State ex rel. McBride v. Sheetz
| Decision Date | 09 July 1919 |
| Citation | 214 S.W. 376,279 Mo. 429 |
| Parties | THE STATE ex rel. G. A. McBRIDE v. FRANK SHEETZ, Appellant |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. Fred Lamb, Judge.
Affirmed.
S. L Sheetz for appellant.
(1) Where the proceedings establishing a drainage district are void, they may be attacked collaterally. Drainage Dist v. Ackley, 270 Mo. 172; State ex rel. v. Arcadia Timber Co., 178 S.W. 93; Donner v. Board, 278 Ill. 189; Gibson v. Drainage Dist., 191 S.W. (Ark.) 908; Williams v. Osborne, 104 N.E. (Ind.), 27. (2) Every fact essential to the jurisdiction of the county court to establish a drainage district must be shown affirmatively on the record. State ex rel. v. Wilson, 216 Mo. 277; Wayne City Drainage Dist. v. Boggs, 262 Ill. 338; Railway Co. v. Young, 96 Mo. 42; State ex inf. v. Colbert, 273 Mo. 208. (3) Where the petition, as here, is to construct a ditch to drain lands, such petition is insufficient to confer jurisdiction to straighten a water course. Where the word "ditch" is defined by the statute to include both covered and open drains, the petition must set forth whether the ditch is to be open or closed to confer jurisdiction. Wayne City Drainage Dist. v. Boggs, 262 Ill. 338; People v. McDonald, 264 Ill. 514. (4) Where the statute requires an actual view of the lands along and adjacent to the proposed ditch, the record must show that fact. Marsh v. Supervisors, 42 Wis. 502. (5) Presumption of right acting is not indulged to support special statutory proceedings in invitum. Mechem on Public Officers (1 Ed.), sec. 581; Ellis v. Pac. Railroad Co., 51 Mo. 200; Zimmerman v. Snowden, 88 Mo. 218; Drainage Dist. v. Campbell, 154 Mo. 157. (6) The first notice to landowners did not set forth the report of the engineer and viewers as required by the statute, and the description of the proposed location of the ditch is so indefinite as to render the subsequent proceedings based thereon void. State ex rel. v. Wiethaupt, 254 Mo. 319. (7) The fact that all the land in one township was misdescribed in the second notice to landowners, being about 1200 acres out of a total of 7573.96 acres, renders all proceedings herein void, and the assessments sued on invalid. State ex inf. v. Colbert, 273 Mo. 198; Paschal v. Swepston, 179 S.W. 339; Keystone Drainage Dist. v. Drainage Dist. 180 S.W. 215; Norton v. Bacon, 158 S.W. 1088; McRaven v. Clancy, 171 S.W. 88. (8) Where resort is had to constructive service of notice, a substantial, even rigid observance of the law is required, otherwise the judgment will be void. No notice was given that the proposed improvement would be paid for by a bond issue. Bobb v. Woodward, 42 Mo. 489; Winningham v. Trueblood, 149 Mo. 586; Stewart v. Allison, 150 Mo. 346; Turner v. Gregory, 151 Mo. 100; Leslie v. St. Louis, 47 Mo. 474. (9) The statute requires an estimate of the cost of location and construction of the improvement; and an apportionment of the same to each tract. No estimate was ever made so far as any record thereof can be found, and the county court acquired no jurisdiction of the proceedings. Hamilton on Special Assessments, sec. 524; Morgan Creek Drainage Comm'rs. v. Hawley, 240 Ill. 465. (10) There must be a valid assessment, its entry upon the tax book and failure of the owner to pay, to make a good cause of action. State ex rel. v. Wilson, 216 Mo. 287. No assessments were entered in a ditch assessment book as required by Sec. 5602, R. S. 1909. (11) The drainage law, "is a code unto itself," and the special Statute of Limitations therein of six months should be upheld. Drainage Dist. v. Ackley, 270 Mo. 173. (12) There was no notice given landowners that they could appear before the viewers at any time or place, as provided by Sec. 5585, R. S. 1909. Hamilton on Special Assessments, sec. 354; State v. Road Comm'rs., 41 N.J.L. 83.
