*1 Bartlett Com Trust District Eden The Garden pany 627. (2d) S. W. Appellants. et al., One, May 1932. Division *2 Culver, Phillip appellants. <& Voorhees (& respondent. Jones S. J. & G. C. Merrill and
Sasse *3 STURGIS, issued C. This is a bills suit tax based certain County, plaintiff, an incorporated drainage Chariton district of Missouri, against owned drainage district certain lands within said by the defendants. The petition first covers count of the 1927. The year taxes for the year 1926, and for the the second count Chari- suit was Court of August, commenced in 1928, in Circuit incorporated County, against ton an Company, the Bartlett Trust case bank, County, but where the change after a of venue to Carroll tried, gone the hands into having defendant bank failed deputy Cantley, the State Bank Commissioner, L. he and S. allegations, charge were, by appropriate an petition amended with joined parties and answer. made defendant and in the demurrer plaintiff incorporated district was 1913, pages 19.13, Missouri, about under the Act of Laws 232-267, organizing drainage relating by circuit courts districts (now seq.) Art. R. This Chap. 64, Secs. et accomplished functioning time, had been since that had large pur- measure, work of had that reclamation in issued bonds pose provisions act, under the suit were taxes here purpose system and for levied of maintenance of paying falling the'years interest installment of bonds due 1927.' petition proper is in form usual and and it is conceded necessary it states facts to constitute a cause of action under the *4 petition statutes mentioned. The defendant on the demurred to the grounds (1) plaintiff statute that the mentioned under which the incorporated was district and is violative of Section of clause) (the process NIY of Article due law of the amendments to States, plaintiff the Constitution of the United and no has (2) taxes; as a levy function and and collect that this against suit collect taxes and enforce the lien of the State the de fendant’s cannot be while of property maintained the the de bank fendant is in the hands of the for Commissioner of Finance ' '~1 liquidation. 1‘U',T.ywT| The demurrer was overruled and the defendants then filed a motion ground to abate or dismiss on second the suit the stated the de- which was murrer. also overruled. raising The. defendants then filed their answer these same issues
more, stating fully in detail facts more by and the than disclosed the petition. prayed in tbe amounts judgment plaintiff for trial resulted of severally tracts various in a lien the same for made and the or amount of form point No is made as to the
land described. as duly appealed. judgment. have The defendants without put in evidence bills were At trial the tax sued the then certain plaintiff, objection, making for and prima-facie case ¡Ithat the all including, to-wit, agreed upon, were pertinent facts by the required steps steps statutes, and required the the incorporate a district organize statutes, to taken to by circuit incorporated relating under districts the act organization petitioners in this case the were taken the courts District;” Drainage if said statutes of and that of The Garden Eden corporation, the valid valid, “then were the plaintiff which the tax, if law under tax sued is valid drainage district invalid, is no incorporated then there claims to that “the taxes also admitted and there is no tax.” The defendants legally of tax as stated were levied and that amount levied ‘ ’ ‘ ’ and all legally incorporated; if that petition, the district is being delinquent proper tax certificates returns of officers of the required by law; proper tax bills have been were and that made of of Chariton proper collector revenue issued certified to was the time the County, further admitted that at Missouri.” entered, Henry was district was Evernham incorporating decree petition; he of lands mentioned in the that executed owner $10,000; a loan of that de property of trust on the secure deed payment mortgage of was made the debt fault foreclosed, Company Trust properly and defendant Bartlett became land; at and is the owner of the of the land the sale owner of trust, Evernham nor the trustee in the deed nor Bart neither signed Company, incorporation lett Trust ever the articles of or filed any objection thereto. question presented urged by appellants all-important State known as the
this case is that statutes Circuit Court (now 1929) Art. 1 Chap. of 1913 District Act R. S. relating providing “organization to drains and levees by circuit courts” is districts violative Section XIY, Article Amendments the Federal provid- Constitution any ing deprive “Nor shall person life, that: state liberty, or ’’ law; process plaintiff without due as the ais crea- question ture the statutes in does exist and cannot function give it if life, as such laws then such laws except are void because *5 land, paramount plaintiff violative law the never any had legal levy and life or existence and cannot collect taxes. preliminary to constitutional question, As this we may grant any proposition discussion the first without extended by advanced ap-
559 plaintiff incorporated that if statutes under which is pellants, corpo void, legal are unconstitutional and then its claims a existence may be any other action power rate to maintain this or existence brought proceeding in question challenged called in this collateral by act by Plaintiff cannot payment it enforce of taxes it. levied as on which it corporation a unless there is a foundation de facto could, done, “a charter or properly if be There must be erected. general be purports law under which a as such it organized.” lawfully Shepard, 185 Irrigation District v. [Tulare 1, 773; Gibson, U. S. 46 268 394, 406, L. Ed. Park Co. v. Mo. 179;
