Opinion
NOTE: Opinion filed at September Term, 1934, March 29, 1935; motion for rehearing filed; motion overruled at May Term, June 5, 1935.
Companion case reported on page 829 of this volume.
1. DRAINAGE DISTRICTS: Supplementary Levies. Supplementary levies to pay bonds issued by drainage districts for recleaning ditches are not void on the ground that no statute expressly authorized them.
The power to levy such assessments is not understood as the power to tax in the ordinary meaning of that term.
2. DRAINAGE DISTRICTS: Supplementary Levies: Constitutional Law. Supplementary levies by a drainage district to pay bonds issued for recleaning ditches are not violative of the due process clauses of the State and Federal Constitutions on the ground that Sections 5613 and 5614, Revised Statutes 1929, do not require such taxes to be apportioned against the land according to benefits derived and that defendant's land received no benefits.
The fact that benefits were conferred on defendant's land included within the district by the establishment of the district was completely determined in the original proceeding, establishing the district.
The county court had jurisdiction of the subject matter and the parties involved and the collateral attack in the subsequent proceeding is limited to the question of arbitrariness in the action of the county court.
Appeal from Pemiscot Circuit Court. — Hon. John E. Duncan, Trial Judge.
REVERSED AND REMANDED ( with directions).
Sharon J. Pate, Chas. Claflin Allen, Jr., and R.L. Ward for appellant.
(1) The Drainage Act provides that the cost of enlarging, cleaning out and removing obstructions from the ditches and doing new work shall be assessed upon all the lands in the district pro rata in proportion to, but not limited by, the benefits assessed for original construction. R.S. 1909, secs. 5613, 5614, as amended, Laws 1913, p. 279. (2) The statute authorizes the county court to provide better outlets and to provide for their payment in conjunction with other drainage districts. R.S. 1909, secs. 5578, 5613, 5628. (3) Neither the Federal nor State Constitutions prevent the Legislature from providing for assessments for doing additional work in excess of the original benefits for constructing the original ditches. Bheiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 159; Roberts v. Irrigation District, 289 U.S. 71, 77 L.Ed. 1038; State ex rel. v. Bates, 235 Mo. 262. (4) Sections 5613 and 5614, Revised Statutes 1909, are a legislative determination of benefits, and assessments made under those sections for recleaning the ditches are legislative assessments; due process of law does not require notice to or opportunity to be heard by the landowners as to whether or to what extent the property will be benefited before such assessments become final. Breiholz v. Pocahontas County, 257 U.S. 118, 66 L.Ed. 159; Roberts v. Irrigation Dist., 289 U.S. 71, 77 L.Ed. 1038; State ex rel. v. Bates, 235 Mo. 262; Rauch v. Himmelberger, 305 Mo. 70, 264 S.W. 658; Mudd v. Wehmeyer, 19 S.W.2d 891; Houck v. Little River Drainage Dist., 248 Mo. 373, 239 U.S. 254, 60 L.Ed. 266; Rutherford v. Hamilton, 97 Mo. 543; Heaman v. Allen, 156 Mo. 262; Prior v. Construction Co., 170 Mo. 439; Spencer v. Merchant, 125 U.S. 345, 31 L.Ed. 763; French v. Barber Asphalt Co., 181 U.S. 324, 45 L.Ed. 879; Louisville Nashville Railroad Co. v. Barber Asphalt Co., 197 U.S. 430, 49 L.Ed. 819. (5) In the case of legislative assessments such as involved in the case at bar, the property owners, when sued for such assessments, cannot be heard in such suit as to questions of whether or to what extent the property will be benefited, but are precluded by the legislative determination thereof. Mudd v. Wehmeyer, 19 S.W.2d 891. Authorities under point 4. (6) The general benefits which defendants' lands have received, in addition to the special benefits, as a result of the construction and enlargement of the drainage system are fully sufficient to sustain the assessment as a matter of constitutional law. Little River Drainage Dist. v. Railroad Co., 236 Mo. 94; In re Mingo Drain. Dist., 267 Mo. 611; Labaddie Bottoms Dist. v. Randall, 68 S.W.2d 871; Miller Lux v. Sacramento San Joaquin Drain. Dist., 256 U.S. 129, 65 L.Ed. 859. (7) The statute authorizes the issuance of additional bonds without further