Opinion
Opinion filed November 7, 1933.
1. — Drainage District — Municipal Corporation. It has been held repeatedly by the courts of this State that a drainage district is a municipal corporation.
2. — Drainage District — Services Rendered to It by Engineer — Suit to Collect for Same — District Only Necessary Party. In a suit by an engineer employed by the district to recover for services rendered the district, the district only, and not the landowners in the district, is the proper party defendant.
3. — Judgment — Jurisdiction of Subject-Matter and Person Being Present — Not Void — Collateral Attack Of. Where it is conceded the court had jurisdiction of the subject-matter and the court finds it has jurisdiction of the person, its judgment is not void and hence cannot be collaterally attacked.
4. — Judgment Void — Voidable — Distinction Between. A lack of power to hear the matter at all, that is, having no jurisdiction of the subject-matter, renders the judgment void, while the wrongful exercise of the power to hear and determine the matter renders the judgment merely voidable.
5. — Judgment Void — Voidable — Collateral Attack. Where the constitution or statute authorizes a court to do a particular thing, but the power of the court to act is subject to specific limitations, a judgment contrary to the limitations is not void for want of jurisdiction but voidable only and not subject to collateral attack.
6. — Judgment — Imports Verity Where Court Has Jurisdiction and Fraud in Procurement is Absent — Attack Therein Limited to the Record Evidence. Where the court has jurisdiction of the subject-matter, in the absence of fraud in the procurement, its judgment imports verity and cannot be attacked collaterally by evidence outside the record, nor for error or irregularity leading up to said judgment.
7. — Judgment — Finality of — Concludes All Issues Presented or Capable of Presentation in Controversy. The validity of a tax bill when sued on being the subject-matter of defense, a judgment for the amount of the bill becomes a finality upon the issues presented or presentable in that controversy and it cannot thereafter be collaterally attacked.
8. — Judgment — Estoppel By — Res Judicata in Tax Cases. In this State the doctrine of res judicata and estoppel by judgment applies as well to tax cases as to ordinary litigation between individuals.
9. — Mandamus — To Collect Judgment Against Drainage District — Right of Property Owner to be Heard in Said Proceedings. Where resort is had to mandamus to enforce levy of tax on property in Drainage District with which to pay judgment of engineer for services rendered the district, the property owner has the right and opportunity and must through that suit assert the tax is in excess of the statutory limit permitted by Section 10752, R.S. Mo. 1929, and failing, cannot later attack the judgment collaterally when sued for the tax so levied.
Appeal from the Circuit Court of Clark County. — Hon. Walter A. Higbee, Judge.
AFFIRMED.
Luther Luther, Rendlen, White Rendlen and B.F. Jones for defendants.
(1) The only authority and right to impose or levy any drainage tax exists by reason of a statute so providing. Those asserting the validity of the tax must point out the law authorizing. Birmingham Drain. Dist. v. C.B. Q.R. Co., 274 Mo. 140, 202 S.W. 404; Cunningham Realty Co. v. Drainage District No. 6, 40 S.W.2d 1086. (2) The plaintiff Drainage District could not levy over fifty cents per acre for preliminary work without a hearing therefor; Sec. 10752, R.S. 1929 (formerly Sec. 11, Laws 1913, p. 238); Sec. 10759, R.S. 1929 (formerly Sec. 18. Laws 1913, p. 23 —); Little River Drainage District v. St. Louis, M. S.E.R.R., 236 Mo. 94, 139 S.W. 330; Drainage District v. Bartlett Trust Co. (Mo.), 50 S.W.2d 627. (3) Any attempt to levy additional assessment herein over the fifty cents per acre levied upon appellants' land and by them paid is an attempt to exceed the legal authority and void, especially as there has been no day in court granted the landowners. State ex rel. Aull v. Shortridge, 56 Mo. 126; State ex rel. Watkins v. Macon County, 68 Mo. 29; United States v. Labette County, 7 F. 318; Little River Drainage District v. St. Louis M. S.E.R.R., 236 Mo. 94, 139 S.W. 330. (4) The writ of mandamus cannot compel the Drainage District to do an illegal act. The mandamus does not make legal the sixty cents levy it directed. Appellants are not bound thereby. State ex rel. Poole v. City of Willow Springs, 183 S.W. 589; United States v. Labette County, 7 F. 318.
B.L. Gridley and E.W. McManus for respondent.
