State v. Redman

• Decision Date: 30 March 1917
• Docket Number: No. 18987.,18987.
• Citation: 194 S.W. 260,270 Mo. 465
• Parties: STATE ex rel. DOUGLAS, Revenue Collector, to Use of DRAINAGE DIST. NO. 4 OF DUNKLIN COUNTY, v. REDMAN.
• Court: Missouri Supreme Court

194 S.W. 260

270 Mo. 465

STATE ex rel. DOUGLAS, Revenue Collector, to Use of DRAINAGE DIST. NO. 4 OF DUNKLIN COUNTY, v. REDMAN.

No. 18987.

Supreme Court of Missouri, Division No. 1.

March 30, 1917.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Suit by the State, on the relation of T. J. Douglas, Collector of Revenue of Dunklin County, Mo., and for the benefit of Drainage District No. 4 of that county, against C. C. Redman, to collect delinquent ditch taxes. Judgment nisi for defendant, and plaintiff appealed to Springfield Court of Appeals, which certified case on the ground that record involves constitutional questions and the construction of revenue statutes. Affirmed.

Fort & Zimmerman and Ely, Pankey & Ely, all of Kennett, and Oliver & Oliver, of Cape Girardeau, for appellant. Bradley & McKay, of Kennett, for respondent.

GRAVES, J.

This case reaches us through a certification from the Springfield Court of Appeals; the grounds for such certification being that the record involves constitutional questions, as well as a construction of revenue statutes. It is sufficient to say that constitutional questions were duly lodged in the answer. Judge Sturgis for the Springfield Court of Appeals thus states the case (190 Mo. App. 300, 176 S. W. 714):

"This is a suit for delinquent drainage ditch taxes assessed against land owned by defendant. The suit is brought in the name of the state at the relation of the collector for the revenue of Dunklin county, Mo., for the use and benefit of drainage district No. 4 of that county. The record discloses that such drainage district is one formed under the supervision of the county court as provided by article 4 of chapter 122, R. S. 1899, which, as amended in 1905, is now article 4 of chapter 41 (sections 5578-5635) R. S. 1909. The controversy is as to the amount of special taxes properly assessed against this land; the defendant conceding and offered to pay $59, while plaintiff demands $115.56. The amount defendant concedes and is offering to pay is the original (annual) assessment made or confirmed by the county court under section 8288, R. S. 1899 (section 5588, R. S. 1909), and apportioned into installments under section 8300, R. S. 1899 (section 5601, R. S. 1909). It appears that the county court some five or six years after the drainage district was formed and the confirmation of the original assessments made by the viewers and engineers appointed for that purpose undertook, by its order of April 29, 1912, to `rearrange' and increase the amounts of the annual installments yet to fall due for the years 1912 to 1924, inclusive. The occasion for making this order, as we gather from the record, is that because of some error the county court issued and sold bonds to the amount of nearly $56,000, but levied assessments against the lands within the district for an amount of only about $36,000. The increased assessments are to cover this deficiency of some $20,000, and provide a fund, otherwise insufficient to pay the bonds at maturity. It is agreed that if the county court has power and authority to make this order of April 29, 1912, increase the annual assessments, then the amount demanded is due; otherwise, only the amount tendered is due. The defendant contends that the county court exhausted its power to make assessments in its order confirming the report of the viewers and engineers in connection with the formation of the district and could not at a later date make another order increasing the amounts then assessed.

