*1 Township. DISTRICT v. Trail 1927j DraiNAGb Creek independent cause, produced injury. new primary proximate will be the
cause cause where it is so linked and bound to succeeding events that all create or become a continuous whole, operating injury the one so on the others to make the the result ’’ primary of the cause. plaintiff presented
As view we the case substantial evidence as to alleged proximate Moga’s cause of death and her ease should have gone jury. erred in sustaining The court defendants’ demur- plaintiff’s refusing rer to and in subsequently evidence to set aside order nonsuit. Respondents urge finally plaintiff’s Moga evidence showed that experienced was an blaster, attempting to remove the choke pole he did not use the in the usual wooden and that he assumed way, experienced the risk. While he was an is clear blaster the evidence working that he ivas supervision, under the direct direction and con- trol danger apparent of foreman Limbean, that the was so not to man prudence obey cause a the commands of ordinary refuse to superior, and, previously indicated, fair, his as we have reason- necessary put able and construction plaintiff’s on evidence as ruling a attempting whole was demurrer thereto is that he remove the command, supervision choke under direct and con- trol his usually foreman in employed. the manner judgment
For the reasons order of the trial above stated the refusing reversed, court previous set of nonsuit is aside the order and the cause remanded for a new trial.
All except J., sitting. concur, Gcmit, County Drainage Appellant, v. &
Harrison
District,
Mercer
Division 1927. Municipal 1. APPELLATE Tax Assessed JURISDICTION: municipal
Township. State, political subdivision of An ais appeal Supreme jurisdiction Court has therefore the a a collect from a suit township, although is not such a provision meaning political of the within subdivision the State jurisdiction (Sec. 6) defining appellate the Constitution Art. Supreme Court. Municipal Township: The Constitution -: Political Subdivision. 2. law, general Assembly, (Sec. 6) General Art. authorized the (Chap. R. township organization, statute organization thereto, plainly contemplates 1919), pursuance enacted 1)34 Term, [Api il ¡Supreme Mxssouri, Ooubt OR Vol. government, separate as a as a distinct unit of political the same article Supreme a governmental State, section of and another subdivision (Sec. 12, 6) Art. declares of the Constitution jurisdiction appeal “in cases where Court shall have exclusive political party,” and a town- or other of the State is ship organized “other therefore such statute is *2 Drainage [Distinguishing King’s Levee Lake subdivision.” Wilson v. & District, 39, 237 48.] Mo. Liability against Town- Public Roads: DRAINAGE TAX: 3. ship. trict Act statute, Assessed Drainage organized drainage Dis- A Circuit Court district under the authority, (Secs. 4378-4438, 1919) S. has of 1913 R. highways against public the and to a assessment roads benefit corporate within an or- the district and located within the ganized municipal township, boundaries of against an action the town- a and can maintain general assessment, procure ship and for the collection of such benefit judgment township against amount thereof. the for the Statutory Remedy: Right: Inadequate -: -: -: 4. Positive organization by relating Supplied of a the Common Law. The statute to 1919) (Sec. 4390, drainage benefits shall be to the increased provides that in the circuit court R. according roadways, against public highways and assessed efficiency physical the maintenance cost of and decreased drainage roadway by protection works the derived from the reason of gives improvements, district a lien on the road and highway and to the thereby assessed, a creates the benefit amount authority Legislature district, positive right had and the favor of the by works; may say highways a be benefited but to against unenforcible a road is the statute lien of a assessment benefit by sale, Legislature has not foreclosure or the remedy positive adequate appropriate the enforcement of an right to proper statute, resort and therefore the created adequate any remedy existing will it at common afford remedy1 ordinary a redress, is an the usual and therein, against judgment of the State maintenance, repair upkeep chargeable with be; identity benefited, corporate whatever its name or and and township organized municipal the suit for if is an that subdivision brought and a the amount of the assessment should be [Distinguishing Drainage v. Bates District rendered it. Drainage County 78, proceeding Court under the 269 Mo. which was Law.] District County Township. Chargeable Benefits -: -: 5. assessed Whether to against public drainage district roads or politi- paid be under the Circuit District Act should Court upkeep maintenance, repair chargeable cal subdivision of of law with the duty county, township organization is the it If there roads. is duty organized township charged maintain the with the to assessment, assessed, not the pay which the benefit duty Court county. organized under the If the district assessment, county Drainage Act, act duty pay for that county.” is the apportioned expressly requires “be that the assessment A Admission. Petition: Demurrer to 6. TOWNSHIP ORGANIZATION: alleging Town- township petition that the the defendant demurrer ship Organization admission in effect Law is in force in adopted township organization. has pro- Duty Repair Under Tax. 7. Roads: TOWNSHIP: organization, township relating to of the Constitution and statutes visions it is duty of townships, duty and not respective District 985 DRAINAGE v. CreeK 1927\ organiza- government, the tion, as the unit of in counties under maintain, keep up, drag repair corporate organized townships, respective within the boundaries of the a district out of road in such benefit Drainage Act, paid organized under the Court Circuit should treasury township funds. 55, Juris-Cyc. Law, J., Corpus References: Constitutional C. Section J., Drains, Courts, J., 511, 1080, 708, p.
