State ex rel. and to Use of Stoecker v. Jennings Sewer Dist. of St. Louis County

• Decision Date: 04 September 1933
• Docket Number: 32778
• Citation: 63 S.W.2d 133,333 Mo. 900
• Parties: State of Missouri at the Relation and to the Use of William Stoecker, Relator, v. Jennings Sewer District of St. Louis County et al
• Court: Missouri Supreme Court

63 S.W.2d 133

333 Mo. 900

State of Missouri at the Relation and to the Use of William Stoecker, Relator, v. Jennings Sewer District of St. Louis County et al

No. 32778

Supreme Court of Missouri

September 4, 1933

Peremptory writ denied.

Ralph Nolan, Rush & Brown for relator.

(1) A holder of warrants issued by a sewer district in payment of preliminary expenses incurred by the district is clearly entitled to mandamus to compel the proper officers of the district to proceed with the assessment, levy, certification and collection of sufficient taxes to pay such warrants. Secs. 11037-11062, R. S. 1929; State ex rel. v. Webster Groves General Sewer District, 37 S.W.2d 905. (2) By express provision of the statute, the duty to levy and collect taxes sufficient to pay outstanding and unpaid warrants remained after repeal, and regardless of whether sewers were actually constructed. Sec. 11062, R. S. 1929; Acts 1931, p. 355; State ex rel. v. Wellston Sewer District, 332 Mo. 547; Houck v. Drainage District, 248 Mo. 373, 154 S.W. 739, 239 U.S. 254; Hunter v. City of Pittsburg, 207 U.S. 161. (3) Assessments for taxes to pay expenses lawfully incurred by sewer districts are not such "taxes" as fall within the purview of Section 3, Article X of our State Constitution. State ex rel. v. Oliver, 273 Mo. 537, 201 S.W. 868; Houck v. Drainage District, supra; Drainage District v. Turney, 235 Mo. 80, 138 S.W. 12. (4) Provisions of Article II, Section 20 of our State Constitution relating to "taking of private property" do not apply to Sewer Law provisions for assessments. St. Louis v. Nicolai, 13 S.W.2d 39; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935. (5) The provisions of the repeal act, 1931, are not in conflict with Section 30, Article II of the Constitution of the State of Missouri or of Section 1 of the Fourteenth Amendment to the Constitution of the United States. Sate ex rel. Becker v. Wellston Sewer District, supra.

S. D Flanagan for respondents.

(1) Relator's petition does not state any facts showing that the warrants held by him were issued for lawfully incurred costs, obligations or liabilities of respondent sewer district. The Act of the 1931 General Assembly of the State of Missouri, repealing the law under which respondent district was incorporated, found on page 355 of the Laws of Missouri, 1931, limits the authority of respondents to the performance of such acts as are necessary for the purpose of paying outstanding lawfully incurred costs, obligations and liabilities of respondent sewer district. Since the relator has not shown that the warrants described in his petition were issued for lawfully incurred obligations of respondent sewer district, a peremptory writ of mandamus should be denied as such writ will only issue where the relator shows a clear legal right thereto. State ex rel. Buder v Hackmann, 305 Mo. 342, 265 S.W. 532; State ex rel. Gehner v. Thompson, 316 Mo. 1169, 293 S.W. 391; State ex rel. Brunjes v. Linville, 8 S.W.2d 600. (2) Respondents' return alleges and relator, by his motion for judgment on the pleadings, admits that respondents have not yet determined the amount of the levy necessary to raise a sum equal to the amount of expenses incurred by and on behalf of respondent district. This is so because there are numerous suits pending in which taxpayers are attacking the validity of warrants issued by other sewer districts to relator for similar services and under similar circumstances to those here. Until the aggregate of the valid warrants outstanding is determined and adjudicated, respondents cannot know how much, if anything, is due relator. If all the outstanding warrants are valid, then relator is only entitled to his pro rata share of the total tax realized by the uniform levy of ten cents per square of 100 square feet, and such pro rata share cannot be fixed until the validity of the outstanding warrants has been determined. It is obvious that the rights of taxpayers who are not parties to this suit will be affected if the writ of mandamus is issued. This court has held that a writ of mandamus will not issue when it is apparent that the rights of persons not parties to the suit will be affected by the court's judgment. State ex rel. Davis v. State Highway Comm., 312 Mo. 230, 279 S.W. 689; State ex rel. Hopper v. Cottengin, 172 Mo. 129; State ex rel. Attorney-General v. Railroad Co., 77 Mo. 143; State ex rel. Hughett v. Finley, 74 Mo.App. 213; State ex rel. Hindrichs v. Adair County Court, 177 Mo.App. 12.