S. seq.] W. C. J. et an law is no And unconstitutional law rights. Shelby County, no 118 U. confers [Norton 30 L. 178; Hughes, Ed. rel. v. 240 S. W. State ex agree taking We also that law authorize the of one’s no can by property affording person taxation or otherwise without right opposi and an opportunity place at some time and heard ‘‘ ’’ tion, is by process and no law of law constitutional when tested due right unless such that citizen awarded. We do not mean right against power govern has a to be or heard of the State its agencies levy mental public purposes, and collect taxes is an soAmreigntylodged legislative department, attribute of in the but that he purpose has to be as to whether the heard public and proper as to the tax apportionment lawfulness his property. Can the statutes stand this test? provided by act, Be- the first section of this Section majority acreage vised Statutes 1929: “The owners of contiguous any body lands, swamp, wet or lands or overflowed overflow, State, may situate in or more in this one counties form having purpose for the such lands and property other protected water, reclaimed and from the effects of sanitary agricultural or purposes, or con- when the same ducive to public health, public welfare, or or of convenience utility benefit, or otherwise, purpose may or for that sign make and articles of association which shall be stated: The district, years name of the and the number of con- the same is to tinue; boundary district; proposed drainage lines of the district, names of the owners of property other to- said gether with description of the lands other owned each; when prop- name of the owner of said lands other erty unknown, articles; this fact shall be set out said said articles shall further state owners real estate property within said district whose names are subscribed to said willing articles are obligate pay to and do themselves” to taxes necessary carry purpose organization; out the “and said articles of association shall prayer, praying contain a that the lands *6 drainage district a declared property described therein be
and provisions of this article.” under the shall association provides that such articles of
The statute then plead or first petition becomes and same the in the circuit court filed 439; 144 W. Steele, 240 ing- in the case. [Sibbett W. 183 S. District, 267 Mo. Mingo Drainage In re plain of position the signers occupy articles of association position of de occupy signing but notified the not tiffs and those pro is persons interested by publication to all Notice fendants. vided for. of is process of due law
The claim here made of a want pro 10745, Revised Statutes on the next Section based “Any property proposed owner real or other said vides: of estate objecting association, signed articles of district, who not have said shall, district, drainage organization incorporation to of said the and day cause to first of of court at which the before the the term why drainage district objections heard, objection file his objection organized incorporated. Such or ob and should not be jections articles the statements limited a denial shall be of manner, summary association, court in a and shall be heard of objections unnecessary delay, are over and in case all such without record, order, duly of entered ruled, the circuit court shall its duly public district a declare and decree said exceeding State, of a the time mentioned in said term signed If association filed. finds that the articles of the court incor property articles of association should not be set out said porated drainage district, proceedings, into a it shall dismiss said etc.” all are property claim is that while land and owners
Defendants’ by publication place hearing, of time of notified already owner, petitioned who property has not dis- agreed necessary taxes, may appear all pay trict at the hear- forming on the ing the circuit court objections “ivhy his district and file should incorporated,” yet objections are “limited to in the articles This, a statements of association.” denial it object claimed, so narrows and limits owner’s any hearing. practical denial of objec- amount to tions, claimed, which the court will hear it consist denial district, long how it (1) run; (2) name of will district; (3) boundary proposed lines of the the names of the owners description district and by each; of the land of that owned (4) unknown; of owners of certain lands are (5) the names obligated signing willing pay are those the taxes as- respective lands. And it is sessed their insisted that the ob- thereby precluded showing jecting from landowners are such vital proposed (1) within the boundaries facts as that lands, contiguous or overflowed body swamp, wet district are not signers of the articles overflow; (2) that the or lands embraced acreage of the lands majority not the owners district; (3) that the lands proposed within the boundaries *7 mentioned; (4) above objector of of character the are not lands the having the purpose for of that district is not formed the the water, sanitary or protected reclaimed the effects of and from drainage is not agricultural (5) the of the same purposes; and that necessary health, welfare, public a public or or to the convenience benefit, pur- utility corporation public or that is not for a the pose. among necessai’y These, said, things it which are not the to stated the articles of association.
