OPINION
BAILEY, J.
This is
a suit for the collection of a preliminary uniform tax levied
by the County Court of Dunklin County against lands of
defendant, described in plaintiff's petition (and other
lands) lying in Drainage District No. 41, Dunklin county. The
case was decided below against defendant on a demurrer to
plaintiff's petition and is here on appeal from the
judgment overruling defendant's said
demurrer. It therefore becomes necessary to set out the
petition which, caption omitted, reads, in part, as follows:
"The
State of Missouri, who sues in this behalf, at the relation
and to the use of A. L. Davidson, Collector of the revenue
within and for said County of Dunklin and State of Missouri,
for the use and benefit of Drainage District No. 41 of
Dunklin County, Missouri, and A. L. Davidson, Treasurer and
Ex-Officio Collector of Dunklin County, Missouri, for the use
and benefit of Dunklin County, Missouri, states:
"That
A. L. Davidson aforesaid is the duly elected commissioned and
qualified treasurer and Ex-Officio collector of the revenue
within and for the County and State aforesaid. . . .
"That
Drainage District No. 41 of Dunklin County, Missouri, was
duly organized by an order of the County Court of Dunklin
County, Missouri, under and by virtue of Article 4, Chapter
28, Revised Statutes Missouri, for the year 1919, and
amendments thereto, on the 19th day of August, 1927, at the
July Term of the County Court of said County; said decree of
incorporation being recorded in the Ditch Record of said
County in Book 10 at page 213;
"That
thereafter by an order duly made and entered of record in the
County Court of said County on the 29th day of August, 1927,
the County Court of said County made an order for the viewers
and engineers to permanently locate the improvements in said
districts; which said order is recorded in Ditch Record of
Dunklin County, Missouri, in Book 10 at page 280;
"That
thereafter and theretofore, the County Court of said County
had allowed and expended fees properly allowed by law to the
viewers and engineers of said district, attorney and other
preliminary expenses in the organization of said district and
preparation of the final report of the viewers and engineers
therein the total sum of Thirteen Thousand Eight Hundred
Twenty and 29/100 Dollars ($ 13,820.29); which said sum was
paid out of the County Treasury upon allowance
by the County Court under and by virtue of Section 10,861,
Revised Statutes Missouri, 1929, and was charged to the
account of Drainage District No. 41; and that no tax of any
kind or character had theretofore been levied in Drainage
District No. 41 for the purpose of paying said preliminary
expenses.
"Plaintiffs
further state that there has been collected under and by
virtue of said tax as aforesaid, the sum of Five Thousand
Nine Hundred Sixty and 46/100 Dollars ($ 5,960.46) leaving a
net balance due by said drainage district to the general
county funds of said county in the sum of Seven Thousand
Eight Hundred Fifty-nine and 83/100 Dollars ($ 7,859.83).
"On
the 25th day of November, 1929, the viewers and engineers of
Drainage District No. 41 filed their final report in said
district; said report being recorded in
Ditch Record of Dunklin County, Missouri in Book 11 at page
32;
"Thereafter,
the Clerk was ordered by the County Court to give notice of
the filing of said viewers and engineers report in said
district, to-wit: on December 10, 1929, and the date for the
hearing was set by order of the County Court duly made and
entered of record at the time; thereafter, to-wit: on the
13th day of January, 1930, on the date set for the hearing
upon the final report of the viewers and engineers, proof of
publication of the notice of filing of viewers report in
Drainage District No. 41 was duly filed with the Clerk of the
County Court of said County, and on said date said cause was
continued to March 17, 1930;
"Thereafter,
to-wit: on March 17, 1930, the County Court of said County
made an order disapproving and rejecting the final report of
the viewers and engineers in said district, ordering and
adjudging that said project and proceeding be dismissed for
the reason that the cost for the same was in excess of the
benefits to be derived therefrom thereafter, to-wit: on
August 15, 1930, the County Court of said County by an order
duly made and entered of record, at the time under and by
virtue of Section 10815, Revised Statutes Missouri, 1929,
ordered a uniform tax of thirty-five cents (35c) per acre
upon each acre of land and other property within said
district, for the purpose of paying expenses which were
incurred in organizing said district, making surveys for the
same and assessing benefits and damages and paying other
expenses necessary in said district.