p. 15 C. Section n. C. n. 38. 55. 73; 64; 275, 753, 212, p. p. p. Section n. Section n. Pleading, Cye., p. 333, n. 76. n. Judge. L.
Appeal Woods, from Harrison Circuit Court.—Hon. B. AND remanded.
Reversed appellant.
Randall Wilson
(1) gave appellant right R. S. assess Sec. *3 against against benefits and such assessments roads, City 557; property Henry 115 Mo. proper. County, are ex rel. v. 560; Cemetery Assn., 155 v. 239 Mo. Brown,
St. Louis v.
Mullins
M]o.
689; Drainage
78;
v.
269
County,
District
Bates
Mo.
Platte River
387;
102
v.
County,
Coe,
Drain. Dist. v. Andrew
278 S. W.
Grimes
406; Young Wells,
(2)
1919,
Ind.
Sec.
R. S.
4399,
v.
provides remedy by districts which enforce property,, against lands collection of benefit assessments and other provide any whereby remedy but it a does not can against public roads or assessment enforce collection benefit right-of-way ways, any nor does other section railroad or railroad Drainage give for collection of remedy the Circuit Court a Law (3) Where Chap. 28, R. S. 1, such benefit assessment. Art. 1919. statutory provided, right remedy
a is statute, is created no but remedy known at common any appropriate then had to resort be 85; 269 Householder Drainage County, 78, law. District v. Mo. Bates (4) 51. Cummings v. 89 Mo. City, 488; 83 Mo. v. Wynn, Kansas against public If Legislature special assessments allows benefit by a respond therefor property, made to municipality can be 557; Drain- general judgment. City Henry County, 115 Mo. ex v. rel. Dist. Drain.
age 84; River v. 269 Mo. Platte District Bates County, legal is the v. County, (5) 278 The defendant Andrew S. W. 387. its roads, within township public
custodian public highways, duty 12, Chap. boundaries. It is the 98, Art. S. R. for paid be
township
keep
should
up
Benefits
township
roads.
improvements.
party
up
duty
keep
whose
is to
(6)
A. respondent. and Garland Wilson for (1) Where the assessed is to be collected the enforcement against lien a remedy inapplicable and such a given account of property, the nature of right there no City the property Henry County, itself. of Clinton use v. 115 557; Mo. 561; St. v. Brown, Louis Mo. Dist. v. Bates (2) any Mo. 78. right given In order the collection aof tax from municipal subdivision of the State public property reason the benefit suit to judgment, provision secure there must be a clear City to that Henry effect. v. Clinton to 115 Mo. use 557; St. 561; v. Louis 155 Mo. Dist. v. Brown, Bates County, (3) nothing 78.Mo. There is cre- ating right on account of benefits assessed (4) any liability roads therein. If rea- there son against public by drainage districts, of benefits assessed *4 liability township the part separate is on the of Drainage County, 78; therein. District v. Bates 269 Mo. District v. Andrew S. W. 387.