It us places seems to that this a too narrow construction on the 10743, statutes above mentioned. is true that Section Revised 1929, provides petition Statutes that the of or articles association of proposed drainage the district shall a contain statement of the five enumerated; matters first say above but said do statutes not that such articles shall not contain other matters vital to the formation drainage of district, the or that a of statement therein such other necessary good is not to petition facts a or of constitute articles fact, plainly implies association. In said section of that the articles court, presented association to to the circuit constitutes pleading case, the first in the shall all state the facts which the drainage district; statute essential in order form makes a provides, to-wit, (1) this end statute that the lands within the proposed contiguous body swamp, boundaries of the district are a of lands, overflow; (2) wet or overflowed or lands that’the signers of majority acreage the articles are the of owners district; the lands within proposed embraced the boundaries (3) lands of that the the district are lands of the character above mentioned; (4) having purpose that district is for the formed protected the lands reclaimed and from water, the effects of sanitary agricultural purposes; (5) drainage that the necessary public health, same to the welfare, convenience or or a public benefit, utility and that public is for a purpose. might Some of these matters implied be taken as by law specific without a averment.
Now it will be seen that Section 10745, supra, giving owner, has signed who articles of association, the appear objections and contest “why the matter such district shall not incorporated,’' limits such objections a denial of the statements in the association, articles of which, seen, as we have covers all the vital facts made essential to of a formation district. In words, other articles 562 forth, though pleading first must set which constitute association forming necessary action for to a cause of basic facts
informally, the con- respect would itself this district, and failure that provides objection. the statute To this end ground stitute "may pleading, association, the first which constitutes articles of objections shall pleading,” and that as be amended "summary in a manner.” be heard question were valid
Defendants concede that the statutes the same prior constitutional amendment as v. Little here, this court so held Houck attack made 739, Drainage District, 248 154 S. W. affirmed River v. Little River Supreme in Houck Court United States claimed 266. But it is District, 239 U. S. L. Ed. changed the amendment vitally act was so made change inapplicable. make as to that decision is in of 1913 to have effect amendment which is claimed filing hearing in the supra, providing Section for the objections "why circuit court of district should *8 ‘‘ ’’ organized Such incorporated, be and consists of these words: objection objections of statements or shall be limited to a denial the of the place in the of words take the articles association.” These by thereof, why land, any part "or be words or will not benefited proposed drainage district, and embraced in and liable to made drainage purposes,” It will taxation for which were stricken out. may yet present objecting thus be that while the landowner seen objections why not district should and in be right of corporated, the amendment the landowner to ob omits ject land, any thereof, by part that "his or will be benefited not be)' proposed district, (should not in and embraced draining made to taxation the same.” This amendment, liable therefore, together, these two arc read when sections and construed objecting any does not from an landowner make take objection being organized incorporated; valid to the district but most not should not be in at that Ms land is benefited and objecting or taxed. Whether landowner is af cluded or question stage at a opportunity an to be heard on this later forded proceeding of the will be considered later. might however, say, par- here that the
We whether by system drainage ticular tract of is benefited does not land particular altogether depend swamp whether the on land is itself land, What subject is termed hill overflow. when con- land or may by swamp greatly be land, surrounded tiguous to or benefited producing swamps, ingress or the means of by draining such disease thereby improved such lands and benefits egress to and from rendering facilitating possible ben- or highly be conferred
