State ex rel. Quigg v. Liquidator of the Sewer Districts

• Decision Date: 06 December 1943
• Docket Number: No. 38502.,38502.
• Citation: 175 S.W.2d 828
• Parties: STATE OF MISSOURI, at the Relation of JAMES F. QUIGG, CHARLES A. STIX, ROYAL D. KERCHEVAL, MEREDITH C. JONES and EDWARD HOTCHKISS, Relators, v. LIQUIDATOR OF THE SEWER DISTRICTS OF ST. LOUIS COUNTY, MISSOURI; THE OVERLAND SEWER DISTRICT OF SAID COUNTY; COLLECTOR OF THE REVENUE IN AND FOR ST. LOUIS COUNTY, MISSOURI; RECORDER OF DEEDS IN AND FOR ST. LOUIS COUNTY, MISSOURI; WALTER R. MAYNE, as Such Liquidator; WILLIS W. BENSON, as Such Collector; and GERALD J. DONWORTH, as Such Recorder.
• Court: Missouri Supreme Court

175 S.W.2d 828 STATE OF MISSOURI, at the Relation of JAMES F. QUIGG, CHARLES A. STIX, ROYAL D. KERCHEVAL, MEREDITH C. JONES and EDWARD HOTCHKISS, Relators,
v.
LIQUIDATOR OF THE SEWER DISTRICTS OF ST. LOUIS COUNTY, MISSOURI; THE OVERLAND SEWER DISTRICT OF SAID COUNTY; COLLECTOR OF THE REVENUE IN AND FOR ST. LOUIS COUNTY, MISSOURI; RECORDER OF DEEDS IN AND FOR ST. LOUIS COUNTY, MISSOURI; WALTER R. MAYNE, as Such Liquidator; WILLIS W. BENSON, as Such Collector; and GERALD J. DONWORTH, as Such Recorder. No. 38502. Supreme Court of Missouri. Court en Banc, December 6, 1943.

Mandamus.

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 the 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 District, 37 S.W. (2d) 905. (2) It is the duty of sewer districts organized pursuant to Chapter 65, R.S. 1929, to levy taxes for the payment of organization expenses and other expenses lawfully incurred, which duty remains after the repeal of the act as to all districts which were incorporated under the act. Jacoby v. Missouri Valley Drain. District, 349 Mo. 818, 163 S.W. (2d) 930; State ex rel. Boatmen's Natl. Bank v. Webster Groves Sewer District, 37 S.W. (2d) 905; State ex rel. Stoecker v. Jennings Sewer District, 63 S.W. (2d) 133. (3) The sewer districts organized pursuant to Chapter 65, R.S. 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 remain until all of the costs and obligations of such sewer districts are paid. Laws 1931, p. 355; Jacoby v. Missouri Valley Drain. District, 349 Mo. 818, 163 S.W. (2d) 930; State ex rel. Becker v. Wellston Sewer District, 58 S.W. (2d) 988; State ex rel. Stoecker v. Jennings Sewer District, 63 S.W. (2d) 133. (4) The amount of organization expenses of sewer districts incorporated pursuant to Chapter 65, R.S. 1929, is not limited to the amount of tax to be raised by Section 11037, R.S. 1929, but the levy of additional taxes is mandatory upon the district; likewise, where the district is required to be dissolved after the incurring of the expenses. R.S. 1929, sec. 11062; Laws 1931, p. 355; Jacoby v. Missouri Valley Drain. District, 349 Mo. 818, 163 S.W. (2d) 930; State ex rel. Becker v. Wellston Sewer District, 58 S.W. (2d) 988; State ex rel. Stoecker v. Jennings Sewer District, 63 S.W. (2d) 133. (5) Under the act passed by the Special Legislative Session of 1933-1934 (Special Session 1933-1934, page 117), the respondent Liquidator succeeded to all the rights and duties of the Board of Supervisors of the sewer district, and the levying of these taxes, being mandatory upon the Board, is likewise mandatory upon the Liquidator. State ex rel. Gentry v. Curtis, 4 S.W. (2d) 467; Thompson v. Abbott, 61 Mo. 176. (6) As the Jacoby case expressly overruled State ex rel. Hotchkiss et al. v. Lemay Ferry Sewer District, the latter case never was the law, and the case at bar should be decided as though such overruled case had never been written. Koebel v. Tieman Coal & Material Co., 85 S.W. (2d) 519, 337 Mo. 561; Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001. (7) As the principle of law upon which the Jacoby case overrules the Hotchkiss case is substantive, and not merely procedural, the effect of the Jacoby decision is retroactive, and not merely prospective, and relators' motion to strike should be sustained. Koebel v. Tieman Coal & Material Co., 85 S.W. (2d) 519, 337 Mo. 561; Harke v. Haase, 335 Mo. 1104, 75 S.W. (2d) 1001.

T. Douglas Moore for Liquidator of Sewer Districts, Overland Sewer District and Walter R. Mayne, Liquidator, respondents; Fordyce, White, Mayne, Williams & Hartman of counsel.

(1) The alternative writ of mandamus should be quashed, the relators' petition dismissed and the respondents discharged, because the respondents cannot be required in this mandamus action to make an illegal second levy. State ex rel. Kent v. Olenhouse, 23 S.W. (2d) 83, l.c. 86; Bushnell v. Miss. & Fox River Drain. District, 111 S.W. (2d) 946. (2) It is not the duty of sewer districts authorized pursuant to Chapter 65, R.S. Mo. 1929, to make a levy in excess of 10c per square of 100 square feet, nor is it the sewer district's duty to cause such an illegal levy to be made after the repeal of the Sewer Law of 1927. R.S. 1929, sec. 11037; Laws 1931, p. 355. (3) The respondents are not estopped to deny that they have no authority to levy the additional tax sought by the relators. Bushnell v. Mississippi & Fox River Drain. Dist., 111 S.W. (2d) 946. (4) The Sewer District Law of 1927 was repealed by the Legislature of Missouri, and the effect of such repeal was the same as if the circuit court had found that the estimated cost of work and improvements exceeded the estimated benefits. R.S. 1929, sec. 11062; Laws 1931, p. 355. (5) The amount of tax to be raised by the Sewer Districts for preliminary expenses cannot exceed 10c per square of 100 square feet, nor can the Sewer Districts or the Liquidator be compelled to levy a greater tax. R.S. 1929, secs. 11037, 11062; State ex rel. Hotchkiss v. Lemay Ferry Sewer District, 92 S.W. (2d) 704; Bushnell v. Miss. & Fox River Drainage Dist., 111 S.W. (2d) 946. (6) The facts in the case of Hotchkiss v. Lemay Ferry Sewer District and the case of Jacoby v. Mo. Valley Drainage District are dissimilar, and the same rule of law should not apply to both cases. (7) Even though the Jacoby case overruled the Hotchkiss case, the decision in the former case is prospective only, and the rule in the latter case is still the law and is an effective bar to relators' cause of action. Douglass v. County of Pike, 101 U.S. 677, 687, 25 L. Ed. 968; Klocke v. Klocke, 208 S.W. 825; 1 C.J. 1197; 36 C.J. 963, sec. 27; Barker v. St. Louis Co., 104 S.W. (2d) 371. (8) The courts of final decision may define and declare the effect of its decision overruling a...