State ex rel. Ross, to Use of Drainage District No. 8 of Pemiscot County v. General American Life Ins. Co.

• Decision Date: 16 April 1935
• Citation: 85 S.W.2d 68,336 Mo. 829
• Parties: State of Missouri at the Relation of Charles G. Ross, Collector of Revenue in and for Pemiscot County and to the Use of the Drainage District No. 8 of said county, Appellant, v. General American Life Insurance Company, a Corporation
• Court: Missouri Supreme Court

85 S.W.2d 68

336 Mo. 829

State of Missouri at the Relation of Charles G. Ross, Collector of Revenue in and for Pemiscot County and to the Use of the Drainage District No. 8 of said county, Appellant, v. General American Life Insurance Company, a Corporation

Supreme Court of Missouri

April 16, 1935

Rehearing Denied April 16, 1935.

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Trial Judge.

Reversed and remanded (with directions).

Sharon J. Pate, Chas. Claflin Allen, Jr., and R. L Ward for appellant.

(1) The Drainage Act provides that the cost of enlarging, cleaning out and removing obstructions from the ditches and doing new work shall be assessed upon all the lands in the district pro rata in proportion to, but not limited by, the benefits assessed for original construction. R. S. 1909, secs. 5613, 5614, as amended, Laws 1913, p. 279. (2) The statute authorizes the county court to provide better outlets and to provide for their payment in conjunction with other drainage districts. R. S. 1909, secs. 5578, 5613, 5628. (3) Neither the Federal nor State Constitutions prevent the Legislature from providing for assessments for doing additional work in excess of the original benefits for constructing the original ditches. Breiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 159; Roberts v. Irrigation District, 289 U.S. 71, 77 L.Ed. 1038; State ex rel. v. Bates, 235 Mo. 262. (4) Sections 5613 and 5614, Revised Statutes 1909, are a legislative determination of benefits, and assessments made under those sections for recleaning the ditches are legislative assessments; due process of law does not require notice to or opportunity to be heard by the landowners as to whether or to what extent the property will be benefited before such assessments become final. Breiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 159; Roberts v. Irrigation District, 289 U.S. 71, 77 L.Ed. 1038; State ex rel. v. Bates, 235 Mo. 262; Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658; Mudd v. Wehmeyer, 19 S.W.2d 891; Houck v. Little River Drainage Dist., 248 Mo. 373, 239 U.S. 254, 60 L.Ed. 266; Rutherford v. Hamilton, 97 Mo. 543; Heaman v. Allen, 156 Mo. 262; Prior v. Construction Co., 170 Mo. 439; Spencer v. Merchant, 125 U.S. 345, 31 L.Ed. 763; French v. Barber Asphalt Co., 181 U.S. 324, 45 L.Ed. 879; Louisville & N. Railroad Co. v. Barber Asphalt Co., 197 U.S. 430, 49 L.Ed. 819. (5) In the case of legislative assessments such as involved in the case at bar, the property owners, when sued for such assessments, cannot be heard in such suit as to questions of whether or to what extent the property will be benefited, but are precluded by the legislative determination thereof. Mudd v. Wehmeyer, 19 S.W.2d 891; Same authorities as point 3. (6) The statute authorizes the issuance of additional bonds without further notice where necessary to complete the original construction and when necessary to complete the work of cleaning out, enlarging and constructing the new ditches called for by the petition and order of the county court providing for the recleaning. This act is valid. Laws 1913, p. 274; Sec. 5588, R. S. 1909; Secs. 5613, 5614 as amended, Laws 1913, p. 279; State ex rel. v. Wilson, 216 Mo. 280; Houck v. Little River Drainage Dist., 248 Mo. 373; Cunningham Realty Co. v. Pemiscot Drainage Dist. No. 3, 226 Mo.App. 1, 40 S.W.2d 1086. (7) Defendants and those under whom they claim, by petitioning that the recleaning work be done and that bonds be issued to pay for the cost of this work, by standing by and suffering the four issues of bonds to be issued and registered by the State Auditor and sold to innocent purchasers, and by permitting the money to be spent for the construction of the improvements, and by the acceptance of the benefits thereof, have ratified the assessments levied to pay said bonds and are estopped to say that they are unconstitutional or otherwise invalid. R. S. 1929, secs. 2915, 2920; State ex rel. v. Bates, 235 Mo. 262; Shepard v. Baron, 194 U.S. 553, 48 L.Ed. 1115; Seattle v. Kelleher, 195 U.S. 351, 49 L.Ed. 232.

John A. McAnally, John H. Bradley and Williams, Nelson & English for respondent.

