed. 1893], sec. 3; State ex rel. v. Leffingwell, 54 Mo. 475; Elmore v. Drainage Com., 135 Ill. 269; Winspear v. Dist. Town of Holman, 37 Iowa 542; Haurayausen v. Improv. Com., 45 N. J. L. 113. First. The authority of the legislature to provide for the compulsory formation of drainage and levee districts is based solely on its power to enact police regulations. The State can not compel its citizens to become members of a private corporation organized for strictly private purposes, nor can the State compel the owner of the property to improve it unless public considerations are involved. Elmore v. Drainage Com., 135 Ill. 269; Duke v. O'Bryan, 39 S.W. 444; R. S. 1889, secs. 6669 to 6682; acts 1885, p. 217. Second. Because the act itself is unconstitutional in that it does not provide for a day in court for one whose lands will not be benefited by the proposed work, and are wrongfully included in the district. Moulton v. Parks, 64 Cal. 166; Bradley v. Fallbrook Irrigation District, 68 F. 948. Third. In that it does not provide for the payment of damages to lands not included in the district, but damaged by its works. And in that the method of assessing the taxes wherewith to pay for the work is not uniform upon persons or property, of the same class, within the district, nor is it based upon benefits to the property benefited, but it is unreasonable and unjust and is the taking of private property for a public use without just compensation. And because it is unconstitutional as a local assessment, the method of collecting the taxes making it a personal charge against the person to whom the property is assessed. Asberry v. City of Roanoke, 22 S.E. 360.

OPINION

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, Revised Statutes of Missouri, 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 District No. 1, lying in Perry county, Missouri, and the boundaries thereof designated as follows, to wit: beginning at a point on the old Clearyville 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 Clearyville 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 work.

With 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

640.00 a, survey No. 1879, township 36,

range 11

4,000

7,200

127.29 a, part lot 1 of survey 1881, townships

36 and 37, range 11

1,200

1,835

"Plaintiff further states that the defendants, asserting...