"The defendant's answer contains these allegations: `And defendant further answering says that plaintiff is attempting to collect from him a second assessment which was made without notice to defendant, and defendant says that the county court of Dunklin county, Mo., had no authority to make such second assessment, as was done in this instance, inasmuch as such second assessment was made without any notice and made after the completion of the work to be done in said drainage district and was made without due process of law, and it constituted the taking of private property for public use without compensation in violation of the federal and state Constitution, to wit, section 1 of the fourteenth amendment of the Constitution of the United States, and section 30 of article 2 of the Constitution of the state of Missouri. Wherefore, defendant says that said second assessment or arrangement wherein his taxes were increased from $59 to $115.56 is null and void and of no effect, and he asks judgment canceling said order of the said county court for the reason that the same is null and void and without authority and in violation of both the federal and state Constitutions, and that plaintiff may be compelled to accept the said sum of $59, the original amount due under the original assessment made by the viewers and engineer in said drainage district and confirmed by the final order of the county court in approving the final report of the said viewers and engineer in said drainage district.' In this connection, the record shows that no notice was given to the landowners as to the action of the county court in making this order of April 29, 1912, increasing the assessments. The plaintiff's contention is that the landowners were already in court for this purpose because of receiving notice of the original proceedings."

Such other matters as may be material can be noted in the course of the opinion. The foregoing outlines the case.

I. The question involved is single and plain. Whether easy of solution remains to be seen. The validity of the order of the county court of Dunklin county of date April 29, 1912, is the turning point in the case. The surrounding facts are: The county court in fact approved of an amount of benefits as against the land involved herein, which, exclusive of interest, is more than sufficient to pay all previous amounts, and all assessments to be made under this order of April 29, 1912. However, at the time of the organization of the district, and whilst approving the report of the viewers, and approving the assessments of benefits aforesaid against the land in question, the county court approved and provided for annual assessments, which was discovered would not meet the bond issue which the court had directed to be issued. This bond issue was for $55,977.77. They were sold for $56,077.77, and that sum placed to the credit of the district. When the work had been done, it was found that there was a surplus of $8,000, and this was used in the discharge of the obligations and accrued interest. Although the court directed the issuance of bonds in the sum of over $55,000, as stated supra, it only approved and directed assessments against benefits in something over $36,000, leaving a difference between the bond issue and the provision for its payment of more than $19,000.

This difference was reduced, by the application of the surplus aforesaid, to a little over $15,000. In 1912, when the discrepancy between the bonded debt and this approved assessment was discovered, the order of April 29, 1912, for an increase assessment for the remaining years was made at the instance of the bondholders. Under the original assessment, the amount due from respondent's land for 1912 was $59, but under the order of April 29th, supra, it was $115.56. The difference was the real amount in dispute, defendant having tendered the former sum, and kept his tender good by deposit.

Defendant was not the owner of the land in question at the organization of the district, but bought it afterwards, and prior to the order of April 29th, supra. It is admitted that no notice was given to landowners prior to making this order of April 29th, but that the previous owner of the land involved was properly in court at the organization of the district is not questioned. The trial court held that the defendant was not liable for more than the $59, and that the order of April 29th, supra, was invalid. This view is reached from several angles, and these we take in order.

II. It is first contended that, after the county court had made its original assessment against the lands of the district, its power in the premises was fully exhausted, and no further exercise of the power to levy assessments could be valid. This on the theory that under the county court act there was no specific grant of power to make a second or additional assessment, even though the benefits found are in excess of the assessment made. Just how the discrepancy between the authorized bond issue and the first assessment of taxes made, occurred, does not clearly appear from the record. It does appear, however, that the reported benefits were some thousands more than the bond issue, and the directed assessments of taxes some $19,000 less than the bond issue. If the county court exhausted its power, when it made the first assessment of taxes against the lands of this district, then we have an end to this controversy.

In 1913, the Legislature (Acts of 1913, pp. 271 and 281) made specific provisions for additional levies of assessments, and from this it is argued that we have a legislative construction to the effect that no such power previously existed. If this contention be true, it is at best only persuasive, rather than binding authority. We must go to the previous law, and from its context determine the powers of the county court. This drainage district was organized under article 4, c. 122, R. S. 1899, as amended by the act of 1905. We will have to go to the said act of 1905 for most of the law of this case, as it was in full effect at the organization of the district. This act repealed many sections of article 4, c. 122, R. S. 1899, and enacted new sections in lieu thereof. These new sections are the applicable law, and if they, when considered with the old sections, furnish no basis for a subsequent assessment of the lands in the district, defendant is right in his contention. That there...