SEDDON, appeal upon C. This cause comes to this court on pleadings onty. petition alleges:
“Plaintiff mentioned, states at all the hereinafter dates & County is, and Harrison Mercer District vras, uoav corporation duly of provided the Laws the State of Missouri for and Chapter now known as Article 1919; Revised its Statutes of for that after the State of Missouri said organization, supervisors its all the board levied a. thereto, land within found its district and for 1927] TRAIL DISTRICT V. CREEK TOWNSHIP. DRAINAGE completion its
necessary pay proposed the cost of the works improyenients plan reclamation, carry- and in and as shown its ing object organization. out the of said district Township, defendant,
“Plaintiff further states that Trail Creek twenty- is municipal sixty-four (64), Range township, number (26), six in Iiarrison Missouri. plaintiff’s year supervisors
“That board of deter- mined, tax, ordered an annual and levied installment as is shown delinquent drainage against attached, tax bill hereto defend- ant, public highways and its said and The sum roadways, to-wit: $369.26, payable which said amount became due and first day of November, 1920.
“Plaintiff Chapter further states that 119 of the Revised Statutes mentioned, for 1909 State of was at all dates and Missouri now is in counties, place force Harrison and Mercer where plaintiff, said district, located, is' and said Township aforesaid is for the benefits assessed and liable against levied highways roadways hereinafter de- scribed, municipal within said in plaintiff’s plan of recla- township, mation, according physical the increased decreased efficiency roadways by maintenance cost of protection, reason said public highways roadways proposed derive from the work improvements plaintiff’s district; highways and which said road- ways are follows, described as to-wit: follows definite [Here specific description highways roadways.] of said and' secretary
“That supervisors plaintiff’s of the board of said district extended provisions its tax under act on of said a tax book highways township in which defendant’s roadways located, are that said tax book was certified township delivered to collector as is of said pro- aforesaid; vided said article had that said collector au- thority to collect said tax aforesaid so levied and extended defendant’s said said made roadways, and that collector diligent same, effort collect and re- but the defendant failed pay fused tax, any part said and extended thereof, so levied as aforesaid roadways said aforesaid.
“That said made return of the collector thereafter due book, said fax said certified the said tax defendant’s' roadways delinquent. aforesaid as “That secretary supervisors thereafter plaintiff’s board of certified delinquent drainage Treasurer and tax to the Collector of County, Missouri, collection, Harrison ex-officio not under the collection of tax in counties provisions Chapter for 1919. of Missouri Revised Statutes *5 ))?(cid:127), Vol. [April Tci OE MISSOURI, SUPREME COURT states that said Collector and Treas- further “Plaintiff ex-officio Missouri, diligent has due and made Harrison effort
urer of drainage high- delinquent against tax due defendant’s to collect said but that the has ways roadways aforesaid, defendant failed unpaid due pay same, and the same remains refused delinquent.. is now it said cause action further states that bases its of
“Plaintiff ‘Ex- delinquent attached, tax bill marked hereto case part by the hereof, hibit A’ and certified Treasurer made Missouri, provided Harrison as is Collector of ex-officio 1, Chapter of 28, of the Revised Statutes the State of Mis- Article souri for 1919.
“Plaintiff further permitting states that reason of defendant delinquent unpaid .said tax become and remain aforesaid to day December, being year after the 31st the same one levied, per in which penalty said tax was the same bears two cent per day on De- month the the amount of said tax from the 31st paid; penalty cember, until that there is now due of said against defendant, said real estate of the the sum $125.55.