W. T. Rutherford, Forrest M. Gill and Paul D. Kitt for respondent.
(1) This suit is for the collection of delinquent assessment for drainage tax, and the legality of the proceedings leading up to the incorporation of the drainage district cannot be inquired into in this collateral proceeding. State ex rel. v. Eicher, 178 S.W. 171; State ex rel. v. Wilson, 216 Mo. 215. (a) The tax bill in this case was prima-facie evidence of the amount due and the liability of appellant's land for the taxes. Secs. 5599-5600, R. S. 1909; State ex rel. v. Birch, 186 Mo. 205. (b) A drainage district is a municipal corporation, a public corporation, and the legality of its incorporation cannot be inquired into collaterally in a suit to collect back taxes; quo warranto is the only proceeding to question the legality of public corporations. State v. Fuller, 96 Mo. 165; Church v. Tobbein, 82 Mo. 418; Burnheim v. Rogers, 167 Mo. 171; School Dist. v. Hodgins, 180 Mo. 70; Barnes v. Construction Co., 257 Mo. 192; State v. Colbert, 273 Mo. 209; State v. West, 272 Mo. 317; State v. Young, 255 Mo. 637; State v. Blair, 245 Mo. 680; Bonderer v. Hall, 205 S.W. 542; State v. Eicher, 178 S.W. 174; Drainage Dist. v. Ackley, 270 Mo. 157. (c) The proceedings in the organization of this district are legal and fully comply with the statute under which said district was organized. Secs. 5578-5592, R. S. 1909. (2) Appellant was duly notified by publication, as required by statute (Sec. 5587), of the filing of the report of the viewers assessing benefits against his land and of the time set for hearing thereon. The court acquired jurisdiction of the person of the appellant and of the subject-matter. Secs. 5587-5592, R. S. 1909; State ex rel. v. Blair, 245 Mo. 680; Barnes v. Construction Co., 257 Mo. 192; State ex rel. v. Wilson, 216 Mo. 274; State v. Eicher, 178 S.W. 171; State ex rel. v. Neville, 110 Mo. 348. (a) The county court, by its judgment, found that the appellant was duly served with notice of the assessment of benefits on his land. This judgment is conclusive on appellant, and is not subject to attack in this proceeding. State ex rel. v. Eicher, 178 S.W. 173; State ex rel. v. Wilson, 216 Mo. 215. (3) The report of the first set of viewers conforms in all respects to the provisions of Sec. 5580, R. S. 1909, and shows that the viewers complied with the provisions of that section. (4) The first notice to landowners, given under the provisions of Sec. 5581, R. S. 1909, complies with all the essential requirements of Section 5581; the place of beginning, route and terminus of the proposed ditch and the time fixed by the court at which the petition and report would be heard are set forth in the notice. (5) The lands of the appellant are located in Sections 18 and 7, Township 56, Range 24. The notice to landowners of the report of the viewers assessing benefits on appellant's lands names appellant and correctly describes appellant's lands, and appellant has no grounds for complaint that the notice misdescribes his land. Appellant was duly notified of the assessment of his lands in this district and was notified of the date of hearing thereon. Sec. 5587, R. S. 1909; State ex rel. v. Blair, 245 Mo. 680; Barnes v. Construction Co., 257 Mo. 192. (6) It makes no difference whether notice of the issuance of bonds was made, appellant was not injured by the issuance of bonds. The petition asked for the issuance of bonds. Sec. 5579, R. S. 1909. The issuance of the tax bill in this case was authorized, and all assessments on appellant's lands drew 6 per cent from the date of the confirmation by the court until paid, and it could make no difference whether the money collected from the assessments is paid in discharge of the debt evidenced by bonds, or by the contract of construction without the bonds or by warrants issued. The amount in either event would be the same and the issuance of bonds could not prejudice or injure the appellant in any way. Secs. 5598-5599-5600, R. S. 1909; State v. Eicher, 178 S.W. 173. (7) An estimate of the cost, location and construction of the improvement was made by the viewers as is shown by the report of the viewers. (8) The statute (Sec. 5579) does not require that the petition shall state whether the ditch is to be an open or closed ditch. State ex rel. v. Taylor, 224 Mo. 453. (9) The taxes in question were not barred by the Statute of Limitations. Sec. 5599, R. S. 1909; Drainage Dist. v. Bates Co., 269 Mo. 78; State v. Wilson, 216 Mo. 291.
BLAIR, P. J. Graves, J., concurs; Bond, J., concurs in Paragraph 2 and the result; Woodson, J., absent.
Defendant appeals from a judgment rendered by the Livingston Circuit Court in a suit for drainage taxes. The district was organized in 1909.
I. (1) It was unnecessary for the petition praying for the organization of the drainage district to state whether the ditch was to be open or closed. The statute then in force (Sec. 5579, R. S. 1909) required no such allegation. [State ex rel. v. Taylor, 224 Mo. 393, 416, 123 S.W 892 et seq., and cases cited.] The cases cited from other states were decided under materially different statutes. (2) The report of the first board of viewers (Sec. 5580, R. S. 1909), when fairly construed, shows it was the result of an "actual view" of the proposed improvement. It shows a "thorough examination" of the proposed drainage system from end to end and was accompanied by a plat showing "the line examined by" the viewers. Further, the statute does not require the report to show an actual view. We think it does so, nevertheless. The point is ruled against appellant. The case of Marsh et al. v. Supervisors, 42 Wis. 502, et seq., was decided under an assessment statute which specifically required the assessor to make affidavit that he had actually viewed all real estate assessed. No affidavit of any kind was made. The principle of that decision is not relevant to...
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