563 public improvements. Mingo eficial Drainage District, re 267 [In 268, 284, 611; Mo. 183 Drainage S. W. River Little District v. Rail- 236 road, Mo. W. 330.] also It is true since of 1913 amendment act as it now exists has been held constitutional as the identical objections urged. now Elliott, (2d) Co. v. Trust Fed. [Bartlett The court in determining' held case that its constitu- tionality the merely whole act must be considered and not one or two sections; that an police such is power State, exercise of the given, and then added: Notice is opportunity “with the afforded for parties objections denying interested to file allegation petition. pleading The manner issues to be determined decidedly the court is .' . All informal. . the facts which the Legislature organize deems to essential in order to denied, proof in support hearing offered of such A defenses. party-has allege at which an opportunity interested prove every fact, the non-existence of each of which existence necessary district, shall be amply every to establish a possible meets requirement. constitutional there or issue is whether not a drainage corporation be formed, shall and it is inconceivable that in proceeding any property privilege owner would be denied asserting any objection pertinent corpora- to the formation of a purpose carrying public tion for work such as that con- Drainage Mingo . . . re templated District, this statute. [In here, there, also true as it’was that it 268.]” predecessor claimed that this defendant case title sought objection present any ever to the incorporation privilege of Eden District Garden denied the stating proving a defense. upheld noted, constitutionality
As the above case this court *9 Mingo Drainage District, supra, although In this act in re it is objection specific constitutionality that to act claimed the the the urged A reading case, now was not there considered.' of that how- Judge Farris, ever, opinion, who wrote discloses the thor- oughly and him ob- familiar with this act had the before jectionable limiting objections a landowner’s clause to a mere denial required statements to be made the association the articles of hearing, circuit court for the court presented to the and construed permit objections to raised and considered did act to be and the objections unlawfully such as that “there are included there consider proposed certain limits of the district lands are within the hilly,” but.high the articles of were and and that association swamp legally signed, etc. Railroad, 94, 108, v. 236 Mo. District In Little River objections by “If no were made the court said: S. W. the upon petitioners to sat- landowners, would still be incumbent the it ’' isfy proposed improvement, practicability court as to the of the the being etc., proposed this true as to to be drained is the swamp land or land to overflow. not, stat- therefore, uphold contention that the
We do defendants’ court, which question power duty limit circuit utes in the forming governmental public agency the is made this necessarily pre- inquire into ascertain question, to the facts Elliott, incorporation; its in Bartlett Trust Co. and as held cedent requires for opportunity “with the afforded supra, the statute notice objections denying allegation the parties the interested to file ’’ petition. con equally Another view of is fatal to this matter defendants’ ones statutory provisions we have discussed are the tentions. The incorporation of the providing for the tentative formation and drain age which, finally formed, power the when is clothed with district creating corporate entity, of taxation. After the decree entered selecting supervisors and officers the same must surveys engineering work, plan causing and a for to be made levying power adopted. reclamation taxes vested must organized. corporate supervisors board of after Section Revised Statutes This board is authorized exceeding fifty per tax cents on levy to at once a uniform of not acre preliminary purpose paying for lands of the district surveys, leading up forming same, making etc., costs of reclamation, benefits adoption plan for assessment of empowered damages to the time the board is expenses up and other pay improve cost provide funds “to the total of works exceeding fifty taxes, than the tax of not cents ments.” These costs, assessed, through a preliminary are to be board per for acre reporting it, on appointed by circuit court and commissioners hearing court, A damages. is then had the basis of benefits and commissioners, any report of the at which notice, on the after due objections thereon; may thereto and be heard party file interested report or to assessment is, exceptions file to said “he ’’ question damages. Certainly the act affords benefits or for either stage proceedings opportunity an at this the landowner (less damages, any) if any, if are to be what, benefits heard as to pay land, and this basis taxes the costs assessed together taxes, with maintenance improvements, works now pur The taxes levied. are assessed and Presumably, fifty the taxes of cents so levied. been pose and have against these long lands have costs since preliminary per acre *10 controversy. not here least are paid, been or at
565 generally It is held that if landowner oppor- is afforded the right tunity any stage proceedings to be heard at before levied, the tax compliance process that is a with sufficient the due judgment of law clause of the Constitution. final It of the hearing circuit court on report of the of the commissioners to exceptions thereto, assess benefits and and the landowners' damages, rights that affects defendants’ levy and resulted in the of the taxes question. [Hodge here 49 County, 276, v. 196 U. Muscatine 477; L. Elliott, Ed. Bartlett (2d) 700, 704, Trust Co. v. Fed.
