Rauch v. Himmelberger

• Decision Date: 31 July 1924
• Docket Number: 25352
• Parties: F. B. RAUCH, Appellant, v. JOHN M. HIMMELBERGER, President, and B. F. BURNS, Secretary, of Board of Supervisors of LITTLE RIVER DRAINAGE DISTRICT
• Court: Missouri Supreme Court

264 S.W. 658

305 Mo. 70

F. B. RAUCH, Appellant, v. JOHN M. HIMMELBERGER, President, and B. F. BURNS, Secretary, of Board of Supervisors of LITTLE RIVER DRAINAGE DISTRICT

No. 25352

Supreme Court of Missouri

July 31, 1924

Appeal from Butler Circuit Court; Hon. Almon Ing, Judge.

Affirmed.

Chas Chaflin Allen, Jr., for appellant.

(1) The tax sought to be levied by the respondents is a local assessment and cannot be levied upon lands which will not be directly and specifically benefited by the proposed additional work. Lockwood v. St. Louis, 24 Mo. 20; Norwood v. Baker, 172 U.S. 269; Newby v. Platte County, 25 Mo. 258; Louisana & Frankfort Plank Road Co. v. Pickett, 25 Mo. 535; 1 Page & Jones Taxation by Assessment, secs. 652, 654. (2) The action of the board in adopting the new plan and levying taxes upon the basis of the old assessment amounts to a determination by it that the same property will be benefited and in the same proportion as in the original assessment. (3) When the Legislature entrusts to a local body the duty of determining what land will be benefited by the local improvement and in what proportion due process of law requires that notice and opportunity for a hearing be given. The Act of 1923 is therefore void. Fallbrook Irrigation District v. Bradley, 164 U.S 112; Londoner v. City and County of Denver, 210 U.S. 373. (4) The Legislature may not authorize a local assessment without regard to benefits, and upon the lands of some solely for the benefit of others; such an assessment will be set aside at the instance of one so taxed in fact as a mere taking of appellant's property under the guise of a tax, in violation of Section 1 of Amendment Fourteen of the Constitution of the United States and in violation of Section 30 of Article II of the Constitution of Missouri. Myles Salt Company v. Iberia & St. Marys Parish Drainage District, 239 U.S. 478. (5) The purpose of the Legislature to empower the levy of additional taxes is not expressed in the title of the Act of April 3, 1923, and, therefore, that part of the act which attempts to do so is in violation of Section 28 of Article IV of the Constitution of Missouri. State v. Sloan, 258 Mo. 305.

Oliver & Oliver for respondents.

(1) The Legislature may fix the limits of special assessment districts and determine the benefits resulting therefrom, or it may delegate those powers to any agency it may create. The act in question constitutes a legislative determination of benefits. It accepts and approves the territorial limits of drainage districts formed under the Circuit Court Act, together with the amount of benefits judicially found to be sustained by the property within the district. The act precludes a tax in excess of the benefits assessed and meets all constitutional requirements as to due process. Laws 1923, p. 169; Houck v. Little River Drainage Dist., 248 Mo. 373; Houck v. L. R. Dr. Dist., 239 U.S. 254; Breiholz v. Pocahontas County, 257 U.S. 118; West v. Burke, 286 Mo. 358; Prior v. Construction Co., 170 Mo. 439; Barber Asphalt Co. v. French, 158 Mo. 534; Barber Asphalt Co. v. French, 181 U.S. 324; Heman v. Allen, 156 Mo. 534; Meier v. St. Louis, 180 Mo. 391; Egyptian Levee Co. v. Hardin, 27 Mo. 495; McGhee v. Walsh, 249 Mo. 266; Heman Const. Co. v. Lyon, 277 Mo. 628; Collins v. Jaicks Co., 279 Mo. 404; Spencer v. Merchant, 125 U.S. 345; Palmer v. McMahon, 133 U.S. 660; Webster v. Fargo, 181 U.S. 394; Davidson v. New Orleans, 96 U.S. 97; Wagner v. Leser, 239 U.S. 207; Branson v. Busch, 251 U.S. 182; Embree v. Road Dist., 240 U.S. 242. (2) An allegation of no benefits received "will not permit a finding for" plaintiff. In the absence of any allegation of fraud, arbitrary action or oppression the legislative finding of benefits is conclusive. McGhee v. Walsh, 249 Mo. 266; Heman Const. Co. v. Lyon, 277 Mo. 628; Prendergast Const. Co. v. Goldschmidt, 273 Mo. 191; Prior v. Construction Co., 170 Mo. 439; Heman v. Schulte, 166 Mo. 416; Houck v. L. R. Dr. Dist., 248 Mo. 373; Houck v. L. R. Dr. Dist., 239 U.S. 254. (3) There is no change in the original plan for drainage adopted by the district. The work now proposed to be done is nothing more than an amplification and strengthening of what has already been done, and thereby afford all lands equally taxed substantially the same outlets for drainage and protection from overflow. The proposed work is necessary to drain and reclaim all the lands in the district. (4) The act in question is but declaratory of the power previously conferred on boards of supervisors, namely, to construct and maintain such reclamation works as may be necessary to reclaim the district -- not to partially reclaim it. The Board of Supervisors has authority to do the work in question without relying on the Act of 1923. Appellant cannot complain so long as the cost of reclaiming the district does not exceed the benefits assessed against the property, irrespective of whether they were assessed on the theory that the lands in the district would be adequately reclaimed or whether the benefit assessed would be derived from the construction of the works provided for in the original plan and nothing more. It is conceded that all the district is not afforded adequate drainage and that it will be necessary to use additional benefits for that purpose. If the assessment were made on the other theory, namely, that appellant's lands would receive the benefit assessed by reason of the construction of the original works and nothing more, he still cannot complain because those works have been completed, and at a cost far less than the amount of the benefits assessed. Laws 1905, p. 195, sec. 8259b; Laws 1907, p. 345, sec. 8259b; Laws 1909, p. 621, sec. 8259b; R. S. 1909, sec. 5513; Laws 1913, p. 249, sec. 28; R. S. 1919, sec. 4402. (5) The title to the act is good. It contains but one subject, namely, drainage, and that is clearly expressed. Barnes v. Pikey, 269 Mo. 398; State v. Doerring, 194 Mo. 398; State v. Brodnax, 228 Mo. 25; State ex rel. v. Roach, 258 Mo. 541; Bruge v. Railroad, 224 Mo. 76; State v. Miner, 233 Mo. 312; Forgrave v. Buchanan Co., 282 Mo. 599.

