Robins v. Latham

• Decision Date: 02 June 1896
• Citation: 36 S.W. 33,134 Mo. 466
• Parties: Robins, Appellant, v. Latham
• Court: Missouri Supreme Court

36 S.W. 33

134 Mo. 466

Robins, Appellant, v. Latham

Supreme Court of Missouri, Second Division

June 2, 1896

Appeal from New Madrid Circuit Court. -- Hon. H. C. Riley, Judge.

Affirmed.

Robert Rutledge and W. H. Miller for appellant.

(1) First. Section 6669 and the following, Revised Statutes of 1889, provides what territory may be organized into a levee district by the county courts in the several counties and the method to be pursued in procuring said organization; the qualification of the members of the levee board, etc. Each of the provisions of said section is negatived by the petition. The petition charges in substance the failure to comply with any of the regulations required by the statute preliminary to the organization of the levee district; and hence the district was in fact without power to act. Second. Such an organization as a levee district was unknown until created by statute, and it being a creature of the statute the condition therein designated and the method of organizing must be strictly pursued. Section 6677 makes the county treasurer the treasurer of the levee board; hence he is made defendant in this proceeding. The formation of levee districts is purely statutory. Hence if not carried out strictly the county courts have no jurisdiction and their acts are coram non judice. Levee districts may be formed at any regular term of the county court after notice. In the case at bar the petition charges that no notice was given. R. S. 1889, sec 6671. County courts are only the agents of the county, with no powers except those granted, defined and limited by law and like all other agents they must pursue their authority strictly and act within the scope of their power. Stein v. Franklin Co., 49 Mo. 169. (2) This suit is properly brought in the name of any taxpayers whose rights may be affected by the illegal diversion of the fund complained of. Newmeyer v. Railroad, 52 Mo. 81. Injunction lies on suit of a taxpayer to restrain any illegal diversion of public funds, which municipal officers in charge of the funds are about to make. Black v. Ross, 37 Mo.App. 250; Ranney v. Bader, 67 Mo. 476; Ruly v Schoen, 54 Mo. 207. Chancery has jurisdiction to enjoin public officers who are proceeding illegally and improperly under a claim of right, to the injury of private property, or when it is necessary to prevent a multiplicity of suits. M. & H. R. R. Co., 6 Paige, 83. At the suit of a taxpayer a town treasurer was enjoined from paying out moneys collected by him in an official capacity. State v. Kisbert, 21 Wis. 387. (3) In the case at bar there is no adequate remedy at law, and if there was it would result in a multiplicity of lawsuits; hence the remedy sought is the proper and only available one. Sedalia Brewery Co. v. Sedalia Waterworks, 34 Mo.App. 49; Towne v. Bower, 81 Mo. 491; Harris v. Board, 22 Mo.App. 462; McPike v. West, 71 Mo. 199.

R. B. Oliver for respondent.

(1) Injunction will not lie when there is an adequate remedy at law. This is a well established rule and hardly needs a citation to support it. High on Injunction [2 Ed.], sec. 28, p. 24. Also secs. 486, 487, 488, and cases cited. (2) The bill avers that appellant paid the tax, but "under protest." The bill is silent as to how he protested. No reason is disclosed for doing so. He does not inform the court what was done by the collector that induced him to protest. He does not say that his property was seized, or levied upon, or was about to be sold by the collector. First. This "protest" must have been a voluntary payment as there is no allegation of seizure or sale or threatening of doing either. Claflin v. McDonaugh, 33 Mo. 412; Wolf v. Marshall, 52 Mo. 167. Second. Equity will not restrain an act, the doing of which could work no substantial injury to the complainant. Dickhaus v. Olderheider, 22 Mo.App. 76. Third. General averments and conclusions will not do. The facts should be affirmatively shown in the bill. High on Injunction, sec. 490.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an appeal from the judgment of the circuit court of New Madrid county, sustaining a general demurrer to plaintiff's petition.

Omitting the caption the petition is as follows:

"The plaintiff herein, first having obtained leave of court, filed this, his amended petition, and for cause of action says that he sues for himself and others similarly situated within the limits of the territory hereinafter designated.

"For their cause of action these plaintiffs say that at the August term, 1892, of the county court of New Madrid county Missouri, there was presented to the county court as aforesaid a petition, as plaintiff is informed and believes, asking that the townships of Lessieur and Portage in said county be formed into a levee district in conformity with the provisions of section 6669, of the Revised Statutes of 1889.

"That said petition was fatally defective and conferred on said court no jurisdiction to act, in that it was not signed by a majority of the taxpaying citizens of said township, in that there was no notice given of the intention to present said petition, as by law required, and in that the territory sought to be organized into a levee district was not composed of overflowed or submerged real estate.

"That upon the presentation of said pretended petition, as aforesaid, and without notice to the parties in interest, the county court, while without jurisdiction to act in that behalf, pretended and attempted to, by its order of record, organize said territory into a levee district. That said pretended order is void and of no effect, for the reason that said court had no jurisdiction to act in the premises.

"That by said pretended order the county court, as aforesaid, designated and attempted to appoint J. J. Williams, John C. Huffman, and J. F. Girvin a board of directors for said pretended levee district. That said levee board so designated and appointed were without any authority in law to act, and all its pretended acts were in law void and of no effect.

"That, notwithstanding they had no legal existence or authority in that behalf to act, the said pretended levee board, so as aforesaid created and appointed, undertook to levy a tax of two and one half mills on the dollar on all of the taxable property within the territorial limits aforesaid, to defray the expenses of a survey or pretended survey. That, in pursuance of said illegal and void action of said pretended board, the clerk of the county court of New Madrid county as aforesaid extended on the tax books of said county the levy as aforesaid made. That the collector of the revenue of said county collected the tax so extended and has conveyed the fund so collected into the county treasury. That the defendant is the treasurer of said county and as such acting as the treasurer of said pretended levee district and in that capacity is now sued.

"That this plaintiff and others similarly situated paid said tax under protest. That plaintiff is a resident taxpayer of said pretended levee district and is a large landowner therein. That the great bulk of his realty and of those in whose behalf this suit is instituted is not submerged or overflowed land and can not under the law be included in a levee district. That notwithstanding this fact all of their said land indiscriminately is included and made to bear a part of the pretended tax so as aforesaid levied and collected.

"That said pretended action of the county court and of its creature, the pretended levee board, is void and in contravention of the provision of section 20, article 2, of the constitution of the state of Missouri, in that it seeks to take and appropriate private property for private use without compensation. Said pretended action is likewise void and of no effect for the further reason that it is in contravention of section 1 of article 10 of...