(1) Judgment obtained by E. Hitt Stewart against the Drainage District established beyond question the validity of the debt and all steps leading to it. Those issues are res judicata. 34 C.J. 967; Harshman v. Knox Co., 122 U.S. 306; Ralls Co. v. United States, 105 U.S. 733; Hill v. Scotland Co. Ct., 32 F. 716; Hicks v. Cleveland, 106 F. 459. (2) Landowners are not proper or necessary parties either to the original suit by Stewart or the mandamus action. Cromwell v. County of Sac, 94 U.S. 351; Kenney v. Eastern Trust Banking Co., 123 F. 297; State ex rel., etc., v. Cook (Mo.), 201 S.W. 361; Gordon v. Burkhart, 59 Mo. 75; Barada v. Carondelet, 16 Mo. 323; State ex rel. v. Reynold, 226 Mo. 12, 178 S.W. 468. (3) The proceeding in mandamus is a remedy in the nature of an exception for the purpose of collecting a judgment. Harshman v. Knox Co., 122 U.S. 306; Thompson v. United States, 103 U.S. 480. (4) The plaintiff Drainage District is a municipal corporation and a political subdivision of the State. Mound City v. Miller, 170 Mo. 240, 70 S.W. 721; Houck v. Little River Drainage Dist., 248 Mo. 373, 154 S.W. 739; Morrisey v. Morey, 146 Mo. 543, 48 S.W. 629; McQuillin, Municipal Corporations (2 Ed.), sec. 125. (5) Mandamus is the proper remedy to recover the judgment obtained against municipalities or public corporations. State v. Butler Co., 164 Mo. 214, 64 S.W. 176; 38 C.J. 761. (6) Assessments for drainage district purposes do not create an indebtedness within constitutional limitations. C.M. St. P.R.R. Co., 266 Mo. 60, 178 S.W. 893; Houck v. Little River Drainage District, 248 Mo. 373, 154 S.W. 739. (7) The board of supervisors of drainage districts is empowered to employ competent engineers for the district. R.S. 1919, Sec. 4385 (Sec. 10750, R.S. 1929). (8) The board of supervisors is empowered to complete all or any works or improvements which may be needed to carry out, maintain and protect "the plan of reclamation." R.S. 1919, Sec. 4393 (Sec. 10758, R.S. 1929). (9) The board of supervisors is empowered to enter into contracts with and employ attorneys for the district. R.S. 1919, Sec. 4403 (Sec. 10770, R.S. 1929). (10) The board of supervisors is empowered and authorized to provide for the compensation of officers and engineers, attorneys and other employees and pay their fees and necessary expenses. R.S. 1919, Sec. 4414 (Sec. 10782, R.S. 1929). (11) Where a quasimunicipal corporation has the power to enter into contracts for services or material, there is an implied power to levy and collect and pay over funds necessary to pay the agreed price therefor. Bates Co., Mo., v. Wills, 239 F. 785; United States v. Saunders, 124 F. 124, 128-131, 59 C.C.A. 394; Loan Ass'n v. Topeka, 20 Wall. 655, 660, 22 L.Ed. 455; United States v. New Orleans, 98 U.S. 381, 393, 28 L.Ed. 225; Ralls County Court v. United States, 105 U.S. 733, 26 L.Ed. 1220; United States v. Clark County, 96 U.S. 211, 24 L.Ed. 628; Commonwealth v. Commissioners of Allegheny County, 37 Pa. 277, 290; Lowell v. Boston, 11 Mass. 454, 15 Am. Rep. 39; State ex rel. Hasbrook v. Milwaukee, 25 Wis. 122; Norris v. Montezuma Valley Dr. Dist., 248 F. 369-372; Bunch v. United States, 252 F. 673, 679; Wolff v. New Orleans, 103 U.S. 358.
This is a suit by the Mississippi and Fox River Drainage District of Clark County, Missouri, against A.J. Ruddick and C.A. Ruddick to collect an assessment levied against land owned jointly by them and located within the boundaries of said drainage district. The case was tried without the aid of a jury and resulted in a judgment for plaintiff, and defendants appeal.
