Opinion
No. 21595.
June 4, 1951.
APPEAL FROM THE LIVINGSTON CIRCUIT COURT, LIVINGSTON COUNTY, JAMES W. DAVIS, J.
Joseph J. Shy, Chillicothe, for appellant.
None, for respondent.
Appellant sought the appointment of a receiver of the Honey Creek Drainage District to carry out the terms of a judgment and decree against that District. The court denied the application, from which ruling this appeal was taken.
The appellant obtained a judgment and decree against the District in 1943 in the Circuit Court of Livingston County. According to the facts found in that decree, the Honey Creek Drainage District had been organized in 1927, under Article 1, Chapter 28, R.S.Mo., 1919, R.S. 1949, § 242.010 et seq., for the purposes of draining and reclaiming certain lands in the above county; that pursuant thereto a Board of Supervisors had been elected, which thereafter incurred certain preliminary expenses for which the District issued warrants, and which were and continue to be the obligation of such District; that the warrants are now the property of the plaintiff in said cause; that other obligations of the District are outstanding; that the defendant members of the Board of Supervisors have made no attempt to enforce the collection of any tax to pay such obligations; that A. M. Howard, J. M. Hughes, J. O. Mack and Roy Pruitt compose the Board of Supervisors. It was adjudged and decreed in that cause that the plaintiff have judgment against the District for the warrants described in his petition; that the defendant board members and the District be and they were directed to proceed to levy a preliminary tax not to exceed 50 cents an acre on all lands within the District, and to take all necessary steps to levy and to collect said tax for the payment of such obligations. The court in its judgment entry retained jurisdiction of the cause for the purpose of supervising and enforcing the judgment, and for other orders relating thereto.
According to the facts alleged under oath in the application for a receiver filed in the above cause February 28, 1950, by the appellant, the defendants neglected and refused to comply with the above judgment and decree, announcing their intention to seek a dissolution of the Drainage District and the payment of their obligations in connection with such dissolution proceedings, but the defendants have failed and neglected to have the District dissolved. In the meantime, defendants A. M. Howard and J. M. Hughes have died and defendant J. O. Mack has sold the land owned by him in the District and moved from Livingston County, thereby becoming ineligible to remain a member of the Board of Supervisors. It was alleged that the only remaining member of the Board, Ray Pruitt, had no authority to act for the Board or for the District. No annual meetings of the Board have been held since April 27, 1933, for the election of officers and members of the Board. The landowners refused to attend the last two annual meetings called by the Board in 1934 and 1935; that the corporation has thus ceased to function for the purposes for which it was organized; that no tax has ever been collected to pay the warrants issued by the District for the preliminary costs and expenses incurred, and there is no money, and never has been any money in its treasury with which to pay its warrants therefor. The Secretary-Treasurer, F. L. Arthaud, has died and no successor has been elected or appointed, and that there are now no officers of the District except defendant Roy Pruitt, whose term of office as member of the Board of Supervisors has long since expired, and who is now a de facto officer only for the reason that his successor has not been elected.
In his application the appellant states that he has no remedy at law, and that he will suffer irreparable loss of the proceeds of his warrants unless a receiver is appointed to take charge of the functions and affairs of the Drainage District, and carry out the terms of the judgment and decree referred to "and to levy the preliminary tax" as decreed, and cause same to be collected. The prayer was that the court appoint a receiver of the District with directions to carry out the directions, order, judgments and decrees of the court referred to, and make report of his proceedings to the court.
Notice of the above application for the appointment of a receiver was served on defendant Roy Pruitt, the only remaining member of the Board of Supervisors. The record does not show any defense made by him to the application in the trial court, nor has he filed any brief in this appeal. The order of the trial court on the application was as follows: "Plaintiff's motion for appointment of a receiver is overruled and denied."
