The State ex rel. Brown v. Wilson

• Citation: 115 S.W. 549,216 Mo. 215
• Parties: THE STATE ex rel. BROWN, Collector of Lincoln County, Appellant, v. A. C. WILSON, Appellant
• Decision Date: 14 January 1909
• Court: United States State Supreme Court of Missouri

115 S.W. 549

216 Mo. 215

THE STATE ex rel. BROWN, Collector of Lincoln County, Appellant, v. A. C. WILSON, Appellant

Supreme Court of Missouri, First Division

January 14, 1909

Appeal from Pike Circuit Court. -- Hon. D. H. Eby, Judge.

Reversed and remanded (with directions).

O. H Avery, W. A. Dudley and J. D. Hostetter for plaintiff-appellant.

(1) Defendants make a collateral attack on the judgment. Lovett v. Russell, 138 Mo. 477. The county court had express authority given by the statute to pass on the sufficiency of the initial notice and "continue the case for want of sufficient notice or other good cause" (fourth section), to decide all questions as to the "validity of the proceedings" whether "legal or jurisdictional", to pass upon the necessity for any modification of the report of the commissioners in "any respect" and render a "final and conclusive" judgment confirming the assessments and incorporating the district. R. S. 1899, sec. 8331. Under these circumstances all "jurisdictional requisites" will be conclusively presumed to have been complied with. Lingo v. Bufford, 112 Mo. 149; Union Depot Co. v Frederick, 117 Mo. 138; Belk v. Hamilton, 130 Mo. 292; State v. Smith, 119 Mo.App. 542. But this is not all. The law (14th section) expressly requires that the party objecting shall do so on the day set for hearing and that he shall do so by "remonstrance verified by affidavit" and shall set forth therein his objections whether "legal or jurisdictional." All the objections here urged are either legal or jurisdictional. These defendants were in court both as petitioners and by notice. What excuse do they now offer for having failed to object when they had their "day in court" or for objecting without a plea in similar form and substance to that required by law? St. Louis v. Brown, 155 Mo 545; Kansas City v. Duncan, 135 Mo. 571. (2) The county court was vested by law with jurisdiction to levy all of the assessments authorized by this drainage act. It, in other words, had jurisdiction of the subject-matter. Defendants by their remonstrance gave jurisdiction of their persons by entering their unlimited appearance, thus waiving all questions of notice. Allen v. Welch, 125 Mo.App 278. The question, then, necessarily came before the county court and the circuit court as to the legality of the indebtedness created by the old board and as to the power of the county court to levy an assessment to pay it. On the trial of those questions it might have been urged that Wilson and Dumphy promoted the proceedings up to that hour, that they stood by and saw their lands improved by the creation of this debt, and were now estopped to prevent its payment. State ex rel. v. Mastin, 103 Mo. 508. It might with propriety also have been pointed out that the rights of way having already been acquired by deeds, the proceedings under the twentieth section were not an exercise of the law of eminent domain, but were referable solely to the taxing power. Keith v. Bingham, 100 Mo. 300. And that, therefore, the same strictness as to notice was not required to constitute due process of law under the Constitution. That there is a wide distinction between the powers exercised under section 14 and section 20 of this Drainage Act. The first establishes the limits of the district, fixes the proportion in which each tract shall bear the burdens of the proposed work, estimates the benefits and damages and condemns the right of way, having thereafter only the exercise of simple taxing power and power to build the works already proposed. Under the first steps the fullest provisions for notice and hearings were made. Defendants, with full knowledge of the possibility that future summary assessments might be required to complete the proposed work, based on the ratio of benefits reported and then before them, made no objection. Viewed in this light, there is no possible constitutional objection to the summary levy authorized by the twentieth section. Pav. Co. v. French, 158 Mo. 534, 181 U.S. 324; St. Joseph v. Farrell, 106 Mo. 437; Keith v. Bingham, 100 Mo. 307; Mound City Land & Stock Co. v. Miller, 170 Mo. 240; State ex rel. v. Holt Co., 135 Mo. 533. Nor is it true that all of the benefits were absorbed by the first assessment. Counsel are misled by the terms used by the commissioners in apportioning the $ 12,247.17 required for the work, against the several tracts of land, but keeping in view the fact that they were levying this money from benefits and that they in the same paper reported the gross benefits at $ 87,500 or more, their error becomes apparent. Nor in view of the statute is it true that these gross reported benefits are unavailable for future assessments. The commissioners and county court have duly fixed the