State v. Thompson

• Decision Date: 15 June 1926
• Docket Number: No. 27027.,27027.
• Parties: STATE ex rel. LITTLE PRAIRIE SPECIAL ROAD DIST. OF PEMISCOT COUNTY et al. v. THOMPSON, State Auditor.
• Court: Missouri Supreme Court

285 S.W. 57

STATE ex rel. LITTLE PRAIRIE SPECIAL ROAD DIST. OF PEMISCOT COUNTY et al. v. THOMPSON, State Auditor.

No. 27027.

Supreme Court of Missouri, in Banc.

June 15, 1926.

Mandamus by the State,.on the relation of Little Prairie Special Road District of Pemiscot County and others, against L. D. Thompson, State Auditor. Peremptory writ awarded.

Ward & Reeves, of Caruthersville, for relators.

North T. Gentry, Atty. Gen., and Geo. W. Crowder, Asst. Atty. Gen., for respondent.

WHITE, J.

The relators present their petition for a, writ of mandamus commanding the respondent, L. D. Thompson, state auditor, to register bonds amounting to $150,000 issued by the Little Prairie special road district of Pemiscot county. The respondent waived the issuance of an alternative writ, entered his appearance, and filed his demurrer to the petition as and for such writ.

The facts stated in the petition are briefly as follows: The Little Prairie road district of Pemiscot county was duly organized in 1917, under the statute which is now article 7, c. 98, of the Revised Statutes of Missouri for 1919, and it is now and ever since 1917 has been organized, acting, and functioning as a special road district. Said article was adopted by the people of said district at an election duly called for that purpose by the county court, and thereafter three commissioners for the government of said district were chosen as provided in said article. The commissioners received from the county court and used the machinery kept for working roads belonging to districts previously existing in said territory, exercised jurisdiction over the highways in said territory, improved and repaired the public highways in said district by employment of laborers and by using rented, leased and purchased teams, tools, and implements, held meetings as prescribed in said article, once a month or oftener, received the district's proportion of money collected from the dramshop, pool, and billiard licenses by the county, and from 1917 to 1925, inclusive, collected upon the property in said road district all county taxes levied for road and bridge purposes, and in all respects discharged the functions which they were authorized to discharge under said article 7. In 1919, after the said Little Prairie special road district had been functioning, as aforesaid, for a period of two years, the board of commissioners, authorized by an election of the voters of the district, issued bonds in the sum of $105.000. Beginning with that year the said district through its board of commissioners levied a general ad valorem tax upon all property subject to taxation within the district, and from year to year collected same for the purpose of providing funds to meet the interest and principal of said bonds. Beginning with the year 1921, the board annually, with the proceeds of said taxes, paid off and retired certain of said bonds, reducing the outstanding indebtedness to $81,500.

August 29, 1925, the board of commissioners made an order proposing to issue bonds in the sum of $150,000, on behalf of said district, for the purpose of construction and improvement of roads, bridges, and culverts in said district, the first installment of said bonds to become due January 1, 1928. The order recited that the valuation of the property within the district was $6,745,000, and the bonds proposed, together with the existing indebtedness, would not exceed 5 per cent. of the assessed valuation of the property of the district. A special election was called as provided in sections 10747, 10748, 10749, and 10750, R. S. 1919, as amended by the Act of 1923, pp. 339, 345, and was duly held in accordance with the said order September 24, 1925. The proposition to issue bonds for $150,000 was carried by a vote of 1,231 for, and 52 votes against, the proposition—more than two-thirds voting for it, as the law required.

The bands were duly printed, executed, and, February 26, 1926, offered to the state auditor, L. D. Thompson, respondent, for registration, and said state auditor refused to register them or permit them to be registered, which refusal was not on account of any irregularity in the organization of said district nor in the proceedings authorizing the issuance of said bonds, but solely on account of a decision of the Supreme Court of the United States in the case of Perry Browning et al. v. E. M. Hooper et al., 46 S. Ct. 141, 70 L. Ed. —, decided by that court January 4. 1926.

