Harrison & Mercer County Drainage District v. Trail Creek TownshipHarrison & Mercer County Drainage District v. Trail Creek Township
2. ———: ———: Municipal Township: Political Subdivision. The Constitution (Sec. 9, Art. 6) authorized the General Assembly, by a general law, to provide for township organization, and the general statute (Chap. 121, R. S. 1919), enacted in pursuance thereto, plainly contemplates the organization
3. DRAINAGE TAX: Assessed against Public Roads: Liability of Township. A drainage district organized under the Circuit Court Drainage District Act of 1913 (
4. ———: ———: ———: Positive Right: Inadequate Statutory Remedy: Supplied by Common Law. The statute relating to the organization of a drainage district in the circuit court provides (
5. ———: ———: Whether Chargeable to County or Township. Benefits assessed against public roads or highways by a drainage district organized under the Circuit Court Drainage District Act should be paid by the political subdivision chargeable by law with the maintenance, repair and upkeep of the roads. If there is township organization in the county, it is the duty of the organized township charged with the duty to maintain the roads against which the benefit is assessed, to pay the assessment, and not the duty of the county. If the district is organized under the County Court Drainage Act, it is the duty of the county to pay the assessment, for that act expressly requires that the assessment “be apportioned to the county.”
6. TOWNSHIP ORGANIZATION: Demurrer to Petition: Admission. A demurrer by the defendant township to the petition alleging that the Township Organization Law is in force in the county is in effect an admission that the county has adopted township organization.
7. TOWNSHIP: Duty to Repair Roads: Drainage Tax. Under the provisions of the Constitution and statutes relating to township organization, it is the duty of the respective organized townships, and not the duty of
Corpus Juris-Cyc. References: Constitutional Law, 12 C. J., Section 55, p. 708, n. 38. Courts, 15 C. J., Section 511, p. 1080, n. 55. Drains, 19 C. J., Section 212, p. 717, n. 64; Section 214, p. 718, n. 73; Section 275, p. 753, n. 61. Pleading, 31 Cyc., p. 333, n. 76.
Appeal from Harrison Circuit Court.—Hon. L. B. Woods, Judge.
REVERSED AND REMANDED.
Randall Wilson for appellant.
(1)
A. G. Knight and Garland Wilson for respondent.
(1) Where the tax assessed is to be collected by the enforcement of a lien against the property and such a remedy is inapplicable on account of the nature of the property, there is no right given against the property itself. City of Clinton to use v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 561; Drainage Dist. v. Bates County, 269 Mo. 78. (2) In order for any right to be given for the collection of a drainage tax from any municipal subdivision of the State by reason of the benefit accruing to public property by a suit to secure a general judgment, there must be a clear provision to that effect. City of Clinton to use v. Henry County, 115 Mo. 557; St. Louis v. Brown, 155 Mo. 561; Drainage Dist. v. Bates County, 269 Mo. 78. (3) There is nothing in the drainage law creating a right against a township on account of benefits assessed against public roads therein. (4) If there is any liability by reason of benefits assessed against public roads by drainage districts, the liability is on the part of the county, not the separate township therein. Drainage District v. Bates County, 269 Mo. 78; Drainage District v. Andrew County, 278 S. W. 387.
OPINION
SEDDON, C.—This cause comes to this court on appeal upon the pleadings only. The petition alleges:
“Plaintiff states that at all the dates hereinafter mentioned, the Harrison & Mercer County Drainage District was, and now is, a corporation duly organized as provided by the Laws of the State of Missouri for 1913, and now known as Article 1, Chapter 28, of the Revised Statutes of the State of Missouri for 1919; that after its said organization, its board of supervisors levied a tax upon all the land within its district for the benefits accruing thereto, and found
necessary to pay the cost of the completion of its proposed works and improvements as shown in its plan of reclamation, and in carrying out the object of said district organization. “Plaintiff further states that the defendant, Trail Creek Township, is a municipal township, number sixty-four (64), in Range twenty-six (26), in Harrison County, Missouri.
