Norborne Land Drainage Dist. Co. of Carroll County v. Cherry Valley Tp., of Carroll County

• Decision Date: 03 September 1930
• Docket Number: 29691,29692
• Citation: 31 S.W.2d 201,325 Mo. 1197
• Parties: Norborne Land Drainage District Company of Carroll County v. Egypt Township of Carroll County, Appellant. Norborne Land Drainage District Company of Carroll County v. Cherry Valley Township of Carroll County, Appellant
• Court: Missouri Supreme Court

31 S.W.2d 201

325 Mo. 1197

Norborne Land Drainage District Company of Carroll County v. Egypt Township of Carroll County, Appellant. Norborne Land Drainage District Company of Carroll County v. Cherry Valley Township of Carroll County, Appellant

Nos. 29691, 29692

Supreme Court of Missouri

September 3, 1930

Motion for Rehearing Overruled September 3, 1930.

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

W A. Kitchen for appellants; Henry Depping of counsel.

(1) The district is without power to levy any taxes against the highways in the defendant townships, because: (a) The townships were not made parties to the proceedings to create the district, nor were they named in the articles of association as the owners of any lands or other property in said district as required by Sec. 4378, R. S. 1919. This requirement is mandatory and jurisdictional. 19 C. J. 640; North Kansas City Levee District v. Hillside Securities Co., 268 Mo. 654; Elsberry Drainage District v Harris, 267 Mo. 148; Nishnabotna Drainage District v. Campbell, 154 Mo. 151; Young v. Wells, 97 Ind. 410; Zumbro v. Parnin, 141 Ind. 430; Vizzard v. Taylor, 97 Ind. 90; Troyer v. Dyar, 102 Ind. 396; American Steel Drainage Works v. Putnam, 170 Ind. 571. (b) The highways were not described in the articles of association to create the district as required by Sec. 4378, R. S. 1919. This requirement is mandatory and jurisdictional. 19 C. J. 641; Hillside Securities case, 268 Mo. 654; State v. Burrough, 174 Mo. 700; Boatman v. Macy, 82 Ind. 491; Young v. Wells, 97 Ind. 410. (c) The townships were given no notice of the proceedings to create the drainage district, as required by law. Notice as required by Sec. 4379, R. S. 1919, is jurisdictional. 19 C. J. 648, 650; 9 R. C. L. 637; Ann. Cases, 1915C, 17; 3 Cooley on Taxation (4 Ed.), 2264; St. Louis v. Ranken, 96 Mo. 497; Embree v. Road District, 257 Mo. 613; State v. Arcadia Timber Co., 178 S.W. 95; Drainage District v. Arcadia Timber Co., 315 Mo. 597; Road Co. v. Flack, 105 Ind. 37; Brosemer v. Kelsey, 106 Ind. 504; Comrs. of Highways v. Drainage District, 127 Ill. 581. (d) The townships have in no manner been summoned into court, have been accorded no hearing on the question of benefits to the highways and have never had their day in court. To deny them these rights would deprive them of their property without due process of law. 19 C. J. 727; 6 R. C. L. 444, 446; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 963; Grannis v. Ordean, 234 U.S. 394, 58 L.Ed. 1369; Hillside Securities case, 268 Mo. 654; Elsberry Drainage District v. Harris, 267 Mo. 139; Mound City Land & Stock Co. v. Miller, 170 Mo. 259; Young v. Wells, supra; Zumbro v. Parnin, supra. (2) The assessments in these cases, having been made in the name of Carroll County, are void because made in the name of one not the owner of the property assessed. Such an assessment is fatally defective and void. 19 C. J. 757; 3 Cooley on Taxation (4 Ed.), 2216; Abbott v. Lindenbower, 42 Mo. 162; Hume v. Wainscott, 46 Mo. 145; St. Louis v. Ranken, 96 Mo. 497; Blevins v. Smith, 104 Mo. 590; Sedalia v. Gallie, 49 Mo.App. 396; State v. Hamilton, 293 S.W. 379; Vizzard v. Taylor, 97 Ind. 90; Young v. Wells, 97 Ind. 410; Troyer v. Dyar, 102 Ind. 396. (3) The plaintiff is estopped to claim of these defendants the taxes, penalties and attorneys' fees herein sued for. 21 C. J. 1202; 10 R. C. L. 696; Wyatt v. White, 192 Mo.App. 559; Randolph v. Hunting & Fishing Club, 15 S.W.2d 834; Western Clay Drainage District v. Wynn, 18 S.W.2d 1035; Levee Inspectors v. Land & Timber Co., 112 Ark. 467, 166 S.W. 589. (4) The district is barred from recovering in these cases by reason of limitation. Sec. 4400, R. S. 1919; 19 C. J. 755; Bartlett v. McAllister, 289 S.W. 817; Bowersock Mills & Power Co. v. Trust Co., 298 S.W. 1050. (5) The court erred in rendering judgment for penalties. 21 C. J. 193; 37 Cyc. 1544, 1545; Dorroh case, 289 S.W. 925; St. Joseph v. Forsee, 110 Mo.App. 237. (6) Judgment for attorneys' fees was improper because not based on any legal evidence. Crosby v. Evans, 281 Mo. 202; Buck v. Buck, 267 Mo. 644. (7) The demurrers to the evidence offered by defendants at the close of plaintiff's case and at the close of all the evidence, should have been sustained, because: (a) Plaintiff did not prove a valid and legal assessment against the defendants. 19 C. J. 757; State v. Arcadia Timber Co., 178 S.W. 93; Brosemer v. Kelsey, 106 Ind. 504. (b) If plaintiff made a prima-facie case by offering in evidence the tax bills and the drainage tax book, it was completely overturned when defendants showed that the tax bills are not based on a valid assessment. 19 C. J. 757; Hillside Securities case, 268 Mo. 654; State v. Bank, 160 Mo. 648; State v. Cunningham, 153 Mo. 642. (c) Plaintiff's evidence is insufficient because there is no proof of any demand as required by statute, Sec. 4396, R. S. 1919; 19 C. J. 755; Bate v. Sheets, 50 Ind. 329; Murphy v. Clinton, 182 Mass. 198. (8) The petition is fatally defective and the evidence is insufficient because there is no allegation or proof that the townships had knowledge of the assessments against the highways. Troyer v. Dyar, 102 Ind. 396. (9) The court erred in refusing to permit defendants to show that a portion of the taxes and penalties sued for were assessed against highways owned and controlled by the State Highway Commission. Harrison County case, 297 S.W. 1, 317 Mo. 933; Bates County case, 269 Mo. 78.