The demurrer is on the ground that the statute under which the Little Prairie special road district was organized and amendments thereto (article 7, c. 98, R. S. 1919), was unconstitutional, and denied the citizens, property holders and taxpayers, affected by said proceeding, due process of law, in violation of section 30, art. 2 of the Constitution of Missouri, and section 1 of the Fourteenth Amendment to the Constitution of the United States, and that such is the effect of the opinion rendered by the Supreme Court of the United States in the case of Browning v. Hooper.

I. This court in several cases has held the road district law (article 7, c. 98), is not in violation of any provision of the Constitution of this state. Therefore we have to consider only whether, on the authority of Browning v. Hooper, that article is in conflict with the due process provision of section 1 of the Fourteenth Amendment to the Constitution of the United States, which is the same as section 30, art. 2, of the Constitution of Missouri.

The statute of Texas which was before the federal Supreme Court provided that any county in the state of Texas, "or any political subdivision, or defined district, now or hereafter to be described and defined, of a county, is hereby authorized and empowered to issue bonds," etc., not exceeding one-fourth of the assessed valuation of the real property "of such county or political subdivision, or defined district thereof." Upon the petition of 50, or a majority, of resident taxpaying voters in any county, political subdivision, or defined district, to the county commissioners' court, such court should have power to order an election to determine whether or not the county, political subdivision, or defined district should issue bonds in any amount not exceeding one-fourth of the assessed valuation of the property, etc., in such county, political subdivision, or defined district. If it appeared to the commissioners' court that two-thirds majority of the votes cast at the election were in favor of the issuance of the bonds, then the county commissioners' court should issue bonds on the faith and credit of said county, or political subdivision, or defined district. It was provided further that the order and notice of election shall describe the boundaries, or any political subdivision, or defined district. The county commissioners' court was to levy and collect a tax upon the property of the county, political subdivision, or defined district, for the purpose of providing a sinking fund and paying interest on the bonds. Any political subdivision or defined district accepting the provisions of the law by voting such tax was made and created a body corporate.

The suit in the Browning Case was to enjoin the issuance and sale of bonds proposed to be issued and sold to construct and maintain roads in road district No. 2 of Archer county, Tex., a "defined district." A petition signed by 74 persons residing within the bounds of a territory described in the petition by metes and bounds in Archer county, Tex., prayed for an election for the purpose of determining whether $300,000 in bonds should be issued and a tax levied upon the property therein to pay the bonds. The county commissioners' court thereupon ordered established a district within the metes and bounds described in the petition and declared it to a body corporate, and on the same day fixed a time and place for the election, which resulted in favor of the proposition. The opinion, after stating other facts in relation to the condition existing in Archer county, held that the proceeding could not be sustained as a levy of a general tax, and said:

"The expenditure of the moneys so raised is not limited to any specified roads. And it is significant that, in the case of a road district, the court's duties in respect of the amount to be raised and the lands to be subjected to the charge are purely ministerial, and confined solely to carrying out the will of the petitioners when approved at the election. Here, on the initiation of individuals signing the petition, a special district was carved out to furnish credit and to pay for specified improvements on designated roads wholly within the territory selected. The purpose was special, and the district will cease to exist as a body corporate upon the payment of the bond debt. It is clear that the burdens here sought to be imposed on appellants' lands are special assessments for local improvements. Embree v. Kansas City Road District, 240 U. S. 242, 247, 36 S. Ct. 317, 60 L. Ed. 624; Illinois Central Railroad v. Decatur, 147 U. S. 190, 197, 209, 13 S. Ct. 293, 37 L. Ed. 132."

And, further:

"The Legislature did not create the road district, levy the tax or fix the amount to be raised. Under the act, road districts are not required to correspond with or to include any political subdivision. Moore v. Commissioners' Court (Tex. Civ. App.) 175 S. W. 849; Bell County v. Hines (Tex. Civ. App.) 219 S. W. 556. There is nothing in the law to guide or to limit the action of the signers of the petition in selecting property to be assessed. Subject to the vote of a district of their own choice, the petitioners' designation is absolute. The Commissioners' Court has no power to modify or deny; it is bound to grant the petition. Huggins v. Vaden (Tex. Civ. App.) 253 S. W. 877, 878; [Id.] [Tex. Civ. App.] 259 S. W. 204, 206; Meurer v. Hooper (Tex. Civ. App.) 271 S. W. 172, 176.

The court points out that under the rulings of ...