The case was submitted to the trial court upon an agreed statement of facts from which it appears that the Mississippi and Fox River Drainage District of Clark County, Missouri, was duly incorporated as a drainage district on October 8, 1915, and that a board of supervisors was duly elected and qualified, which board, in accordance with the provisions of Section 11 of the Laws of Missouri, 1913, page 238 (now Sec. 10752, R.S. Mo. 1929), levied a uniform tax of fifty cents per acre upon each acre of land within said district "to be used for the purpose of paying expenses incurred or to be incurred in organizing said district, making surveys of the same, and assessing benefits and damages, and to pay other expenses necessary to be incurred before said board shall be empowered by specific provision of this article to provide funds to pay the total costs of works and improvements of the district," and that the defendants herein paid said levy.
It further appears that the board of supervisors of the drainage district, under Section 9, page 237, Laws of Missouri, 1913 (now Sec. 10750, R.S. Mo. 1929), appointed one E. Hitt Stewart chief engineer to "have control of the engineering work in said district, and that said Stewart filed suit and obtained judgment against the Mississippi and Fox River Drainage District for the sum of $3531.09, for services rendered by him as supervisor and chief engineer, together with other claims assigned to him arising out of the organization and preliminary work in connection with said drainage project." It is conceded that the Ruddicks, defendants herein, were nonresidents of the State of Missouri and were not made parties defendants to said action by Stewart, and individually "did not appear therein." It further appears that no appeal was taken in said case.
After Stewart had obtained said judgment against the drainage district he instituted a suit against the drainage district and its board of supervisors in mandamus to compel the levy of an additional tax of sixty cents per acre upon each acre of land within said district for the purpose of paying his judgment, and in this action the defendants Ruddicks were not named as defendants. A hearing was had which resulted in the issuing of a peremptory writ of mandamus directing the supervisors of the drainage district to levy, assess and collect a uniform tax of sixty cents per acre, and the supervisors of the district did levy such tax.
It is admitted that the tax levied against the lands of defendants became delinquent and remains unpaid.
The agreed statement of facts further discloses that commissioners were duly appointed by the circuit court to assess the benefits and damages, and that said commissioners filed a report assessing such benefits and damages in the circuit court of Clark County, and that afterwards said report was withdrawn and that no further report of benefits or damages has been made, and that the drainage district has never been dissolved by order of any court.
The case at bar having been submitted to the trial court upon said agreed statement of facts, defendants requested an instruction to the effect that under the law and evidence the court's finding and judgment must be for the defendants, which instruction was refused, and thereafter judgment was rendered for plaintiff.
The appellants here contend that the object of their appeal is to have this court determine whether or not a drainage district may levy a tax of sixty cents per acre for the paying of expenses arising out of the organizing of the drainage district and preliminary work, over and above the fifty cents per acre provided for such purpose under Section 10752, Revised Statutes of Missouri, 1929. Upon the facts disclosed by the record this point is not before us.
Our Supreme Court has repeatedly held that a drainage district is a municipal corporation. [Honey Creek Drainage Dist. v. Invest. Co. (Mo.), 32 S.W.2d 753; State ex inf. Atty.-Gen. v. Hughesville Road Dist. No. 11 of Pettis County (Mo.), 6 S.W.2d 594; Barnes v. Constr. Co., 257 Mo. 175, 165 S.W. 723; Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S.W. 12; State ex rel. Compton v. Drainage Dist., 192 Mo. 516, 90 S.W. 722; Mound City Land Co. v. Miller, 170 Mo. 240, 70 S.W. 721, 94 Am. St. Rep. 727, 60 L.R.A. 190.]
The record discloses that Stewart's original action, as well as his action by way of mandamus, was brought against the drainage district and its board of supervisors. In light of the rulings of our Supreme Court, that in this State a drainage district is a municipal corporation, Stewart's actions were brought against the proper parties defendants, and individual landowners comprising the district were not required to be made parties defendants in either of said actions.
In Kinney v. Eastern Trust Banking Co., 123 F. 297, wherein a taxpayer sought to intervene in a mandamus proceeding, the court specifically held that he had no right, and in the course of the opinion said:
"The question, then, is whether, in a mandamus proceeding to enforce a judgment against a municipality, a taxpayer is entitled to intervene, and go back of the judgment, and reopen the case, simply because he was not a party to the original suit. If he is, then, to make such a judgment effective, not only every existing, but every prospective taxpayer must be made a party. Of course, this could never be done and, therefore, a conclusive judgment never obtained. Each time the writ of mandamus issued to enforce the judgment, a new taxpayer would be found to open it up and relitigate the case. The supposed right of a taxpayer to intervene flows from a misconception both of the nature of the obligation upon the bonds and of the character of the mandamus proceedings to enforce the judgment. The obligation is not that of the taxpayer, but of the corporation. No one would have bought a bond to which every taxpayer was a party and against which each might to set up a defense. The purchaser relied upon the faith of the corporation, and judgment recovered is against it. The mandamus proceeding is purely ancillary in character. It is not a new suit against the taxpayers. It is a mere substitute for the ordinary process of execution to enforce the judgment. [Riggs v. Johnson Co., 6 Wall. 166, 198, 18 L.Ed. 768.]"