“That plaintiff‘s board of supervisors for the year 1920, determined, ordered and levied an annual installment tax, as is shown by the delinquent drainage tax bill hereto attached, against defendant, and its said public highways and roadways, to-wit: The sum of $369.26, which said amount became due and payable on the first day of November, 1920.
“Plaintiff further states that Chapter 119 of the Revised Statutes of the State of Missouri for 1909 was at all the dates mentioned, and now is in force in Harrison and Mercer counties, the place where plaintiff, said drainage district, is organized and located, and said Trail Creek Township aforesaid is liable for the benefits assessed and levied against the public highways and roadways hereinafter described, within said municipal township, in plaintiff‘s plan of reclamation, according to the increased physical efficiency and decreased maintenance cost of the roadways by reason of the protection, said public highways and roadways derive from the proposed work and improvements of plaintiff‘s district; which said highways and roadways are described as follows, to-wit: [Here follows a definite and specific description of said highways and roadways.]
“That the secretary of the board of supervisors of plaintiff‘s said district extended its drainage tax under the provisions of said act on a tax book for the township in which defendant‘s highways and roadways are located, and that said drainage tax book was certified and delivered to the township collector of said township, as is provided by said article aforesaid; that said township collector had authority to collect said tax aforesaid so levied and extended against defendant‘s said highways and roadways, and that said collector made diligent effort to collect the same, but the defendant failed and refused to pay said tax, or any part thereof, so levied and extended as aforesaid against highways and roadways aforesaid.
“That said township collector thereafter made due return of the said tax book, and certified the said tax against defendant‘s said highways and roadways aforesaid as delinquent.
“That thereafter the secretary of plaintiff‘s board of supervisors certified said delinquent drainage tax to the County Treasurer and ex-officio Collector of Harrison County, Missouri, for collection, as is provided for the collection of drainage tax in counties not under the provisions of Chapter 119, Revised Statutes of Missouri for 1919.
“Plaintiff further states that said ex-officio Collector and Treasurer of Harrison County, Missouri, has made due and diligent effort to collect said delinquent drainage tax due against defendant‘s highways and roadways aforesaid, but that the defendant has failed and refused to pay the same, and the same remains due and unpaid and is now delinquent.
“Plaintiff further states that it bases its said cause of action in this case upon the delinquent tax bill hereto attached, marked ‘Exhibit A’ and made a part hereof, certified by the County Treasurer and ex-officio Collector of Harrison County, Missouri, as is provided by Article 1, Chapter 28, of the Revised Statutes of the State of Missouri for 1919.
“Plaintiff further states that by reason of the defendant permitting said drainage tax aforesaid to become delinquent and remain unpaid after the 31st day of December, 1920, the same being the one year in which said tax was levied, the same bears two per cent penalty per month on the amount of said tax from the 31st day of December, 1920, until paid; that there is now due as penalty of said drainage tax against said real estate of the defendant, the sum of $125.55.
“Wherefore, plaintiff prays the court that it may have judgment against defendant for the sum of $369.26, the amount of said delinquent drainage tax, so levied, assessed and extended as aforesaid against the defendant‘s said highways and roadways as aforesaid, and for the further sum of $125.55 penalty thereon since the 31st day of December, 1920, and that plaintiff‘s lien against said highways and roadways for said sums, together with the cost and expense in collecting same, including a reasonable attorney fee, to be fixed by the court, and taxed as costs in this action, as is provided by Article 1, Chapter 28, of the Revised Statutes of the State of Missouri for 1919, aforesaid, may be adjudged, declared and enforced against said defendant aforesaid, and for such other and further orders, as to the court may seem just and proper.”
Defendant (respondent here) filed the following demurrer to the petition:
“Comes now the defendant in the above entitled cause and demurs to the petition of the plaintiff herein, and for grounds of demurrer states:
“1st. That the petition of the plaintiff herein fails to state facts sufficient to constitute any cause of action against the defendant.