cases cited.] objections
As noted, we have defendants’ to the constitutionali ty present drainage goes only relating act provisions to the incorporation formation and district. Yet it is the settled law that the mere incorporation formation and of a district, power with purposes, to tax for certain and the inclusion therein, defendant’s land does not of itself deprive and without more such landowner of his property, much less does so without due process of law. corporation merely The formation of such creates legal entity power with to tax. power is the exercise of this taking constitutes the property process and violates the due of law clause, if at all. “The bare creation is, after all, simply the creation of a district within which certain taxes levied, designated agencies certain specific certain purposes. To this extent a parity any district is on a with other taxing district. . . . The mere fact that the lands of the relators in incorporated Albany this ease been Drainage into the have ipso not, any District does facto, manner rights affect relators’ premises, long so as their has neither been benefited nor damaged.” Dawson, 490, ex rel. Manion v. Mo. [State 225 S. W. Whether it is or not is to be determined the later proceedings.
And as Drainage said Little Railroad, River District v. 236 Mo. 94, 107, 139 330, S. W. apparent “It that there is a radical dif- ference in the inquiry character of ground under the first objection, namely, why the district should not incorporated, objector’s why second ground, part land or thereof will be benefited proposed drainage, and should not be em- braced in the district. . . . provide The law does for full and complete information and ‘plan notice of the drainage’ before benefits, gives assessment of every right landowner the to be heard and to a trial charge in court before a can placed land, and when accorded such it cannot be main- ’’ tained that he is day denied his in court. And so this court held in In District; re Buschling Ackley, 270 S. W. why the reason no
566
appeal organizing judgment would lie from the of the circuit court incorporating adjudicate a and any district is that it does not rights. organ- incorporation simply one’s “The district entity izes an with to proceed which to further effect reclamation to be accomplished.” “preliminary, informal, hereafter It is tenta- tive, and conditional.” Drainage 183 Mingo District, 268, 278,
It held In re 267 is in Mo. incorporated, “any S. W. is that after the district individual signed not), owning property (whether such therein he the articles or covering itself, may exceptions, the district even file individual apparently any every possible phase accruing damage to exceptor.” or interests is power also held that the of a with formation hearing any requires tax notice contemplate to does not no to thereby. one, though River property is liable to be taxed [Little Railroad, 94, 109, v. 236 139 S. W. District 330.] question incorporation to As levied after its to taxes here by pay payment district in of the reclamation work bonds issued maintaining was af- system, and for the landowner make, opportunity any objections he chose forded an to be to heard raised, subject objection and such to the constitutional taxes not given levy authority even if we such district to should hold fifty all per at more a tax of cents acre on land once without be due pay preliminary to costs invalid as violative the district tax vital process clause of the Federal Constitution. The is so functioning its district to the continued existence destroys Eden too invalidity itself. The Garden of is the district perish in this manner. ancient an institution taxing cor the creation point also made that while is Legislature legislative, it with certain boundaries poration hearing, may fix of the district without notice or the boundaries self delegates power to Legislature some court or board if yet way, of lands to be benefited a certain taxing district out create the power delegates body the to such subordinate drainage, and as including so therein such lands as are fix boundaries formed, so all the land included district is benefited, and when body ipso taxed, then such subordinate shall in the district facto hearing to be included land therein to the owners must afford benefited; otherwise, such taxation so lands would be whether sup proposition This process. due finds without taking property U. S. Bradley, v. Irrigation District port in Fallbrook placed construction on the however, Such, L. 369. Ed. merely taxed Lands are not this court. statutes will the lands be bene Whether district. in the included because being finding as to in fact on the depends fited or not and taxed no damages may be tbe benefits or there may exceed benefited. The hearing. re Drain found. is to be determined on benefits This [In 192 W. Buschling Ackley, 270 Mo. age District; ques statutes argue along this line that under the The defendants placed overflow cannot swamp or tion, hill lands not thereby. pri While the even if benefited swamp and forming to drain district is mary