S. J. & G. C. Jones and Franken & Timmons for respondents.

(1) Plaintiff made a prima-facie case by the introduction of the tax bills and drainage tax books for the year for which the taxes were delinquent. Sec. 4400, R. S. 1919; State ex rel. Kersey v. Sims (Mo. App.), 286 S.W. 835; North Kansas City Levee District v. Hillside Securities Co., 268 Mo. 654. (2) Plaintiff having made a prima-facie case defendants had the burden of proving that the proceedings organizing the drainage district, reorganizing same, extending its boundary lines, and assessing benefits and damages were void as affecting the public highways in the defendant townships assessed with drainage benefits. The defendants are making a collateral attack upon the proceedings, and are required to prove that they are void as affecting the highways. 19 C. J. 758, sec. 288; State ex rel. McBride v. Sheetz, 279 Mo. 437; State ex rel. v. Blair, 245 Mo. 687; State ex rel. v. Mining Co., 262 Mo. 503; Norborne Land Drainage District Co. v. Stratton (Mo. App.), 260 S.W. 509; State ex inf. McAllister v. Albany Drainage District, 290 Mo. 62; Barnes v. Mo. Valley Construction Co., 257 Mo. 175. (3) The Norborne Drainage District was originally incorporated by decree of the Circuit Court of Carroll County, on May 12, 1899, under the provisions of Secs. 6517-6529, R. S. 1889. This law is the same as Secs. 8251-8264, R. S. 1899, except minor amendments not here material. Under this act, there is no provision for the assessment of benefits against public highways. Neither is there any provisions defining the word "owner" as used in said act. The articles of association, therefore, for the original incorporation of the district, did not and could not describe public highways as such, neither were public highways described as such in the decree originally incorporating the district. The district was re-organized under the Circuit Court Act of 1913, Laws 1913, pages 232 to 267, inclusive, and the articles for re-incorporation under Section 53 of said act are required to describe the lands and property in the district as described in the decree incorporating the district and to name the owners thereof as appear in the then record of the district. No highways being described as such in the original incorporation, and consequently no owners of highways named therein, the articles of re-incorporation could not describe highways as such nor name any owners, even if such were necessary, and the decree re-incorporating the district could, of course, be no broader than the petition. By the law under which plaintiff district was incorporated and re-incorporated, it was therefore not required to describe the public highways as such in the district and since same were not required to be described no owner could be named. Furthermore, the benefits on which the tax levies involved herein were made were under the decree of December 23, 1919, extending the boundaries of the district. Art. 3, Chap. 122, R. S. 1899, Secs. 8251-8264; Laws 1913, Secs. 53, 54, 55, pp. 263, 264. (4) Even though plaintiff drainage district had been originally incorporated under the Circuit Court Drainage Act of 1913 which authorizes public highways to be assessed with benefits, it would not have been necessary to describe the public highways as such and consequently not necessary to name any owners of the highways, if it could be said that public highways can be owned. This for the reason that under Sec. 39 of the Act of 1913, pp. 253, 254, Laws 1913, which is the same as Sec. 4415, R. S. 1919, the word "owner" as used in the act means "the owner of the freehold estate, as appears by the deed record." Consequently, had the district been incorporated under said Act of 1913 which requires the names of the owners of land or other property in the district, together with a description of the lands and other property owned by each to be set out in the articles of association, it would not have been necessary to describe the public highways as such and therefore to name any owners thereof. Had the district been incorporated under said act, it would have been necessary to describe only the freehold estate in the lands and give the ownership thereof as appeared by the deed record in Carroll County. It is admitted in these suits that the real...