“2nd. That the petition on its face shows that it is an attempt by the Harrison & Mercer County Drainage District to collect a drainage tax and benefit assessments under the drainage law against the defendant, Trail Creek Township, a municipal township, on account of roads and highways in said township, alleged to be affected
and benefited by such drainage district, when under the law the said defendant is not the owner or legal custodian in any manner of the public highways in said township; that the same under the law, if subject of taxation, must be assessed and taxed against the county and not the various townships of said county. “3rd. That there is no provision of law whereby townships, such as defendant, are authorized or enabled to collect a drainage tax or any source of revenue provided by law by which such taxes may be met, and there is no contemplation of law, either expressed or implied, by which said townships are to be assessed benefit assessments or taxed for drainage purposes.
“4th. That by the express provisions and by clear implication any taxes, benefits or assessments for drainage purposes against the public highways of the State, must be and are authorized to be assessed against the various counties, and such benefits must be assessed and borne by the various counties of the State, and not by the townships thereof.
“5th. That there is no provision of law for the assessment or collection of benefits or assessments or taxes by the various townships, or enabling such townships to provide in a lawful manner for the meeting and defraying of any such tax assessment or benefit.
“6th. That under the law the plaintiff had no power or authority to levy or assess any tax against the public roads in the defendant township for drainage or other purposes.
“Wherefore, defendant prays judgment of the court that it be discharged and for naught held, and that it recover its costs in this behalf laid out and expended.”
The circuit court sustained the demurrer to the petition, and, plaintiff (appellant here) refusing to plead further, the circuit court rendered judgment dismissing the petition and assessing the costs of suit against plaintiff. Plaintiff filed timely motions in arrest of judgment and for rehearing, which motions were overruled by the circuit court, whereupon plaintiff was allowed an appeal to this court. We take jurisdiction of the appeal under Section 12, Article 6, of our State Constitution, because the defendant organized township is a political subdivision of the State.
I. While the question of our jurisdiction herein is not raised by the parties to this action, and although our jurisdiction is apparently conceded by the parties hereto, nevertheless, in retaining jurisdiction of this appeal upon the sole ground that defendant, Trail Creek Township, is a political subdivision of the State, we take occasion to say that we are mindful of the language used and adopted by this court, en banc, in Wilson v. King‘s Lake Drainage & Levee District, 237 Mo. l. c. 48, wherein it
But it seems obvious to us that the learned writer of the opinion in that case, in using the above quoted language, did not have in mind political (i. e., governmental) townships as organized and created in a number of the counties of the State under the Township Organization Statute. [Chap. 121, R. S. 1919.] The Township Organization Statute aforesaid was enacted by the General Assembly of the State pursuant to the authority granted by Section 8, Article 9, of the Constitution adopted by vote of the people of this State on October 30, 1875 (in which same Constitution is included Section 12, Article 6, aforementioned), as follows: “The General Assembly may provide, by general law, for township organization, under which any county may organize whenever a majority of the legal voters of such county, voting upon that proposition, at any general election, shall so determine; and whenever any county shall adopt township organization, so much of this Constitution as provides for the management of county affairs, and the assessment and collection of the revenue by county officers, in conflict with such general law for township organization, may be dispensed with, and the business of said county, and the local concerns of the several townships therein, may be transacted in such manner as may be prescribed by law. . . .”