It being conceded that the circuit court had jurisdiction over the subject-matter, and our ruling from the face of the judgment that the court had jurisdiction of the proper parties defendants, the tax judgment is not void, and therefore not subject to collateral attack.
There is a distinction between the jurisdiction over subject-matter and the exercise of jurisdiction in a particular proceeding, turning upon the difference between wrongful exercise of power to hear and determine, which renders the judgment merely voidable, and a lack of power to hear the matter at all, which renders it void. [State of Mo. v. Edwards, 192 Mo. App. 413, 182 S.W. 816 (record quashed in State ex rel. Edwards v. Ellison (Mo.), 196 S.W. 752).]
Where the constitution or statute authorizes a court to do a particular thing but the power of the court to act is subject to specific limitations, a judgment of the court rendered contrary to the limitations imposed is not void for want of jurisdiction but is voidable only, and not subject to collateral attack. [Smith v. Black, 231 Mo. 681, 132 S.W. 1129; Sullinger v. West (Mo.), 211 S.W. 65.]
Where a court has jurisdiction of the subject-matter and of the parties, its judgment, in the absence of fraud in procuring it, imports absolute verity and cannot be attacked by evidence outside the record. [Strobel v. Clark, 128 Mo. App. 48, 106 S.W. 585.] And where a court of general jurisdiction has acquired jurisdiction of a case, any subsequent error or irregularity will not oust it therefrom nor subject a judgment, in the exercise of that jurisdiction to collateral attack. [State v. Wear, 145 Mo. 162, 46 S.W. 1099.] Its judgment, however erroneous, is not void so as to be subject to collateral attack. [Harter v. Petty, 266 Mo. 296, 181 S.W. 39; Forest Lbr. Co. v. Mining Co. (Mo.), 222 S.W. 398; Abernathy v. Ry. Co., 287 Mo. 30, 228 S.W. 486.]
That the tax bill, which is the subject-matter of this suit, was void and did not authorize judgment, does not go to the jurisdiction of the court but was a matter of defense to be set up in the action and cannot avail in a collateral proceeding. [Knoll v. Woelken, 13 Mo. App. 275.] Any errors complained of, including the question of the alleged error of the trial court in issuing its writ of mandamus requiring the drainage district to levy an additional tax of sixty cents per acre to cover Stewart's judgment, could have been reviewed upon appeal of that case. No appeal having been taken from the judgment therein, the judgment became final and as to that issue is res adjudicata. For us to consider that assignment of error would be to permit a collateral attack on a judgment which has become a finality upon the issues in that controversy, and by which judgment the parties and their privies are precluded not only as to every matter which was presented to sustain or to defeat any of the issues in the case, but also as to any admissible matter which might have been offered for that purpose.
It is no longer open to question in this State but that the doctrine of res judicata and estoppel by judgment applies as well to tax cases as to ordinary litigation between individuals. [State ex rel. Blair v. Mining Co., 262 Mo. 490, 171 S.W. 356; North St. Louis Gymnastic Society v. Hagerman, 232 Mo. 693, 135 S.W. 42.] Therefore no defenses can be urged which existed anterior to the judgment, the effect of which would be to render the judgment merely defective, erroneous or voidable, but not void.
The right and opportunity to be heard in opposition to the levy of the tax to pay Stewart's judgment, on the ground that such tax was in excess of the statutory limitations permitted by Section 10752, Revised Statutes of Missouri, 1929, was afforded in the mandamus proceeding, and said judgment, which is the foundation of this suit, cannot be attacked collaterally on that issue. [State ex rel. Heutschel v. Cook (Mo.), 201 S.W. 361; Edmunston v. School Dist., 98 Iowa 639.]
The judgment should be affirmed. It is so ordered. Kane and McCullen, JJ., concur.