ratio of benefits among the various tracts and the assessment thereafter is as simple as the front-foot rule established throughout this country and affords no more occasion for notice than does a levy under that rule or under the general revenue laws. In this view, Norwood v. Baker, 172 U.S. 269, and similar cases, have no applicability whatever. These and other considerations doubtless were urged in the presence of defendants in the county court. They naturally prevailed. Defendants acquiesced and the work of improving their lands according to the plans inaugurated and put through by them went on. They by all good reason and authority and in justice are and ought to be estopped from raising any question as to the validity of these taxes. No captious reason should be sought or heard to relieve a man who inaugurates a plan by which his neighbors are forced to improve his property and when called upon to take his own vermifuge comes up with an ex post facto cry of unconstitutional. State ex rel. v. Mastin, 103 Mo. 508; 28 Cyc. 1172, 1173; Brick & Terra Cotta Co. v. Hull, 49 Mo.App. 433; Cross v. Kansas City, 90 Mo. 13. (3) On the points already made all of the assessments were legal and valid. Upon a valid assessment, all subsequent proceedings are directory. State ex rel. v. Phillips, 137 Mo. 259; State ex rel. v. Harper, 83 Mo. 670; State ex rel. v. Bank, 120 Mo. 161; Thomas v. Chapin, 116 Mo. 396; State ex rel. v. Hurt, 113 Mo. 90; State ex rel. v. Miller, 116 Mo. 399; State ex rel. v. Bank, 144 Mo. 381; R. S. 1899, secs. 9179, 9329; State ex rel. v. Carr, 178 Mo. 229. The doctrine of these cases is that proof of a valid assessment, its entry in the tax book and failure of the taxpayer to pay it, makes out a good case -- one which mere neglects of officials, delays, irregularities or omissions will not defeat. The doctrine of these cases and statutes destroys the force of the whole brood of objections of the character urged in points 13 to 19 inclusive, of defendants' brief. Aside from the curative sections in our revenue laws, the twenty-seventh section of this Drainage Act proclaims the remedial character of the act and demands a liberal construction of its provisions, for the promotion of its beneficent purposes. (4) The county collector is obviously the party to sue for the taxes in the form of the proceedings in this case. The assessments if not paid when due are to be certified to the county clerk who shall enter the same in the tax lists; this tax list, the tax book, is delivered to the collector and "shall be collected in the same manner that State, county and town, township taxes are collected." R. S. 1899, secs. 8332, 9194; State ex rel. v. Angert, 127 Mo. 456. (5) The first assessment was payable January 1, 1895, and the second July 1, 1895. Both dates occurred more than five years before December 28, 1900, the date of filing suit, and if the statute is to run from the date these assessments were payable, then undoubtedly the verdict of the lower court is not erroneous, but an examination of the statute governing such cases, we think will convince the court that the lower court was in error in deciding that these assessments were barred by the Statute of Limitations. R. S. 1899, sec. 8332, is a part of the law creating these drainage districts, and it is at once apparent therefrom that taxes accruing thereunder are assessed and collected in the same manner and by the same proceedings as general taxes. This section requires that unpaid assessments be certified by the levee commissioners to the county clerk, and that same be entered in the tax list next thereafter to be made. The delinquent tax list of these two installments, the first and second, was not filed in the office of the county clerk until July 15, 1896. It is certainly evidenced from sec. 9291, R. S. 1899, that even though the assessment was due the first day of January, 1895, under no circumstances did it become delinquent until the first day of January, 1896, and the second assessment not being due until July 1, 1895, would not under the provisions of this law become delinquent until the first day of January, 1896. State ex rel. v. Carr, 178 Mo. 229. The court found that the petitions were both filed on the 28th day of December, 1900, with the clerk of the circuit court. This certainly under the rulings of the court was a commencement of the suit. Lumber Co. v. Wright, 114 Mo. 326; McGrath v. Railroad, 128 Mo. 1. (6) In the suit against A. C. Wilson et al. the court only finds taxes due on 101.41 acres, the east side of lot 8, and gives as a reason for not assessing the balance of lot 8, the sixty acres on the west side, that this west side had not been duly returned and certified as delinquent. The court finds that the levy or assessment had been properly made; finds that the taxes had not been paid and were due, and this is all that it is necessary to find to authorize a judgment for the amount. Sec. 9291, R. S. 1899; State ex rel. v. Bank, 144 Mo. 385; Thomas v. Chapin, 116...