The general Township Organization Law aforesaid, enacted by the General Assembly pursuant to the aforesaid constitutional authority, plainly contemplates the organization or creation of the township as a separate and distinct unit of government, or, in other words, as a political (i. e., governmental) subdivision of the State. The Township Organization Law provides for a distinct and separate government of the township, as a unit of government, in those counties of the State voting to adopt the township organization plan. It provides for the election of certain township officers and prescribes their governmental duties, powers and authority. It provides for the assessment, levy and collection of the revenue in such organized townships, not only to defray the usual and ordinary township governmental charges and expenses, but also for road and bridge uses and purposes. In other words, the general township organization law, and the constitutional authority under which such general law was enacted, in our judgment
II. It may be stated at the outset that, while the petition prays the adjudgment and enforcement of a lien against the public roads and highways herein involved, nevertheless it seems to be agreed and conceded by the parties hereto that such a lien cannot be enforced (by reason of public policy and the rulings and decisions of this court) against public property, including public roads and highways. Both parties agree that this appeal presents but a single question of law, namely, Can plaintiff drainage district levy a benefit assessment against the public roads and highways located within the corporate boundaries of defendant organized township and maintain a suit or action for the collection of such benefit assessment, and procure a general judgment therein, against the defendant organized township? The solution of this question must be sought and found in the applicable statutes of this State.
It is alleged in the petition, and admitted by the demurrer, that plaintiff and appellant is a drainage district organized under proceedings in the circuit court under and by virtue of Article 1, Chapter 28,
Both parties to this action bottom their respective contentions upon the rulings of this division of this court announced in Drainage District v. Bates County, 269 Mo. 78, and Platte River Drainage District v. Andrew County, 278 S. W. 387. Each party claims that our holdings in the two cited cases are determinative of its contention herein and of this appeal. Plaintiff drainage district (appellant), on the one hand, urges that
Defendant organized township, on the other hand, urges that, in order to enforce the collection of drainage assessments levied against
In Drainage District v. Bates County, 269 Mo. 78, the proceedings leading to the incorporation of the plaintiff drainage district, and the assessment of benefits accruing to the private lands and public roads and highways situate therein, were had in the County Court of Bates County, under and by virtue of what is commonly called the County Court Drainage Law. [Art. 4, chap. 41, R. S. 1909, and amendments thereto.] Section 5591, Revised Statutes 1909, which was then a part of the so-called County Court Drainage Law, provided: “When any ditch established under the provisions of this article (i. e., Art. 4, chap. 41, R. S. 1909) drains, either in whole or in part, or benefits any public or corporate road or railroad, the viewers shall apportion to the county, if a county or State or free turnpike road, or if a corporate road or railroad, to the company owning, operating or controlling the same, the same proportion of the cost of location and construction of the improvement in proportion to the benefits received as to private individuals.” (Italics ours.) Construing, therefore, the precise statute involved in the Bates County case, this division of this court therein ruled, in substance and effect, that the so-called County Court Drainage Law therein involved did not provide that public roads and highways shall be assessed for benefits accruing thereto by reason of the drainage improvements and reclamation plan, but, on the other hand, specifically provided that the benefits accruing to the public roads and highways shall be apportioned to the county in which such public roads are situate; and, furthermore, that inasmuch as the so-called County Court Drainage Law failed to provide an adequate and appropriate remedy for the right thereby created (i. e., the apportionment to the county of the benefits accruing to the public roads and highways situate in such
Unlike the plaintiff drainage district in the Bates County case, supra, however, the plaintiff drainage district in the instant case was organized, and the benefit assessments herein in question were levied, under what is commonly called the Circuit Court Drainage Law (Art. 1, chap. 28, R. S. 1919). The latter law (
It is therefore clearly apparent, we think, that the Legislature, in the enactment of the Circuit Court Drainage Law (Art. 1, chap. 28, R. S. 1919), created a positive right, in favor of the drainage district, to the assessment of accruing benefits against the public roads and highways located within the boundaries of the drainage district. The next question before us is whether the Legislature provided an adequate and appropriate remedy for the effective enforcement of the positive right so created. By