“Wherefore, plaintiff may prays court that have against defendant for the sum the amount of said de- $369.26, linquent drainage levied, tax, and extended as aforesaid so against roadways aforesaid, the defendant’s said day penalty $125.55 further sum of thereon since the 31st against December, plaintiff’s 1920, and that lien said roadways together sums, expense for with the cost and said collecting same, including attorney fee, a reasonable fixed court, and taxed as in this Article costs as is Chapter 28, of Missouri the Revised Statutes of the State aforesaid, adjudged, declared and enforced said de- aforesaid, fendant orders, such other further as to .the just court seem proper.” (respondent here) following
Defendant filed the demurrer to the petition:
“Comes now the defendant the above cause and entitled demurs petition grounds plaintiff herein, demurrer states: petition
“1st. That the fails facts herein to state sufficient to constitute cause action defendant. petition attempt
“2nd. That on its face shows it is an County Drainage Harrison & ‘Mercer District to collect tax and benefit assessments under the defendant, municipal Township, township, alleged account of roads and to be affected *6 1927] DISTRICT V. TRAIL DRAINAGE CREEK TOWNSHIP. drainage by district, such
and benefited when under the law the legal is not the owner or any said defendant custodian in manner of public highways in township; said that the the same under the subject law, taxation, against if must be assessed and taxed townships of county. and not the various provision whereby That is no law townships, “3rd. there such defendant, as or are authorized enabled to collect a tax any provided by by or source revenue which such taxes contemplation is no met, law, expressed be there either or by townships which said implied, are to be assessed benefit assess- drainage purposes. ments or taxed for by express provisions by implication
“4th. That clear any taxes, or assessments for purposes
public highways State, of the must are authorized to be as- sessed counties, the various and such benefits must be as- by sessed and State, borne the various counties of the and not townships thereof. “5th. That provision there no of law for the or assessment col- lection of benefits or' townships, assessments or taxes the various enabling townships in such a lawful manner meeting of'any defraying tax assessment benefit. power
“6th. plaintiff authority That under the laiv had no or assess the defendant purposes. or other “Wherefore, prays judgment defendant of the court that it be discharged naught held, and that it recover its costs this ’’ behalf laid expended. out and petition, and,
The circuit court sustained the demurrer plaintiff (appellant here) refusing further, plead the circuit court judgment dismissing assessing petition rendered the costs ag’ainst plaintiff. timely suit in arrest Plaintiff filed motions and for which motions rehearing, were overruled court, whereupon appeal circuit to this allowed was jurisdiction court. We appeal take of the under Section Article 6, of our town- Constitution, State because the defendant ship political is a subdivision of State.
I. jurisdiction not question While the herein is raised of our parties jurisdiction although apparently this our (cid:127) jurisdic retaining parties hereto, conceded nevertheless, appeal upon tion of ground defendant, this that sole State, we Township, political is a
Appellate language say take occasion that we are mindful Jurisdiction. lise(j an(j v. banc, in Wilson court, adopted en 48, wherein King’s District, Lake & l. c. it Levee Mo. op MissoüRI, [April Term, Von. SUPREME COURT think) (and rightly is not so, ruled we that meaning
political subdivision of the within the of Section State precise question, how ruling Article Constitution. In opinion case said: “We are of ever, writer State,’ as opinion words, political that the ‘other subdivision of they ‘county,’ following do, Article the word used having powers mean such be created subdivisions similar to school townships, those do refer to po disti'icts, districts, drainage districts, and such like minor levee litical subdivisions State.’’ opinion
But us writer of seems obvious to learned *7 in case, using language, that in did not have mind quoted above organized and political (i. governmental) townships created in e., as Organiza- Township a number of the of State under the counties Township Organization 121, "R. [Chap. tion Statute. The 1919.] Assembly of the State aforesaid the General Statute was enacted granted by pursuant authority 9, Article 8, to the Section adopted by people this State on October Constitution vote of of 30, 12, included Section Article (in which Constitution is same 6, may Assembly provide, aforementioned), “The as follows: General by genera] county law, township organization, any under which may organize legal coun- majority a of voters of such whenever ty, general election, shall voting any so proposition, at organi- determine; county township adopt and whenever management zation, provides so as much of this Constitution for the county revenue affairs, of the assessment and collection and township county general law officers, in with such conflict dispensed business of organization, may with, be and the townships therein, be local concerns of the several . .” transacted law. . prescribed in such manner as aforesaid, general Organization enacted Township The Law authority, Assembly pursuant constitutional General the aforesaid township organization or creation of plainly contemplates the words, separate government, or, in other as a a, and distinct unit of Town- political (i. governmental) State. The e., subdivision of the distinct, govern- Organization separate ship provides Law in government, those counties of the township, ment of tlie as a of unit organization provides for voting adopt township plan. It State prescribes govern- their township of officers election certain provides assessment, authority. It duties, powers mental organized townships, not revenue such collection governmental charges ordinary township only defray usual bridge purposes. uses and In oth- expenses, for road and but also law, words, general organization and the constitutional er enacted, in our authority which law was DRAInage 19,27J v. Trail Creek District contemplates, provides for, opinion, separate creation of a an government, unit of known as distinct township, hav-
ing governmental powers, charged governmen- certain with certain obligations county. similar to duties, tal those Hence, think we 1875, that the Constitution of they framers our when wrote into Sec- 12, 6, tion Article of said Constitution that Supreme Court shall jurisdiction have appeal exclusive “in cases county where a or other ’’ mind, political party, subdivision of is a the State must have had in political the use other words “or State,” subdivision of the pursuant Assembly, authority granted General 9, Section Constitution, might Article of the same or would pro- vide, law, for the creation unit separate of government, and distinct from county.
