State ex rel. Hotchkiss v. Lemay Ferry Sewer Dist. of St. Louis County

• Decision Date: 18 March 1936
• Docket Number: 34477
• Citation: 92 S.W.2d 704,338 Mo. 653
• Parties: State of Missouri at the Relation of Edward Hotchkiss, Meredith C. Jones, R. D. Kercheval, Charles A. Stix and James F. Quigg, Relators, v. Lemay Ferry Sewer District of St. Louis County, Liquidator of said Sewer District, Collector of the Revenue in and for St. Louis County, Recorder of Deeds in and for St. Louis County, and William H. Tegethoff as Liquidator of Said District; W. J. Donworth, Recorder of Deeds in and for St. Louis County, and Willis Benson, as Collector of the Revenue as Aforesaid
• Court: Missouri Supreme Court

92 S.W.2d 704

338 Mo. 653

State of Missouri at the Relation of Edward Hotchkiss, Meredith C. Jones, R. D. Kercheval, Charles A. Stix and James F. Quigg, Relators, v. Lemay Ferry Sewer District of St. Louis County, Liquidator of said Sewer District, Collector of the Revenue in and for St. Louis County, Recorder of Deeds in and for St. Louis County, and William H. Tegethoff as Liquidator of Said District; W. J. Donworth, Recorder of Deeds in and for St. Louis County, and Willis Benson, as Collector of the Revenue as Aforesaid

No. 34477

Supreme Court of Missouri

March 18, 1936

Rehearing Overruled March 18, 1936.

Alternative writ quashed.

Charles Claflin Allen, Jr., and Williams, Nelson & English for relators.

(1) Mandamus is the proper remedy to enforce a sewer district to levy the taxes required to meet payments due to warrant holders. State ex rel. Nolan v. Nelson, 310 Mo. 526; State ex rel. Boatmen's Natl. Bank v. Webster Groves Sewer Dist., 37 S.W.2d 905. (2) It is the duty of sewer districts organized pursuant to Chapter 65, Revised Statutes 1929, to levy taxes for the payment of organization expenses and other expenses lawfully incurred, which duty remains even after the repeal of the act as to all districts which were incorporated under the act. State ex rel. Boatmen's Natl. Bank v. Webster Groves Sewer Dist., 37 S.W.2d 905; State ex rel. Stoecker v. Jennings Sewer Dist., 63 S.W.2d 134. (3) The sewer districts organized pursuant to Chapter 65, Revised Statutes 1929, were not dissolved by the repealing act of 1931, but still have an existence with all the duties and powers prescribed by that chapter, which existence, duties and powers remain until all of the costs and obligations of such sewer districts shall be paid. Laws 1931, p. 355; State ex rel. Becker v. Wellston Sewer Dist., 58 S.W.2d 995; State ex rel. Stoecker v Jennings Sewer Dist., 63 S.W.2d 134. (4) The amount of organization expenses of sewer districts incorporated pursuant to Chapter 65, Revised Statutes 1929, is not limited to the amount of tax to be raised by Section 11037, Revised Statutes 1929, but the levy of taxes in addition to those authorized by Section 11037, Revised Statutes 1929, is mandatory upon the district where the district is required to be dissolved after the incurring of expenses. R. S. 1929 sec. 11062; Laws 1921, p. 355; State ex rel. Becker v Wellston Sewer Dist., 58 S.W.2d 995; State ex rel. Stoecker v. Jennings Sewer Dist., 63 S.W.2d 134. (5) A successor officer succeeds to all the rights and must perform all the duties imposed upon the officers whom he succeeds and such rights and duties are transferred without express legislation to that effect. Respondent liquidator, therefore, under the act passed by the Special Legislative Session of 1933 (Laws Ex. Sess., 1933-34, p. 117) succeeds to all the rights and duties of the board of supervisors of this district, and the levy of these taxes being mandatory upon the board of supervisors is likewise mandatory upon the liquidator. State ex rel. Gentry v. Curtis, 4 S.W.2d 467; Sanders v. Kansas City, 175 Mo.App. 367; Thompson v. Abbott, 61 Mo. 177.

George Barnett for Lemay Ferry Sewer District of St. Louis County, and William H. Tegethoff, as Liquidator of Said District.