Charles Claflin Allen, Jr., and Williams, Nelson & English, amici curiae.

(1) Unless amended by omitting the requirement to pay the proceeds of the tax to relator or unless amended to require the payment of the tax to all warrant holders, the relief asked is broader than relator's right because: (a) The writ does not command a new levy for the benefit of relator alone, but commands the completion of an old levy for the benefit of all warrant holders. (b) It appears from the record that relator is entitled to be paid only a portion of the levy. (c) Other warrant holders are entitled to rights under the old levy. R. S. 1929, secs. 11037, 11062; Laws 1931, p. 355; State ex rel. Waters Pierce Oil Co. v. Baggott, 96 Mo. 71. (2) If the writ be amended to require payment on all warrants, including relator's, it should be made peremptory because: (a) The resolution ordering the levy against all lands in the district was passed before September 14, 1931, when the repealing act became effective (Laws 1931, p. 390). (b) The amount to be levied having been determined, it is the duty of the district to complete the same when demanded by the warrant holders. State ex rel. Boatmen's Natl. Bank v. Webster Groves General Sewer Dist., 37 S.W.2d 905.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

Relator seeks, in this proceeding, to compel the respondents, Board of Supervisors of Jennings Sewer District of St. Louis County, Missouri, and the secretary and treasurer thereof, to complete a certain tax levy and to apply the proceeds to the payment of warrants in a sum of $ 10,250, held by relator with interest thereon.

Respondent, sewer district, was organized under the provisions of Chapter 65, Revised Statutes 1929. The law was enacted by the Legislature in the year 1927, and repealed by the Legislature in the year 1931. While its life was of short duration it has had a stormy career. It has been the source of many legal combats.

Relator's petition states that after the organization of the district the board of supervisors employed attorneys and appointed a chief engineer for the district and caused surveys to be made, thereby incurring expenses and debts in organizing the district; that the warrants of relator were executed and delivered for a part of the expenses so incurred. Relator then alleges that the respondent board assessed and levied a uniform tax of ten cents per square of one hundred square feet upon all lands within the district for the purpose of providing funds to pay the expense of the preliminary work. It is charged that all necessary steps have been taken by the officers for the purpose of making a valid levy and assessment except that they have failed and now refuse to certify to the Recorder of Deeds and the Collector of Revenue of St. Louis County the proceedings of the board making the assessment for the purpose of collecting the tax. Relator asks that respondents be compelled to take these necessary steps to the end that funds may be collected for the payment of the warrants held by him and also that the officers be compelled to pay to relator the full amount and interest called for by the warrants.

Relator also alleges that respondent, board of supervisors, has issued warrants for preliminary expenses incurred in a sum in excess of $ 82,300; that the uniform tax of ten cents per square of one hundred square feet, if all were collected, would amount to only $ 82,300; that the Circuit Court of St. Louis County has not determined whether or not the estimated cost of the works and improvements of building the sewers of the district would exceed or be less than the benefits assessed against the land of the district; also, that the circuit court has not confirmed any report of commissioners appointed to determine and assess benefits and damages as provided in Section 11042 of the act.

The return of respondents admits many of the material allegations of the petition. In the return respondents, however, assert that in making the levy and assessment, as alleged in the petition, the board excluded from the assessment private streets, roads and parks which consisted of 2,531,933 square feet and, therefore, the levy made was not a uniform levy as required by law. Respondents also assert that the repealing statute of the Legislature has left them without power to act, also that the repealing act is unconstitutional because it authorizes the levy of a tax for a private purpose.

To this return relator filed a motion for judgment upon the pleadings. The truth of any facts set forth in the return are, therefore, admitted.

The questions of law raised by respondents' return, as to the constitutionality of the act, have all been...