notice where necessary to complete the original construction and when necessary to complete the work of cleaning out, enlarging and constructing the new ditches called for by the petition and order of the county court providing for the recleaning. This act is valid. Laws 1913, p. 274; Sec. 5588, R.S. 1909; Secs. 5613, 5614 as amended, Laws 1913, p. 279; State ex rel. v. Young, 255 Mo. 627; State ex rel. v. Wilson, 216 Mo. 280; Houck v. Little River Drainage Dist., 248 Mo. 373; Cunningham Realty Co. v. Pemiscot Drainage Dist. No. 3, 226 Mo. App. 1, 40 S.W.2d 1086. (8) Defendants appeared in the county court in the proceedings had in 1918 and made their objections; after full hearing all their objections were determined adversely to them by the county court and this determination is binding upon them and they cannot now be heard after permitting the bonds to be issued and money spent and after paying their taxes for years, to say that the assessments are unconstitutional or otherwise invalid. State v. Taylor, 224 Mo. 455; State ex rel. v. Wilson, 215 Mo. 216; R.S. 1929, secs. 2915, 2920; State ex rel. v. Bates, 235 Mo. 262; Shepard v. Baron, 194 U.S. 553, 48 L.Ed. 115; Seattle v. Kelleher, 195 U.S. 351, 49 L.Ed. 232.
Von Mayes, Morrell DeReign, C.G. Shepard and McKay Peal for respondent.
(1) Special assessments must have for their basis a statute authorizing such assessments to be made and all proceedings leading up to the issuing of a special tax bill must be within the provisions of the statute. State ex rel. Douglas v. Redman, 194 S.W. 260. (2) Plaintiff's reliance for the enforcement of the taxes in question is based on legislative enactments subsequent to the organization of the drainage district in question, which said subsequent enactments materially change the rights of the parties holding the obligations of the district as well as the landowners of said district. Such legislative enactments insofar as they bear upon the rights of the parties interested in Drainage District Number Six are clearly retrospective in character within the prohibition of Constitution, Article II, Section 15, Article XII, Section 19. Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; Barton County v. Walser, 47 Mo. 200; Gast Realty Inv. Co. v. Schneider, 246 S.W. 117; State ex rel. Douglas v. Redman, 194 S.W. 260; State v. Curtiss, 4 S.W.2d 473; Smith v. Dirckx, 223 S.W. 104. (3) The general rule is well settled that a special assessment for the purpose of drainage can be levied only upon property benefited by the improvement. 19 C.J. 720. (4). It is well settled law that assessments levied against particular lands specially benefited by the construction of a drain must not be for an amount in excess of the benefits received by such land. 19 C.J. 731; State ex rel. v. Duncan, 68 S.W.2d 681; State ex rel. Sturdivant Bank v. Little River Drainage Dist., 68 S.W.2d 671; State ex rel. v. Thompson, 41 S.W.2d 841; Nashville v. Madison Land Park Co., 283 S.W. 532; Cribbs v. Benedict, 44 S.W. 707; Oliver v. Whittaker, 183 S.W. 201; Ward v. Babcock, 156 N.W. 1007; People v. Nyers, 124 Ill. 95. (5) New assessments cannot be made except on the basis of benefits. In making such new assessments, the previous assessments should be considered, and in no case should the aggregate amount of all assessments exceed the benefits to the lands assessed. 19 C.J. 749; Coleman v. 8-Mile Drainage Dist. No. Two, 152 S.W. 1004; Tidewater Co. v. Coster, 18 N.J. Eq. 520. (6) Even where the assessment is a legislative enactment, the property owner has the right to contest the validity of the assessment in a suit brought to enforce the assessment against his property. Embree v. Kansas City-Liberty Blvd. Road Dist., 257 Mo. 593, 166 S.W. 282; Barnes v. Pikey, 190 S.W. 883; Chapman v. Adams, 243 S.W. 410; State ex rel. v. Colbert, 201 S.W. 56; City of Salisbury v. Schools, 53 S.W.2d 269.
This is a companion case to State ex rel. Ross, Collector, etc., appellant, v. General American Life Insurance Co., respondent, 336 Mo. 829, 85 S.W.2d 68, and was argued and submitted therewith. The appeal is from a judgment of the Circuit Court of Pemiscot County, and involves delinquent drainage taxes, alleged to be due Drainage District No. 6. This district was duly organized and incorporated in 1907 under the so-called County Court Act.