(1) The power to levy a tax for preliminary expenses was exhausted by the levy of a tax of ten cents per square of 100 square feet on all the lands within the district. Section 11037, Revised Statutes 1929, authorizes the district to levy a tax for preliminary purposes not to exceed ten cents per square of 100 square feet. Section 11062, Revised Statutes 1929, provides that an additional tax may be levied to pay any deficiency. Plainly, it was intended that the total of all such levies should not exceed ten cents per square of 100 square feet. State ex rel. Drainage Dist. v. Thompson, 41 S.W.2d 941; State ex rel. Sturdivant Bank v. Little River Drainage Dist., 68 S.W.2d 671; Cunningham Realty Co. v. Drainage Dist., 40 S.W.2d 1086. (2) Unless the construction be adopted that the total amount of levies must not exceed ten cents per square of 100 square feet, the two sections of the statutes involved would conflict. Section 11037, Revised Statutes 1929, established a minimum levy for preliminary purposes, and Section 11062 removes such limitation. Such an interpretation should be given to a statute as will harmonize its provisions and not cause one section to contradict another. State ex rel. Johnson v. Ry. Co., 300 S.W. 274, 318 Mo. 285; State ex inf. Blaebaum v. Broeker, 11 S.W.2d 81; State ex rel. Dean v. Daues, 14 S.W.2d 990; Logan v. Matthews, 52 S.W.2d 989. (3) That which is implied in a statute is as much a part thereof as that which is expressed in words. Section 11062, in giving the power to levy an additional preliminary tax, is clearly subject to the implication that such power should be exercised in a way that the purpose and effect of Section 11037 would not be nullified. State ex rel. O'Connor v. Riedel, 46 S.W.2d 131, 329 Mo. 616; Bowers v. Mo. Mut. Assn., 62 S.W.2d 1058. (4) In seeking the legislative intent the courts will avoid a construction of a statute which would make the act unconstitutional, unreasonable or absurd. If the statute is subject to two constructions, that construction will be adopted which will lead to reasonable and just results. Darlington Lbr. Co. v. Ry. Co., 216 Mo. 658, 116 S.W. 530; St. Louis v. Christian Bros. College, 257 Mo. 541; Strottman v. Ry. Co., 128 S.W. 187; Hawkins v. Smith, 147 S.W. 1042; State ex rel. Spriggs v. Robinson, 161 S.W. 1169; State v. Schwartzman, 40 S.W.2d 479, 225 Mo.App. 577; Scott v. Royston, 123 S.W. 451, 223 Mo. 568; Rutter v. Carothers, 122 S.W. 1056, 223 Mo. 631.

Walter Wehrle for Willis Benson, Collector of Revenue for St. Louis County.

(1) The writ herein should not be made permanent for the reason that it appears upon the face of the petition that the sewer district has already exhausted its power to levy a preliminary tax by the levy of ten cents per square of 100 square feet on all the lands within the district. Section 11037, Revised Statutes 1929, fixes a maximum of ten cents per square of 100 square feet. It is obvious that Section 11062, Revised Statutes 1929, authorizes an additional tax, provided the aggregate amount of all such taxes did not exceed the ten cents limit. This is the only construction which would render both sections operative, and such a construction should be given to a statute that no part or section will be inoperative, superfluous, contradictory or conflicting, and so that one section or part will not destroy another. Castillo v. State Highway Comm., 279 S.W. 673. (2) Statutes should receive a sensible construction, such as will effect the legislative intent, and, if possible, so as to avoid an unjust or absurd conclusion. Taylor v. Daues, 281 S.W. 398, 313 Mo. 200; State ex rel. Emmons v. Farmer, 196 S.W. 1106, 271 Mo. 306; State ex rel. Pollock v. Becker, 233 S.W. 641, 289 Mo. 660.

David H. Robertson, amicus curiae.

Christy M. Farrar, amicus curiae.

(1) In construing a statute the purpose of law should be ascertained. Evils sought to be remedied and benefits intended to be conferred thereby should be considered. Wellston Bus Co. v. Pub. Serv. Comm., 332 Mo. 283; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662; Bowers v. Mo. Mut. Assn., 62 S.W.2d 1058. (2) 43 Corpus Juris, page 195, Municipal Corporations, section 192: "The powers of municipal corporations are not to be enlarged, as a general rule by liberal construction. Generally it is held that the powers of municipal corporations are to be strictly construed; any ambiguity or reasonable doubt is to be resolved against the grant." Hays v. Poplar Bluff, 263 Mo. 531; St. Louis v. St. Louis World P. Co., 227 Mo. 149; 43 Corpus Juris, section 196: "A municipal charter must be construed in its entirety. The sections all passed at the same time being in pari materia, should be construed as one statute." (3) Laws relating to the same subject and enacted at the same session must be construed together. State ex rel. Moseley v. Lee, 319 Mo. 976. To prevent one statute or a portion thereof from conflicting with the obvious purpose of another statute, the literal construction of the inconsistent enactment may be departed from, and a construction that produces the greatest harmony adopted. Home Ins. Co. v. Wickham, 281 Mo. 300. The law is well stated by the court in Logan v. Matthews, 52 S.W.2d 992. (4) A statute should not be construed so as to make it unreasonable where it can be given a reasonable construction. State ex rel. St. Louis Pub. Serv. Co. v. Pub. Serv. Comm., 326 Mo. 1169; Holt v. Rea, 330 Mo. 1237; State ex rel. Pemiscot v. McKay, 52 S.W.2d 229.

Chauncey H. Clarke, amicus curiae.

Section 11037, Revised Statutes 1929, does not limit the amount of costs (as the term costs is defined by Sec. 11062, R. S 1929) that may be lawfully incurred by sewer districts incorporated under the provisions of Chapter 65, Revised Statutes 1929; but on the contrary provides solely for the levy of a tax, for the purpose of paying expenses of the district, prior to the time when subsequent provisions of Chapter 65, Revised Statutes 1929, become operative. This tax levied at the beginning or early stages is levied at a time when the amount of necessary expenses is not known and can be the result only of guess or conjecture. Other provisions of the chapter under which the total costs, including works and improvements, may be paid, authorize the district to provide funds with which to pay all such costs. If the district be dissolved, Section 11062, Revised Statutes 1929, comes into effect for the payment of such costs and expenses. Houck v. Little River Drainage Dist., 248 Mo. 373; ...