State ex rel. Jacoby v. Missouri Val. Drainage Dist. of Holt County
| Decision Date | 05 March 1945 |
| Docket Number | 39215 |
| Citation | 185 S.W.2d 800,353 Mo. 1005 |
| Parties | State of Missouri ex rel. Colberne R. Jacoby, Relator, v. Missouri Valley Drainage District of Holt County, Missouri, a Municipal Corporation, Charles E. Sentney, Harry Morris, George Davis, C. P. Raiser and Earl Porter, Supervisors, Constituting the Board of Supervisors of said District |
| Court | Missouri Supreme Court |
WRIT DENIED.
Writ denied.
J L. Milligan, Clifford B. Kimberly, Thomas E. Deacy and Milligan, Kimberly & Deacy for relator.
(1) Respondents' answer and return admits the allegations of fact contained in relator's petition and in the alternative writ of mandamus and states no new facts which constitute any defense. If, under the facts stated in relator's petition, she is entitled to the relief prayed for, her motion for judgment on the pleadings should be sustained and a peremptory writ of mandamus should be issued. State ex rel. Hueller v. Thompson, 289 S.W. 338, 316 Mo. 272. (2) Mandamus is a proper remedy in this cause. It is admitted that relator is the owner of a final judgment against the respondent drainage district, which has no money with which to pay the same. The individual respondents, as supervisors of the district, after demand have failed and refused to levy a tax upon the lands in the district in a sum sufficient to pay the judgment involved with interest and costs. Sec. 3, Art. VI, Mo. Constitution; Sec. 12326, R.S 1939; Houck v. Little River Drain. Dist., 248 Mo 373, 154 S.W. 739; Security State Bank v. Dent County, 137 S.W.2d 960, 345 Mo. 1050; State ex rel. v. Knight, 121 S.W.2d 762; State ex rel. v. Webster Groves General Sewer Dist. No. 1, 37 S.W.2d 905. (3) The district has not been dissolved and the Circuit Court of Holt County, Missouri, from the report of the commissioners appointed to assess benefits and damages, found the estimated cost of the proposed works and improvements to be less than the benefits and approved and confirmed the report of the commissioners. The warrants originally sued upon by Clark E. Jacoby, and which were the basis of the judgment now owned by the plaintiff, were issued to the said Jacoby in payment of his services as chief engineer for the district in preparing plans and specifications and a plan for reclamation and for the necessary surveys for the works, ditches and embankments intended to drain and reclaim the wet and overflow lands in said district. The district and its supervisors have the power and the duty to levy an additional tax to pay the judgment herein involved, and relator is entitled to a writ of mandamus requiring respondents to make such levy. Jacoby v. Mo. Valley Drain. Dist. of Holt County, 163 S.W.2d 930, 349 Mo. 818; State ex rel. Hotchkiss v. Lemay Ferry Sewer Dist., 92 S.W.2d 704, 338 Mo. 653; Macon County Levee Dist. v. Goodson, 22 S.W.2d 651; Bushnell v. Miss. & Fox River Drainage Dist., 111 S.W.2d 946, 233 Mo.App. 921; Secs. 12333, 12334, 12336, 12338, 12340, R.S. 1939; Houck v. Drainage District, 248 Mo. 373, 154 S.W. 739; Houck v. Little River Drain. Dist., 239 U.S. 254, 36 S.Ct. 58, 60 L.Ed. 266.
Culver, Phillip, Kaufmann & Smith for respondents.