The case differs very slightly from the companion case, supra, in the nature of the record basis upon which it rests. In the present proceeding respondents' complaint is confined to a proceeding for cleaning out and enlarging ditches and for making a new outlet ditch. The proceeding was under the recleaning statutes treated of in the opinion rendered in the said companion case. The orders attacked in this proceeding are the first assessment and three supplementary assessments made therein. The record discloses that similar proceedings were concurrently conducted in Drainage Districts Nos. 3, 6, 8, 9 and Elk Chute with a view to recleaning ditches and providing an additional outlet for all, such outlet to be actually constructed by Elk Chute District and the cost thereof to be shared by the other districts named. At that time the main outlet ditch of District No. 9 was also the outlet of main ditch of District No. 8, and would be insufficient to accommodate the flow of water from these two districts when they should be cleaned out and enlarged as contemplated. It appears also that District No. 8 paid part of the original cost of constructing the outlet drainage ditch of District No. 6 which is also the outlet for District No. 9; that the right-of-way for the new work to be done in the securing of an adequate outlet for Drainage Districts Nos. 6, 8 and 9 was provided in the plan of reclamation by said Elk Chute District, wherefore the county court found it was not necessary to appoint viewers to serve with the engineer to determine damages incident to the new outlet for all the districts, as such viewers were appointed in the Elk Chute proceeding wherein the entire damages would be assessed; that the Elk Chute District was willing to contract with Districts Nos. 6, 8 and 9 for the cost of said outlet, and the county court therefore ordered in the several cases, under the authority conferred by Section 5628, Revised Statutes 1909, the Elk Chute District to construct the outlet and pay the damages incident thereto and ordered that the other districts mentioned share such cost and damages as found and reported by said viewers appointed in Elk Chute District, separate committees being appointed, however, to act in conjunction with the engineer in each of the other proceedings in allocating the cost of the common ditch. The orders of the county court as made in Districts Nos. 6 and 8 were identical in form and substance and bore the same dates.
This district, No. 6, was organized by a petition filed February 5, 1907, and as established the district embraces an area of about sixteen miles in length by an average of nine miles in width. The benefits were assessed at $542,564.50. Bonds were sold to finance said work, all of which and the assessments made have been paid off and discharged in full. "The trouble now before the court is," say the respondents, "the result of subsequent proceedings which resulted in additional taxes being levied against the land within said district in the sum of $775,028.72 over and above the benefits" so assessed in the establishment of the district, and arising out of the subsequent recleaning proceeding mentioned above.
This subsequent proceeding was, as stated above, begun on May 6, 1918, pursuant to petition filed and due notice given, in like manner and form, and proceeded throughout in the same way and with a similar record, as that made in the companion case referred to above, except as to the number of supplementary assessments made in District No. 6 and the record showing made of the fact of actual hearing upon exceptions filed. Respondent Criddle filed his exceptions, as did certain other landowners. He now insists that he was not given a hearing thereon. The final order made June 17, 1918, in which the petition and remonstrances were heard, as well as the reports of the engineer, recited in the beginning: ". . . And the court having heard the evidence offered, and having seen and examined the report of said engineer filed herein as aforesaid, and having seen, heard and examined the objections and exceptions filed by E.T. Criddle and others, and having heard the evidence thereon, and having heard the argument of counsel, and being fully advised of and concerning the premises, doth find as follows. . . ." The benefits, in the sum of $794,515.94, were levied and assessed against the lands in the district originally assessed for the construction of the ditches and other improvements therein and ordered to be divided, and was divided, pro rata according to the original assessment of benefits against said lands. By order of July 22, 1918, the court attended to the details of proration and payment by installments and for the issuance of bonds for a total of $600,000. By order of April 28, 1922, the court determined it was necessary, in order to complete the work last aforesaid, to levy and assess an additional sum of $170,744.49 upon the lands in the district and to issue additional bonds in the amount of $250,000. Assessment was made and prorated and bonds issued and sold as in the first instance in the recleaning proceeding. On December 3, 1923, for like reason the court ordered an additional levy and tax of $35,232.99 and $30,000 bonds; on January 22, 1925, ordered an additional levy and tax of $27,616.04 and bonds in the amount of $25,000. With the proceeds of said four bond issues the work of enlarging, cleaning out, removing obstructions and providing outlets was completed.
