Sam Watts v. Levee District No. 1, Mississippi County, Missouri

• Decision Date: 05 March 1912
• Citation: 145 S.W. 129,164 Mo.App. 263
• Parties: J. SAM WATTS, Appellant, v. LEVEE DISTRICT NO. 1, MISSISSIPPI COUNTY, MISSOURI, Respondent
• Court: Missouri Court of Appeals

145 S.W. 129

164 Mo.App. 263

J. SAM WATTS, Appellant, v. LEVEE DISTRICT NO. 1, MISSISSIPPI COUNTY, MISSOURI, Respondent

Court of Appeals of Missouri, St. Louis

March 5, 1912

February 8, 1912, Argued and Submitted

Appeal from Mississippi Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

STATEMENT.--This is an action to enforce payment of sixteen warrants in the following form:

"OFFICE OF LEVEE DISTRICT NUMBER ONE.

Charleston Mo.

To the Treasurer of Mississippi County.

Pay out of any money in the treasury belonging to said Levee District, to A. C. Harris dollars, with interest thereon at the rate of eight per cent per annum, from date of presentation to you for payment until sufficient funds of said district are in the treasury to pay the same.

Done by order of the Board of Directors this day of , 189-.

W. T MARSHALL, Secretary.

THOMAS BECKWITH, President."

The first of the warrants bears date of issue December 15, 1894 the last March 2, 1895. They run in amount from six dollars and seventy cents, the smallest, to one hundred dollars, the largest. They were all protested on presentation to the treasurer of the county for payment, on the ground that there was no money on hand belonging to defendant, the protests being dated from December 17, 1894, to March 4, 1895. They aggregate $ 743.37, principal, and were all assigned by Harris to plaintiff, who demands judgment on each of them.

The answer, after a general denial, set up the notices and proceedings connected with the issue of these warrants, it being admitted that they were all issued in pursuance of a resolution passed at a meeting of part of the landowners in Levee District No. 1, held at Bird's Mill, November 28 1893. It was further set up in the answer that these warrants were all issued without authority of law and without authority of defendant, and in pretended payment of certain work not authorized by this defendant; that they were issued under pretended authority of the above named meeting, all the proceedings of which meeting, it is averred, were adjudged illegal and void by the Supreme Court of this state in the case of State ex rel. F. M. Stotts v. Alice and B. J. Wall, a suit brought to collect the tax authorized by that meeting for the payment of the warrants in suit and others of like character, the case referred to being reported 153 Mo. 216 54 S.W. 465, decided December 22, 1899. Wherefore defendant charges that these instruments are void and constitute no charge against defendant.