James T. Blair, J. All concur, except White, J., absent.

OPINION

BLAIR

This is a suit to restrain the president and secretary of the Little River Drainage District (hereinafter referred to as the district) from certifying to the Recorder of Deeds of New Madrid County certain drainage taxes levied upon appellant's land. Respondents' demurrer to the petition was sustained. Appellant refused to plead further, judgment went accordingly, and this appeal followed.

The petition is long but, in view of the questions raised here, the facts ruled upon by the trial court in passing on the demurrer can be stated in somewhat briefer form. The district was incorporated in 1907 under the Act of April 8, 1905, Laws 1905, pp. 190 to 208, inclusive. A board of supervisors was duly elected, and qualified and organized. Respondents have held their respective offices from the beginning. Appellant owned 161 acres of land in the proposed district and still owns it. A board of engineers was appointed, made its survey and submitted it with maps and plan of reclamation to the board of supervisors. The board of supervisors adopted the report as a "plan for drainage," filed it with the Circuit Clerk of Butler County as required, and filed, concurrently, a petition for the appointment of commissioners to assess benefits and damages. The petition incorporated by reference a map which shows the plan adopted. Three qualified commissioners were appointed, who qualified, assessed the benefits and damages and filed their report. The clerk gave the statutory notice. This report came on for hearing, and, after some modifications and amendments, was approved and confirmed by the court, and copies of such approval were filed as required. Appellant's land was assessed $ 4 per acre, or $ 644. The total benefits assessed were $ 13,099,413, which was an average of about $ 22 per acre over the district. The supervisors issued bonds in the sum of $ 6,350,000, and proceeded with the work to carry out the plan of drainage. The taxes heretofore levied by the supervisors from time to time have aggregated 55.75 per cent of the benefits assessed, and were apportioned to the tracts within the district in accordance with the assessed benefits. Appellant has paid all such taxes levied against his land. The petition further alleges:

"The completion of said plan for drainage and reclaiming the lands in said district has resulted in fully and completely draining and reclaiming complainant's lands from the overflow of or damage by water or floods, and it is now impossible for them to be further benefited by the adopted equalized and improved plan for drainage hereinafter mentioned.

"That there are many areas of land within the corporate limits of said district and forming a part thereof that are not now and have not and will not receive adequate outlets for drainage and protection from overflow by reason of the execution of the original plan for drainage, but said areas of land are equally taxed with other lands in said district that are now and have and will continue to receive adequate outlets for drainage and protection from an excess of water, by reason of the execution of the said original plan for drainage. That it was the opinion of the board of supervisors of the district that in adopting the first and original plan for drainage all of the lands within the corporate limits of the district and forming a part hereof, would, by reason of the execution of said plan, receive adequate outlets for drainage and protection from an excess of water, and that such was also the opinion of the board of commissioners in assessing benefits and awarding damages...