(1) Under the pleadings and the evidence, judgment for the respondent was proper. Secs. 5613, 5614, R. S. 1909, as amended, Laws 1913, p. 279; Sec. 4491, R. S. 1919, as amended, Laws 1919, p. 304, sec. 16; Sec. 4491, R. S. 1919, now Sec. 10823, R. S. 1929; State ex rel. Drain. Dist. No. 8 Pemiscot County v. Duncan, 68 S.W.2d 679; Secs. 10759, 10760, 10788, R. S. 1929; Breiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 1038; Mudd v. Wehmeyer, 19 S.W.2d 895; State ex rel. D. D. No. 28 v. Thompson, 41 S.W.2d 941; State ex rel. Douglas v. Redman, 270 Mo. 465, 194 S.W. 260. (2) To apply the construction of Sections 5588 and 5614, Revised Statutes 1909, as amended in 1913, as claimed by appellant, would make such sections retroactive, which cannot, under the Constitution be done. Sec. 15, Art. II, Const. Mo.; Sec. 19, Art. XII, Const. Mo.; State ex rel. Douglas v. Redman, 270 Mo. 465, 194 S.W. 260; Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; Barton County v. Walser, 47 Mo. 200; Gast Realty & Invest. Co. v. Schneider, 246 S.W. 177; Smith v. Dirckx, 223 S.W. 104. (3) If Sections 5613 and 5588, Revised Statutes 1909 and Section 5614, as it was amended, Laws 1913, page 279, can be construed to authorize levies in excess of the original levy, or in excess of benefits as originally assessed, then such portion or portions of said sections so authorizing are unconstitutional and void. Sec. 30, Art. II, the due process provision of Const. of Mo.; Clauses 3 and 4 of Amendment 5, Const. of United States, relating to due process, and the taking of private property for public use. The due process clause of Amendment 14, Const. of United States. (4) The assessments and levies challenged by respondent cannot under the facts be said to be "legislative assessments" as claimed by appellant. Mudd v. Wehmeyer, 19 S.W.2d 891. (5) Defendant is not estopped to deny the validity of the levies complained of. Sec. 2915, R. S. 1929; 19 C. J., sec. 248, p. 736; Cox v. Mignery & Co., 126 Mo.App. 669, 105 S.W. 675; Witterau v. Farmers,' etc., Trust Co., 285 Mo. 555, 226 S.W. 941.

OPINION

Hays, J.

This is an appeal from a judgment of the Circuit Court of Pemiscot County rendered for the defendant in a taxsuit to collect delinquent drainage taxes in the amount, approximately, of $ 23,000, alleged to be due Drainage District No. 8 of said county. The issue for determination is the validity of the assessed benefits which constitute the basis of the taxes in suit, and this is to be determined upon the record made in the drainage proceedings.

It is conceded that said drainage district was duly organized and incorporated in 1910 under the so-called County Court Act (Art. IV, Chap. 41, R. S. 1909); that benefits were assessed as provided by law in the sum of $ 668,856.65 and confirmed by the county court in September, 1911; that an order was duly made placing an assessment for benefits against all the lands for sums totaling $ 367,871.28, and issuing serial bonds, maturing May 1, 1915, to May 1, 1932, in the total sum of $ 330,000, and letting the contract for the work of construction.

The funds of the district were placed in the Pemiscot County Bank, which closed in July, 1913, with deposits therein to the credit of the construction fund of the district in the amount of $ 297,879.01. As the result of the bank's failure the county court, on February 15, 1915, found and declared it necessary, in order to complete the construction of the district according to the plan adopted and contract let, to make an additional assessment against the lands in the district benefited by the improvement and to issue and sell additional bonds in the amount of $ 200,000. The county court, in this order, referred to and confirmed the order of September, 1911, in which said original assessment was made and the bonds issued for the purpose of constructing the drainage system. The court further found, because of inability to obtain funds in the failed bank, it was necessary to make a further tax assessment of $ 222,552, and the additional assessment was thereupon made upon all the lands in the district in proportion to the original benefits, and $ 200,000 bonds were issued for the purpose of completing the construction of the district. These bonds matured from 1919 to 1935 and $ 125,000 thereof were made redeemable at the option of the county, the court ordering that since dividends would be declared from time to time by the bank the same should be appropriated and set aside for the payment and retirement of the larger part of the bonds just mentioned, and that when received these moneys would be applied thereto. With the proceeds of these two issues of bonds the original ditches were constructed.

In April, 1918, one John W. Forsythe and 131 other landowners in the district filed a petition in the county court for cleaning out the ditches, providing outlets and enlarging the dimension of the main ditch and laterals; and for the construction by District No. 8, either separately or in conjunction with Elk Chute Drainage District, of an outlet ditch of adequate size to carry away the surplus waters of No. 8, and that bonds of the district be issued in an amount sufficient to pay the cost of such improvements.

In pursuance of statutory notice given, the county court, on May 6, 1918, ordered L. E. Thrupp, engineer, to examine the ditches and make report thereon. On May 14, 1918, Thrupp made his report, in substance recommending that the work referred to in detail in the petition, including the additional outlet, be done as prayed in the petition. Whereupon hearing was continued to June 3, 1918, to...