"Plaintiffs
further state that thereafter the County Clerk of said County
did extend a tax in accordance with said order against all
the lands in said district in the same way and manner as
provided by law for the collection of annual installments of
drainage taxes under and by virtue of the chapter and article
of the Revised Statutes of Missouri aforesaid.
"Plaintiffs
state that the hereinafter described tract of land is owned
by the defendant Missouri State Life Insurance Company, a
corporation, and was so owned during all the times herein
mentioned and is a part of the lands embraced in said
Drainage District No. 41, Dunklin County, Missouri. . . .
etc."
Then
follows a prayer to enforce the lien of the taxes.
The
demurrer is on three grounds, to-wit:
"1.
That there is a misjoinder of parties plaintiff.
"2.
That plaintiff, State ex rel. A. L. Davidson to the use of
Drainage District No. 41 of Dunklin County, Missouri, has not
the capacity to sue, and cannot, therefore, prosecute this
cause.
"3.
That the facts stated in plaintiffs' petition are not
sufficient to constitute any cause of action against
defendant and are not sufficient to support a lien on
defendant's lands described in plaintiffs' petition
as sought by plaintiffs."
Respondents frankly concede that points 1 and 2
of the demurrer are well taken for the reason that this being
a suit to collect an alleged drainage district assessment, it
is the sole province of the district to collect same and sue,
"in the name of and to the use of the collector of the
revenue. [Sec. 10828, R. S. 1929.] It would follow that the
judgment should be reversed and the cause remanded on those
two grounds. The vital question in the case, however,
involves the third point raised by the demurrer, i. e., that
the petition fails to state a cause of action. All parties
concerned desire that that question be decided on this appeal
not as a moot question but as the real point at issue. We
shall therefore devote our attention to that question.
The
material allegations of the petition are to be taken as true
for the purposes of the demurrer. From the petition it
appears that Drainage District No. 41 of Dunklin County was
duly organized on the 19th day of August, 1927, by an order
of the Dunklin County Court, as provided by Article 4,
Revised Statutes 1919 (now Art. 2, Chap. 64, R. S. 1929). The
county court is given authority to incorporate a drainage
district under the provisions of Section 10809, Revised
Statutes 1929, upon proper petition, after determining the
same to be conducive to the public welfare. With the petition
there must be filed a bond payable to the State of Missouri
signed by two or more good and sufficient freehold sureties
and conditioned upon the payment of all costs and expenses if
the prayer of the petition be not granted or the
petition be dismissed. [Sec. 10810.] There is also a
provision for the appointment of
an attorney to assist in the establishment of the proposed
district. [Sec. 10811.] Upon the filing of the petition and
approval of the bond, the county court is required to appoint
a competent civil and drainage engineer and three viewers.
These viewers and engineer are required to view the location
of the proposed ditch and premises adjacent thereto, and if
they find the proposed improvement necessary and practicable,
they shall so report and in their report shall indicate
approximately the proper character, location and probable
cost of the improvement, the lands benefited, the boundary
lines of the proposed district, all in writing with maps and
drawings necessary to advise the court in the premises. [Sec.
10812.] After the filing of this report the county clerk is
required to give three weeks' notice of the hearing on
the proposed improvement by publication. [Sec. 10813.]
Remonstrances may be filed, heard and determined by the
county court. If, after hearing all objections, the county
court finds the landowners owning a majority in acreage of
the proposed district are petitioners, the county court
shall, or if less than a majority, may, in its discretion,
find in favor of the improvement, in which event the
petitioners and bondsmen are released from further liability
on their bond. The county court shall thereupon incorporate
the district by an order of record (which was done in this
case). Such district thus becomes a body corporate and is
capable as such of suing and being sued.
[Sec. 10814.] ...