Appellant in his brief says: "In the case at bar, the appellant asks that the receiver be granted only a limited authority for a specific purpose, to levy and collect the tax as ordered and directed by the court in its judgment and decree. He is to have no authority to do anything else and would have no control over the business, affairs or functions of the Drainage District whatever." Again he says in his brief, "The court should, therefore, have appointed a receiver for the one purpose of levying and collecting this tax as requested in plaintiff's motion therefor."
Error is claimed because (1) the District is a defunct corporation; (2) that appellant has no other adequate remedy; (3) the defendant Pruitt has no authority to act to effectuate the judgment and decree; (4) there being no officers, Board or agents of the District with authority to carry out the judgment and decree, a receiver should be appointed to do so; (5) that although the District is a public corporation, being defunct and without officers to carry out the judgment and decree, the court had authority to appoint a receiver for that purpose.
Despite the conclusion of the appellant that the District is a defunct public corporation, it is admitted that it has never been dissolved. Two of the four members of the Board of Supervisors are deceased, and one has become ineligible but the fact remains the District has not been dissolved. It is also admitted that there have never been any funds or property of the organization and there are now none on hand to be administered by a receiver. The only funds which it is proposed that a receiver would receive and administer would be such as he might levy and collect from landowners to satisfy the judgment.
We know of no law in this state, nor has appellant cited any, which would authorize a receiver to take over any of the functions of a Board of Supervisors of an incorporated Drainage District. Such a district is a public corporation. Graves v. Little Tarkio Drainage District, 345 Mo. 557, 134 S.W.2d 70. The statutes of 1919, under which the Honey Creek Drainage District was incorporated, require election of supervisors, landowners within the district, by electors within the district, upon certain published notice, for limited terms of office, who shall take certain prescribed oaths of office and whose duties, among others prescribed, are to contract for the preliminary steps toward the drainage project, and to levy a tax not to exceed a maximum stated, to pay the costs of same. These, and other such duties, cannot be delegated to a receiver appointed by the court, unless such authority is given by the statutes creating such public organizations, and we find none.
The general rule is stated as follows: "While there are judicial utterances apparently to the contrary, it has been generally held that in the absence of special statutory authority the judiciary has no power to appoint a receiver or other agent to take over the duties of a municipality or improvement district in respect of the collection and distribution of taxes or special assessments". 45 Am.Jur. p. 74, Sec. 79.
Some of the reasons pointed out by that authority, with supporting citations, are that the power of taxation belongs to the Legislature, not to the courts; that there are provisions at law provided for such purposes; mere inability to employ a remedy at law would not empower a court of equity to appoint a receiver or other agent to collect assessments; assessments or levies made by a receiver might later be found invalid, in which the receiver would be without authority to act in the premises.
It is stated in 64 C.J.S., Municipal Corporations, § 2193, page 1033: "There is authority for the view that, in the absence of statutory authorization, courts do not have power to appoint receivers for local political subdivisions of the state".
In Depew v. Venice Drainage District, 158 La. 1099, 105 So. 78, the trial court, upon petition of a holder of improvement bonds issued by the drainage district, appointed a receiver to hold, manage and dispose of all the property and income of the corporation and to receive the taxes levied by it, and to distribute it under the supervision of the court to the persons entitled to receive the same. On appeal the court held that neither the provisions of the constitution of that state authorizing drainage districts and declaring them to be political subdivisions of the state, nor the statutes giving district courts "unlimited" jurisdiction in matters of receiverships of corporations, vested any power in such courts to appoint a receiver of a public corporation. The court said, 105 So. page 79: "If this court should hold that the judiciary may take over and control the agencies of government and substitute its judgment for the discretion vested in the legally constituted authorities, the legislative and executive branches of government might as well cease to function. The contemplation of such a monstrosity is repugnant to common sense."
Whatever legal or other remedies may be available to appellant, if any, it appears to us certain that the remedy he seeks in the present proceedings, namely the appointment of a receiver to take over a part of the statutory functions of the members of the Board of Supervisors of the Drainage District, such as to determine the amount of a necessary levy, to make the same, and to take steps to collect and disburse it, is not authorized by law.
The order of the court denying the application for a receiver is affirmed.
All concur.