The reply, or replication, as it is incorrectly called, after denying all the allegations in the answer, sets out the proceedings leading up to the organization of the levee district, which were had on August 6, 1892, and avers that in pursuance of apparent authority given to them by the landowners of the district prior to May 17, 1900, the board of directors had constructed about seventeen miles of levee and issued warrants aggregating $ 62,115, in payment for that work, these warrants including those sued on, and had caused a tax to be levied upon the lands in the district for the purpose of paying the warrants, and had paid, after the issue of the warrants, about $ 40,000 thereof. It is further set up in the reply that on December 8, 1899, after the decision in the Stotts-Wall case, above referred to, by the Supreme Court, and with full knowledge of the contents of that decision, the board of directors of the levee district had met and, as provided by law, determined and ordered that the levee should be built around and along the river front of the levee district from the New Madrid county line in the Mississippi river northward along the river to the north end of the levee district extending along the north end of Big Lake to the "Still House," including the seventeen miles of levee theretofore built, and for the payment of which the warrants sued on were issued; that at that meeting the board had ordered "that accurate surveys, maps and profiles of said levee to be constructed, and repairs to be made," be furnished and that estimates and calculations of the cost of that work be made showing the amount, character and kind of work to be done, the exact location and probable cost thereof, and appointed a competent civil engineer to do the work; that afterwards, on May 7, 1900, the board of directors of the levee district met and by resolution ordered the assessment of a tax on all lands within the levee district to be benefited, "for the purpose of defraying the expenses of surveys, and estimates of levees or other work and the cost thereof, maintain the same and pay such officers, agents, servants and employees as are allowed compensation by law," the board also ordering that a certified copy of the resolution be transmitted to the clerk of the county court of the county; that in accordance with this resolution the tax so levied was extended on the tax books of the county on the real estate to be benefited by the proposed work, and had been so extended and collected from year to year as other taxes; that the county assessor filed the assessment books of the district with the clerk of the county court and a copy thereof with the president of the board of directors of the district; that the civil engineer filed his report and estimates with the board of directors of the district; that afterwards, the board of directors called a meeting of the landowners in the district, to be held June 21, 1900, at a place designated on the line of the proposed levee work, and caused notice of the meeting to be published and posted as required by law; that pursuant to that resolution and notice a meeting of the landowners in the district was held at the place and on the date designated, at which meeting the report, specifications, surveys, maps, profiles and estimates as made by the engineer, "which included the seventeen miles of levee theretofore built for the payment of which the warrants herein sued on were issued, was submitted, together with the assessment as returned by the county assessor to the meeting of said landowners for their ratification or rejection, and that at said meeting it was then and there determined by a majority of the landowners of the district present to do the work according to the report, specifications, surveys and profiles submitted by the engineer of said district." It is further averred that since that meeting of July 21, 1900, the board of directors of the district has expended large sums of money in building levee and repairing and strengthening the seventeen miles of levee which had been built "and is exercising ownership and control of all levee built and paid for with the warrants herein sued on." It is further averred in the reply that all the acts and proceedings of the board of directors and landowners of the district were done and had with full knowledge that a large amount of levee had been constructed and that warrants issued in payment for this work were outstanding and unpaid; that all work for which the warrants had been issued was done in good faith by the several contractors and the warrants were issued by the board of directors and received by the contractors in good faith, and that the defendant district has received and is yet receiving great benefits from the work for the payment of which the warrants were issued, wherefore it is averred that by reason of the premises the defendant levee district has fully ratified and confirmed the action of the board of directors in issuing the warrants and is now estopped by reason of the premises aforesaid to deny the validity of the warrants.

The trial was before the court, a jury having been waived. It was admitted that the district was legally organized; that the warrants sued on were issued by order of the board of directors of the defendant district and were signed by the proper officers of the district; that plaintiff is the owner of the warrants; that they were due (had matured) and were unpaid at the time the suit was filed; that they were issued in part payment of work and labor performed in the construction of about seventeen miles of levee, as alleged in the reply; that they were all presented to the county treasurer of the county and protested by him on the several dates mentioned. One of the warrants for one hundred dollars was introduced as a sample of all the warrants save as to the amount, date, number and date of protest. These facts were agreed to as constituting plaintiff's evidence in chief.

It was also agreed that all these warrants were issued in pursuance of a resolution passed at a meeting of part of the landowners in District No. 1, held Nov. 28, 1893. The petition in the case of State ex rel. Stotts, Collector v. Wall et al., above referred to, was in evidence and it was admitted that that suit was for taxes levied by the board of directors of the levee district for the purpose of paying the warrants in suit, and other warrants of like character, all issued in pursuance of the meeting of landowners held November 28, 1893. The judgment of the Mississippi County Circuit Court in the Stotts-Wall case, in favor of plaintiff, the affidavit for appeal in that case and the opinion of the Supreme Court were in evidence, these all being offered and admitted subject to plaintiff's objection that he was not a party to that suit; that it was a suit to recover taxes and not on any warrant by the levee district. Defendant also introduced the notice to the landowners in the levee district, of date October 27, 1893, by which it appeared that the district specified was less than the whole levee district. It also introduced the proceedings of the board at the landowners' meeting of November 28, 1893.

In rebuttal plaintiff introduced all the records of the meetings of...