purpose of *12 yet agricultural purposes, the statute includes for overflow land health, “public takes into consideration “sanitary purposes” and thus bene may welfare,” well include convenience 112, Railroad, Mo. District v. River fited. [Little 268, 284, 267 Mo. Drainage District, Mingo 330; In re 139 S. W. only remotely, all, if however, at question, 183 W. This 611.] We, question. act in constitutionality of the affects the drainage act. constitutionality of this therefore, again confirm the mo defendants’ in the ease is raised The hav account of the defendant action on tion to abate dismiss liqui of Finance for of the Commissioner ing placed in the hands been provisions of Section Re invoke the The defendants dation. required notice to be provides Statutes vised of property, assets and place all its posted “shall be sufficient to commissioner, and shall possession of nature, in the whatever in in whatever whether law or any proceedings operate a bar to bank, private bank, trust com against any incorporated equity, begun, any such action is then all if assets, their pany, its or held, naught summarily dismissed and for proceedings such shall cause, being filed in such commissioner of the upon the certificate bank, of possession the assets of showing has taken that he proceedings in which such company, and court banker, or trust jurisdiction pro authority, or power, shall have no pending are any such cause.” ceed further August 15, 1928, Chariton commenced on suit present was Oc- was not filed till to abate or dismiss motion
County, while the County. Finance change Carroll of venue to 1929, after tober, the certificate in this cause any time file not at Commissioner did suit abated or he to have the in case desired required by the statute paid Finance no attention fact, the Commissioner In dismissed. suggestion that the Commissioner plaintiff, until the on ease to the making petition party, amended an interested Finance was gave the mat- Commissioner Apparently party him a defendant. attorney for bank allow the than to attention further ter no along bank. with the represent him requir- statutory provision by this court that has held been or abated “is to be dismissed bank ing an insolvent a suit prevent inconvenience commissioner for of the the benefit orderly embarrassment to him the administration and settlement any good affairs of insolvent banks and we unable to see provision he as he why reason not waive the benefits of directory provision undertook to do. We think the for dismissal is McCallister, mandatory.” and not [Bartlett 289 S. W. presented show-
The motion to was on the mere abate the court charge ing that the bank failed was had Commissioner nearly property. charge years. been its He had then so three asking dispose prop- Pie was not time in which to of the further erty offering pay lien of the taxes. He was not given if time, taxes out of funds of bank if indeed the insolvent he would be to do so. We need not decide whether or allowed should, application trial court in this kind a case stay proceedings till Finance, Commissioner continue the case or charge as will afford bank’s such time Commissioner opportunity to ascertain the amount assets assets time and advantage arrange a sale for the liabilities and best of the creditors. That was not what asked. They merely constituted a lien on the land.
These taxes did *13 against personal a- the defendant bank and constitute indebtedness personal judgment. in a thereon could not result suit Suits though proceedings rem, nature of taxes of this character are against against judgment land the owner of the land. constrained, against therefore, are to hold the owner. We and not against claims these are not “such taxes seq.., Re- provisions as fall under the Section et banker” required thereby presented 1929, and are to be Statutes vised specified. within the time Commissioner for allowance limited there reject, Commissioner can allow or They are not claims rejected, by suit if are claims which, if or established allowed pro be, paid, bank to if need against insolvent rata liabilities prop- R. Such taxes cannot S. of its assets. out [Sec. paid preferred as claims as that also would re- erly be allowed and general assets of made the insolvent. quire payment to be out payment liens land law force Such taxes way lien. than foreclosure be enforced cannot Certainly against these lands cannot enforced the lien of the State filing the Commissioner and cannot be a claim with through same as day filing The last destroyed to do so. by mere failure lost or Commissioner June it is doubtful claims with the or in 1927 were then levied condition taxes for whether against the defendants. point also We rule filed as claim. to be Ferguson Hyde, is affirmed. trial court judgment of the GC., concur. adopted isC., foregoing opinion Sturgis,
PER CURIAM: The concur. judges All of the opinion of the court. Henley L. Hall, S. Mil Stacy, G. L. Appellant, W. J. Craig, J. O. Reynolds, Douglas, W. F. E. J. ler, J. W. Shoemaker, (2d) 104. W. Hinton. and William REYNOLDS May One, 1932. Division