St. John Levee and Drainage Dist. of Missouri v. Pillman

• Decision Date: 01 December 1934
• Parties: St. John Levee and Drainage District of Missouri, a Corporation, Appellant, v. Stanley M. Pillman and Mrs. Stanley M. Pillman, his Wife; W. S. Edwards, Trustees; Drainage District No. 31 of New Madrid County, a Corporation
• Court: Missouri Supreme Court

76 S.W.2d 1095

336 Mo. 93

St. John Levee and Drainage District of Missouri, a Corporation, Appellant, v. Stanley M. Pillman and Mrs. Stanley M. Pillman, his Wife; W. S. Edwards, Trustees; Drainage District No. 31 of New Madrid County, a Corporation

Supreme Court of Missouri

December 1, 1934

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge.

Reversed (with directions).

Sharp & Baynes for appellant.

(1) "The power to levy and assess taxes includes the power to adopt such measures as will make their collection prompt and effective." St. Francis Levee District v Dorroh, 289 S.W. 930, 316 Mo. 398. (2) Where a valid assessment of the defendants' lands has been made jurisdiction attaches, and the rest of the proceedings are only directory. State v. Durgan, 177 S.W. 609; State ex rel. v. Wilson, 216 Mo. 287; State ex rel. v. Bank, 120 Mo. 172; Carondelet v. Picot, 38 Mo. 130. (3) Right to levy taxes includes the right to enforce the collection of them. 61 C. J. 1115. (4) Circuit court under the Constitution having jurisdiction in civil cases, "not otherwise provided for" has jurisdiction of suits for the sale of lands for taxes. Const. of Mo., Art. VI, Sec. 22; Wellshear v. Kelly, 69 Mo. 352; Carondelet v. Picot, 38 Mo. 130. (5) Repeals by implication are not favored. 26 Mo. Digest, p. 168; State ex rel. v. Walker, 326 Mo. 1233, 34 S.W.2d 124; McGill v. City, 38 S.W.2d 725, 225 Mo.App. 1033. (6) It is only where two acts are so plainly inconsistent that they cannot stand together that the latter will repeal the former by implication. 26 Mo. Digest, p. 169; State v. Rutledge, 13 S.W.2d 1065; Barnett v. Bellows, 315 Mo. 110, 287 S.W. 604; St. Louis v. Kellman, 235 Mo. 687. (7) The specific repeal of certain sections of a statute raises a clear implication no further repeal was intended. State v. Morrow, 26 Mo. 141; Wrightsman v. Gideon, 296 Mo. 214, 247 S.W. 135; State ex rel. v. Patterson, 207 Mo. 129. (8) The act (Laws 1933, p. 425) expressly disavows any intention to repeal or change the method for collection of drainage or levee assessments. Sec. 9963d, Laws 1933, p. 448. (9) The enactment of House Bill 44 shown on page 465, Laws 1933, approved April 28, 1933, repealing and reenacting Section 9952, Article 9, Chapter 59, being later in time than the passage and approval of Senate Bill 94 (approved April 7, 1933) supersedes the latter if any conflict and House Bill 44 provides a complete code from the collection of state and county taxes. Laws 1933, p. 465; State ex rel. v. Heidorn, 74 Mo. 410; State ex rel. v. Crawford, 303 Mo. 661; Peavy v. McCombs, 26 Idaho 143; Heilig v. City Council, 7 Wash. 29; 59 C. J. 910.

Frank K. Ashby and W. Clifton Banta for respondents.

(1) Taxes and special assessments can only be collected as provided by statute. State ex rel. Hayes v. Snyder, 139 Mo. 549, 41 S.W. 216; State ex rel. Hibbs v. McGee, 328 Mo. 1176, 44 S.W.2d 36. (2) An act containing an emergency clause will prevail over another act passed at the same session, only until the other act becomes effective. 59 C. J. 930. (3) A court, in construing a statute, should avoid an unreasonable construction where a reasonable one can be adopted. State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110. (4) When a statute like the one under consideration refers to the general provisions of the law on a given subject for its interpretation, then an amendment of the general laws on that subject effects a corresponding amendment of the statute adopting them. McKnight v. Crinnion, 22 Mo. 559; Gaston v. Lamkin, 115 Mo. 20, 21 S.W. 1100; St. Louis v. Gunning Co., 138 Mo. 347, 39 S.W. 788; State v. Williams, 237 Mo. 178, 140 S.W. 894; State v. Rogers, 253 Mo. 399, 161 S.W. 770; Crohn v. Telephone Co., 131 Mo.App. 313, 109 S.W. 1068; Bowser v. Garwitz, 185 Mo.App. 420, 170 S.W. 927. (5) A saving clause in a statute is not always effective as set out therein. 59 C. J. 924; McKnight v. Crinnion, 22 Mo. 559.