two pari sections of the same Constitution are maietia, and must plain be so construed. It seems us that the framers of the Con- stitution would have the word used “other” in connec- tion with “county,” the word Section Article of said Con- except contemplation stitution, creation of another unit government existing addition to that of the then unit. We are constrained to the organized township, so view, hold, such as herein, adopted defendant in a has organization, ais subdivision of State within the mean- ing and intent Hence, of the Constitution. Article jurisdiction we retain appeal. proceed We discussion of appeal. merits of the *8 II. It be that, stated petition prays at outset while the the adjudgment and enforcement of a lien and involved, herein agreed nevertheless seems to be parties conceded hereto such a lien cannot be Judgment Against (by public policy of rulings enforced reason and the court) against public property, including of this decisions highways. parties agree Both that this question single law, namely, plaintiff but a of Can presents appeal levy benefit assessment drainage district corporate within the boundaries of defendant located a suit or action township and maintain for the collection
organized procure judgment assessment, therein, such benefit .township? The solution of this the defendant sought applicable in and found statutes of question must be State. ' petition, alleged It is in admitted demurrer, pro- appellant is á ceedings Chap- under and virtue Article in circuit court (Sec- Revised 1919. The statute 4378-4438, ter Statutes Sections ¿I Sui-rjímu Missouri, [Api Term, on1 Couet Vol. 317. , contemplates appointment, 4388) circuit lion court appraise lands, who within and with commissioners, shall three acquired holding- drainage district, rights-of-way, to be out said district, of the shall and other works who assess basins damages to all lands the district and other benefits and plan. property reason of the reclamation among things, provides: other . . Said com- Section premises to view and determine proceed missioners shall property, within or all land and other without the district, value of holding acquired used for basins or other rights-of-way, to be reclamation;’ they plan shall assess the works set out ‘the damages, any, amount of if that will ac- amount of and the benefits, lot, forty-acre tract governmental crue to each or other public highways, railroad and according ownership-, land other roadways property, carrying and other from rights-of-way, railroad putting plan for reclamation’ heretofore out and into effect ‘the íúghts- railroad adopted. public higlwoays, . and other . . The property be of-way, roadways, railroad and other assessed ac- efficiency cording physical and decreased mainte- to the increased roadways by protection derived from nance reason of the cost of improvements.’.’ works and proposed provides: prop- “After list and other lands, Section 4394 erty, court, with and the decree and the assessed benefits recorder as have been filed the office of supervisors shall, with- article, Section 4392 of this then the board of portion levy tax said unnecessary delay, out benefits and other in the district lands, railroad all which necessary found the board assessed, been be have completion proposed supervisors pay of the the costs ‘plan improvements in said for reclamation’ and works and as shown carrying objects district, plus per ten cent of out the of said apportioned emergencies. said total The said tax shall amount property in said tract land or other to and levied on each and not in excess there- proportion to the benefits .” of. . . ‘‘ supervisors shall each said board of provides: annual year amount of the order and determine, thereafter preceding section, levied under the installment total taxes during year at the same collected shall become due and be *9 collected, which said time that taxes are due state by the and certified levy shall be evidenced annual installment year the collector 1st of each to September than said board not later property of said and other county which lands revenue each .” district are situate. . . Drainage DiüTRIüt v. Cheek
1937\ provides: “All drainage provided Section 4399 taxes this together article, penalties payment with all for default in same, collecting same, including all costs in attorney’s fee, reasonable to be fixed court and as brought taxed costs in the action to payment, shall, filing enforce from date of the certificate hereinafter described office the Recorder of Deeds for the where- properties lands and are situate, paid, until a lien, constitute only general the lien of the State state, school and road paramount, upon taxes shall be all the lands and other which such provided taxes shall be levied as is (The own.) this article . . above italics are our parties