(1) Where fifty cents per acre has been levied to pay organization expenses as provided by Sec. 12333, R.S. 1939, the Board of Supervisors have no power to levy any additional tax to pay such expenses. State ex rel. Quigg v. Liquidator, etc., 175 S.W.2d 828; Hotchkiss v. Lemay Ferry Sewer Dist., 338 Mo. 635, 92 S.W.2d 704; Bushnell v. Miss. & Fox River Drainage Dist., 111 S.W.2d 946. And the Legislature has expressly so declared. Laws 1943, p. 519. (2) Jacoby v. Missouri Valley Drainage District, 163 S.W.2d 930, 349 Mo. 818, is not res adjudicata of the power of the Board of Supervisors to levy an additional tax. That question was not presented or decided in the Jacoby case. State ex rel. Quigg v. Liquidator, etc., 175 S.W.2d 828; Bushnell v. Miss. & Fox River Drainage Dist., 111 S.W.2d 946. (3) Even if the authority of the Board of Supervisors to levy an additional tax had been decided in the Jacoby case, it would not bind the supervisors because they were dropped out of the case by the amendment of the petition which eliminated all claim of liability on the part of the supervisors, and left only a claim that the plaintiff had a valid debt against the district for which a money judgment against the district was demanded and awarded. Jacoby v. Mo. Valley Drain. Dist., 163 S.W.2d 930. (4) Every section in the drainage acts which authorizes the levy of a tax under any circumstances places the authority to levy the tax in the Board of Supervisors. Where the power to levy the tax is in the board, the board must be made parties to a suit to compel the levy of a tax. 38 C.J., p. 248, cases collated, notes 81, 81-a. (5) And the writ compelling the levy of a tax must run against them. 38 C.J., p. 933, cases collated, Note 17; Eyerly v. Jasper County, 33 N.W. 609; Sims v. Fitzgerald, 77 N.E. 714; Boise City Natl. Bank v. Independent School District, etc., 189 P. 47; State ex rel. v. City of Willow Springs, 208 Mo.App. 1; Bailey v. Lawrence County, 51 N.W. 331; Dusenbury v. Looker, 67 N.W. 986. (6) If it may be said that the question of the liability of the Board of Supervisors to levy the tax was decided in the Jacoby case, and in res adjudicata of that question, then that case decided that there was no liability on the part of the supervisors because the judgment in that case was in favor of the board. (7) The cause of action in the Jacoby case and in the instant case is not the same. In the Jacoby case the cause of action, i.e., the right asserted and the thing demanded, was a money judgment against the district alone; the right asserted in the instant case is the levy of a tax to pay that judgment. The Jacoby case is therefore not res adjudicata of the question involved here. State v. City of Mound City, 335 Mo. 702, 73 S.W.2d 1017; State ex rel. Quigg v. Liquidator, etc., 175 S.W.2d 828; Coleman v. Kansas City, 173 S.W.2d 572; Bushnell v. Miss. & Fox River Drainage Dist., 111 S.W.2d 946. (8) There is no authority to tax unless there is a statute permitting it and it must be clear, express and free from doubt or ambiguity. Leavell v. Blades, 237 Mo. 695; State ex rel. American Central Ins. Co. v. Gelmer, 315 Mo. 1126. (9) There is no section of the statute authorizing the levy of a tax for organization expenses excepting Sec. 12333, R.S. 1939.
Douglas, C.J. Hyde, J., concurs in separate opinion; Clark, Tipton and Gantt, JJ., concur and also concur in separate opinion of Hyde, J.; Ellison, J., dissents in separate opinion; Leedy, J., dissents and concurs in separate dissenting opinion of Ellison, J.
This is an original proceeding in mandamus. Relator is the assignee of a judgment for $ 21,076.49 rendered in favor of her late husband Clark E. Jacoby against the Missouri Valley Drainage District of Holt County, a municipal corporation. She brings this action against the district and against the members of its board of supervisors to compel the latter to levy a tax for the purpose of paying the judgment. This court directed the entry of relator's judgment in the case of Jacoby v. Missouri Valley Drainage District, 349 Mo. 818, 163 S.W.2d 930, which we will refer to as the first Jacoby case.
The question for decision is whether, under the conditions existing at the present time, the district has authority to levy a tax. If the district has such authority relator's judgment, under our decision in the first Jacoby case, may be properly paid from the proceeds. The district was created under the act authorizing the organization of drainage districts by the circuit court. ( A tax of fifty cents per acre was levied and collected under Section 12333 for preliminary expenses. Clark E. Jacoby was employed as chief engineer. He prepared a plan for reclamation with necessary surveys. The benefits and damages were assessed, the benefits found to be greater, and the plan was confirmed and approved by the circuit court. Before work on the plan was commenced the United States Government condemned about three-tenths of the area of the district for a game refuge making it impossible to carry out the plan of reclamation for the district. Since that event nothing further has been done. No move has been made to dissolve the district.
The entire proceeds of the tax for preliminary expenses authorized by Section 12333 has been spent.
The next levy authorized in organizing a drainage district (Sec. 12340) comes after the benefits and damages are ascertained and the plan confirmed and approved by the court. When that is done the board of supervisors are then directed to levy a tax of such portion of the benefits necessary to pay the cost of completion of the plan of reclamation. The board of this district could not and can not now make this levy because the intervention of the United States Government has made it impossible to complete the plan as approved.
There is another levy authorized if the district is dissolved on the petition of the property-owners (Sec. 12361). When that is done the debts of the district must be paid before dissolution may be decreed and if the district has not sufficient funds on hand to pay such debts the board of supervisors is directed to levy a uniform acreage tax to pay the same. In the first Jacoby case we held the payment of outstanding warrants and other obligations was a condition precedent to dissolution under this section and indicated that the warrants issued to Jacoby were properly payable out of such a dissolution levy. In the meantime the judgment on these warrants stands as a cloud on the title of the land in the district.
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