B. H. Charles, amicus curiae.

(1) That the Jones Act meant just what it said, in Section 9963d (in exempting the collection of drainage or levee assessments or other special assessments from the provisions of the act), is thoroughly borne out by the subsequently enacted statute, approved January 6, 1934. Laws 1933-34 (Ex. Sess.), p. 154. (2) If the Jones Act must be construed as destroying any and all remedies for the collection of drainage and levee taxes, the act is void as impairing the obligation of a contract. Const., U.S., Art. I, Sec. 10; Const., U.S., Amend. 14; Const., Mo., Art. II, Sec. 15; Louisiana v. New Orleans, 102 U.S. 207, 26 L.Ed. 132; Hendrickson v. Apperson, 245 U.S. 113, 62 L.Ed. 184; Moore v. Otis, 275 F. 751. (a) If the law is so changed that the means of enforcing a contract are materially impaired, the obligation of the contract no longer remains the same. Green v. Biddle, 21 U.S. 1; Jackson v. Lamphire, 28 U.S. 280; Bronson v. Kinzie, 42 U.S. 311; McCracken v. Hayward, 43 U.S. 612; Grantley v. Ewing, 44 U.S. 717; Curran v. Arkansas, 50 U.S. 304. (b) The obligation of a contract is impaired, where the revenue is taken away or abolished or the legal obligation is diminished, suspended or destroyed by relaxing or abolishing the legal remedy, or the proceedings for enforcement are burdened with new conditions or restrictions. Louisiana v. New Orleans, 102 U.S. 207. (c) The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced. Louisiana v. New Orleans, supra; 2 McQuillin Mun. Corp. (2 Ed.), sec. 802. (3) In construing the legislation the court will consider the injuries which might be inflicted on strangers to the suit and to the public generally. Lyons v. School District, 311 Mo. 368; Bailey v. Culver, 84 Mo. 540; 16 Am. & Eng. Ency. of Law (2 Ed.) 363; State ex rel. Davis v. State Highway Comm., 312 Mo. 242.

Westhues, C. Cooley, C., concurs.

OPINION

WESTHUES

This is an appeal from a judgment of the Circuit Court of New Madrid County quashing an execution based upon a judgment for unpaid levee and drainage taxes assessed against the land of respondent, Stanley M. Pillman, and in favor of appellant.

Appellant filed suit against Pillman in the circuit court and obtained a judgment for unpaid taxes. The judgment was entered October 7, 1933. On December 1, of the same year, a special fieri facias was issued under which a levy was made and the land, subject to the tax judgment, was advertised for sale at the January, 1934, term of court.

No question was raised, by respondents, as to the legality of the proceedings in obtaining the judgment, or in the levy and advertisement of sale. However, in the motion to quash, it was alleged that the execution was void because the Legislature of 1933, had repealed the law authorizing the sale of lands by execution as attempted to be done in this case. The position of respondents is that by the enactment of Senate Bill No. 94, found at pages 425 to 449, inclusive, Laws of 1933, referred to in the briefs as the Jones Act, the Legislature repealed Section 9952, Revised Statutes 1929, and the procedure prescribed in the new act, which does not authorize a sale under execution, applies to the enforcement of drainage and levee district taxes.

Appellant corporation was incorporated under Article VI, Chapter 64, Revised Statutes 1929. Section 10927 of that article prescribes in what manner and mode delinquent levee taxes are to be enforced. The section contains the following clause:

"The pleadings, process, proceedings, practice and sales, in cases arising under this article shall, except as herein provided, be the same and have the same effect as in an action for the enforcement of the State's lien for the delinquent general taxes upon real estate." (Italics ours.)

It was conceded that by this reference the procedure prescribed in Section 9952 of the general revenue act controlled the procedure in the enforcement of levee and drainage taxes in such matters wherein the levee and drainage district laws were silent. We will make a number of references to Section 10927 and, therefore, we think it best to embody a part of it in this opinion. It reads:

"The 'levee tax book' of the district, as returned by the collector of the revenue to the secretary of the board of supervisors of the levee district shall be prima facie evidence in all courts of all matters therein contained. The liens established and declared in the preceding sections may and shall be enforced by an action on delinquent tax bills, made and certified by the county collector, which action shall be instituted in the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied. The suits shall be brought in the corporate name of the district by its attorney against the land or lands, property or properties, on which such levee tax has not been paid. The suit shall be brought in the county in which the property is situate, except when the tract or property sued upon be in more than one county, in which event the suit may be brought on the whole tract, parcel or property in any county in which any portion thereof may be situate."

It will be noted that the above section contains certain specific directions as to how suits for the enforcement of levee taxes shall be brought, which provisions are at variance with the law pertaining to suits for state taxes. For example, the section requires that suit be brought within six months after the taxes become delinquent. Suits are to be brought in the name of the district and not in the name of the county collector. The attorney for the district is required to file these suits and not...