The major portion of the first recleaning bond issue of $600,000 and the levy and assessment made at the same time, has been paid.
The need here is to consider but two points. One of them was decided in the case of General American Life Insurance Co., supra, but is approached by counsel in this case from a different point of view from that of counsel in the other case. The first of these points is "that the supplementary levies in question, being levies started in proceedings under said recleaning statutes, are void because said statutes contain no provision for the making of such levies; that additional levies cannot be made in the absence of a statute expressly authorizing them to be made." Cited in support are State ex rel. v. Redman, 270 Mo. 465, 194 S.W. 260; State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 27 S.W.2d l.c. 3; Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896; State ex rel. American Asphalt Roof Corp. v. Trimble, 44 S.W.2d 1103. These cases are not in point. They relate to a different power and form of taxation. The power to levy assessment upon the lands in question is not to be understood as a power to tax in the ordinary meaning of that term. [Egyptian Levee Co. v. Hardin, 27 Mo. 495; Columbia Bottom Levee Co. v. Meier, 39 Mo. 53, 57.] For the reason stated and for those contained in the opinion in said General American Life Insurance Company's case we rule this contention against the respondent.
The second point referred to above is predicated upon a plea of arbitrary action, violative of the property, equality and due process clauses of the Constitutions, State and Federal, which were under consideration in the companion case. The substance of this plea is that "none of said work (enlarging, recleaning, etc.) benefited the lands of respondent Criddle; that said Sections 5613 and 5614 (set out in the other case) violate said constitutional provisions, constituting an arbitrary abuse of power, because said sections require the tax provided for therein to be proportioned against the lands according to benefits accrued thereto from other work than that provided for in said sections, thereby not requiring said tax to be fairly and equitably apportioned against said lands according to the benefits to be derived from the new work, if any, and because said sections do not restrict the benefits issuing from said new work and prescribe no limitation on the amount of said tax."
The opinion in the companion case treats fully and disposes of all such matters as set out above, except possibly the question of equitable apportionment as viewed from respondents' standpoint. With respect to apportionment of benefits the respondents insist that the lands of Criddle actually received no benefit from the work for the payment of which the last three assessments and levies were made, and hence the taxes in suit, imposed therefor, were arbitrarily laid upon said land and are void. In the trial the respondents introduced Mr. Criddle and another who testified in effect that the Criddle lands were not benefited by the work done in the supplementary proceedings in question. To this evidence the appellant interposed appropriate objections without avail, and saved his exceptions. At the close of the trial the trial court, at the instance of the appellant, gave an instruction striking out that testimony.
We are of the opinion that the action of the trial court in eliminating such testimony was correct and proper. [Barnes v. Construction Co., 257 Mo. l.c. 196, 165 S.W. 723.] The fact that benefits were conferred on respondents' lands included within the borders of the drainage district, by the establishment of the district in the original proceeding, was completely determined thereby. [Mound City Land Stock Co. v. Miller, 170 Mo. 240, 70 S.W. 721, and cases cited.] It is shown by the county court records above that the respondents had a hearing on exceptions filed in the enlarging and recleaning proceeding. The subsequent supplementary assessments were of the same nature as those reviewed in the companion case, and are determined by the same principles of law. Nevertheless, we have examined and carefully considered all the authorities cited in respondents' brief. That the county court had jurisdiction of the subject matter and of the parties involved seems clear enough, and this collateral attack (State ex rel. Coleman v. Blair, 245 Mo. 680, 687, 151 S.W. 148) made upon said proceedings is limited to the question of arbitrariness in the action of said body — a question which has been fully considered in the opinion in the companion case, in which we held that the first assessment made in the original proceedings in which the district was established formed the basis for all the subsequent assessments.
For the reasons stated hereinabove, and those appearing in the opinion rendered in said companion case, the judgment in the case at bar is reversed and the cause remanded with directions to the circuit court to enter judgment upon the tax bills in suit for the taxes shown thereby, together with interest, penalties and costs, in the manner and form prescribed by law. All concur.