As we have heretofore remarked, it is apparently conceded by the parties hereto that the public roads and highways are not subject to an enforceable lien for the payment of benefit assessments, and cannot be sold under either general or special execution, or order of sale, and thereby severed from the general system of public roads and highways, because contrary to public policy, and such seems to be the trend of our own judicial announcements. But, nevertheless, we have also announced, in no uncertain language, that it is within the power of the Legislature to say, and to provide, that public property may be benefited by public improvements and accordingly assessed or charged with its proportionate share of the benefits accruing from
The Legislature has so spoken in the Circuit Court Drainage Law, for by
In Platte River Drainage District v. Andrew County, 278 S. W. 387, 388, the plaintiff drainage district (as in the instant case) was organized, and the benefit assessments were levied, under the Circuit Court Drainage Law (
Andrew County, however (unlike Harrison County, in which is situate the defendant herein, Trail Creek Township), at least at the time of the rendition of our opinion in the Andrew County case, had not adopted township organization, as provided in Chapter 121, Revised Statutes 1919. Andrew County not having adopted township organization by vote of the people of the county as provided in Article 1, Chapter 121, Revised Statutes 1919 (at least, the adoption of township organization by Andrew County is not disclosed by our opinion in the Andrew County case, supra), we ruled in the Andrew County case, following our ruling in the Bates County case, that Andrew County was liable for the payment, out of its general treasury, of the benefits assessed against the public roads and highways of said county, and the reason of our ruling was planted and bottomed upon the ground, as pointedly and tersely stated by Judge GRAVES in said opinion, that “benefits should be paid for by the party whose duty it is to keep up the public improvement.” In that case, Andrew County not having adopted township organization, the duty of keeping up the public roads and highways situate within
But it is said by defendant organized township herein that Bates County had adopted, and was under, township organization at the time of our ruling and decision in the Bates County case, supra, and that we ruled therein that Bates County, as the unit of government, was liable for the benefits accruing to the public roads and highways situate within that county. But, as we have pointed out herein, the drainage district proceedings in the Bates County case were had under and by virtue of the County Court Drainage Law, and not under the Circuit Court Law, and the County Court Law, by its terms, did not provide for the assessment of benefits directly against the public roads and highways, but specifically provided that the accruing benefits shall be apportioned to the county. Hence, even though Bates County had adopted township organization, the county itself was held liable for the payment of benefits accruing to the public roads and highways therein because the drainage act therein involved and under construction specifically directed and provided that the benefits are to be apportioned to (and paid by) the county, and to no other unit of government or political subdivision of the State. The distinction between the Bates County case and the instant case, we believe, is readily apparent. The same distinction applies to what was said by SMALL, C., on the second appeal of the Bates County case, in Drainage District v. Bates County, 216 S. W. l. c. 951, wherein it was ruled that a township road is a county public road within the meaning of
It is alleged in plaintiff‘s petition herein “that Chapter 119 of the Revised Statutes of the State of Missouri for 1909 (Chap. 121, R. S. 1919, on Township Organization) was at all the dates mentioned, and now is in force in Harrison and Mercer counties, the place where plaintiff, said drainage district, is organized and located.” The legal effect of defendant‘s demurrer is to admit the truth of such allegation, and so we must consider, as an admitted fact upon the record before us, that Harrison County has adopted township organization as prescribed by the statute. Harrison County being under township organization at the time of the drainage district proceedings and the assessment of benefits against the public roads and highways situate within said drainage district, and such township organization being still in force and effect in Harrison County (as alleged in the petition and admitted by the demurrer), it remains for us to determine the question whether Harrison County, as the unit of government, is liable and obligated to respond to an action, and a general judgment therein payable out of its general treasury,
It follows that the learned circuit court erred in sustaining defendant‘s demurrer to plaintiff‘s petition and in dismissing the petition at plaintiff‘s costs. The petition must be reinstated by the circuit court and leave given defendant township to answer.
The judgment nisi must therefore be reversed and the cause remanded to the circuit court for further proceedings in accordance with our views and conclusions herein announced. It is so ordered.
Lindsay, C., concurs; Ellison, C., not sitting.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Gantt, J., not sitting.