Both to this action bottom their respective contentions rulings of this division of this court announced in Dis trict v. Bates and Platte River District Mo. v. Andrew party W. 387. Each claims that our hold ings in the two cited cases are determinative of its contention herein drainage and of appeal. this Plaintiff district (appellant), on the hand, urges one that Section 4390, supra, Revised Statutes 1919, empowers plaintiff right authority with the benefits, to assess improvement special an tax, assessment, pay and dis-' charge benefits, against such roads and located township; within the boundaries of defendant that Section Revised supra, adequate Statutes does ap an propriate remedy by drainage which the enforce the against public collection of the benefit assessments levied
highways, and, adequate therefore, statutory remedy inasmuch no assessments, for the collection of such benefit resort by plaintiff law; had any appropriate remedy known at common that, legislative department inasmuch as branch our empower State Government has seen fit to authorize proceedings districts circuit assess court to with thereto reason plan, reclamation and inasmuch rulings prior public policy highways, by reason of, court, subject sold in satisfaction to, are not and cannot be assessments, there lien for of such benefit enforcible the collection respond organized township fore the defendant can be made to one, judgment rendered in an such as the instant brought by organized township to required assessments, pay collect such and can be benefit satis fy treasury; out of the funds and holdings such, analogy, our and that is the substance effect supra. cases, in the two cited urges that, hand,
Defendant other order to enforce the levied collection assessments *10 ,‘517. OKMissouRi, [Ap.il Term, SuPRKMJiCol:kt Von. s public highways by an action road means and a (i. judgment organized e., an or other governmental) State, subdivision of the there must be a clear and positive remedy ap in the provision such or other plicable State, provision statutes of and that there is no the law or of the State an whereby other statutes township may subjected general judgment an be to against public therein, for the collection of benefit assessments levied highways; that, contends further and defendant any liability obligation payment of if there is or for the benefit as public imposed upon, against, high or the roads and sessments laid obligation liability county ways, or is that the within situate, sep roads and are not that of therein, arate and distinct and that such is the The; cases, rulings supra. import and effect of our the two cited respective necessary, therefore, a parties contentions of the make analysis and close of the cited cases. careful proceedings 269 Mo. Drainage
In District v. Bates district, leading incorporation of the accruing private lands and the assessment of benefits County therein, liad Court roads and situate were commonly of wliat is called of Bates virtue County, under chap. 1909, and County 41, R. S. Drainage Law. Court [Art. 1909, which 5591, Revised Statutes amendments thereto.] County Law, pro part Court was then a of the so-called any provisions of this vided: “When ditch established under in whole (i. e., chap. 1909) drains, either article Art. R. S. any public corporate railroad, or or or road or in benefits part, State or to the apportion viewers shall if free railroad, company turnpike road, corporate if road or proportion owning, operating controlling the same the same, improvement propor location and construction the cost (Italics ours.) private as to individuals.” tion received benefits the Bates Coun Construing, therefore, precise involved in statute ty ruled, in substance and ef case, this division of court therein County Drainage Law involved fect, therein that the so-called Court provide did n'ot drainage improvements accruing
benefits thereto reason specifically provided hand, but, the other plan, reclamation highways shall be accruing benefits situate; and, public roads are apportioned to in which such County Court inasmuch furthermore, as the so-called remedy appropriate adequate Law failed to an county right thereby (i. apportionment e., created in such highways situate 19:27\ DRAINAGE DISTRICT V. TRAIL CREEK TOWNSHIP.
county), appropriate tbevefore the invoke remedy law to right to the common enforce the known created remedy an appropriate, statute, usual, action Upon point, and a therein! latter we said l. c. 89.- “If Legislature Mo. therefore the Bates case, *11 remedy right adequate created, has to an for the as we failed true, drainage proper remedy is think the district invoke any right. truly 1 Cyc. 706, rule stated in enforce its The . right duty by statute,
thus: ‘Where new is created but no remedy pointed principle law that there no out, can be wrong remedy application, without a has one to the entitled statutory provisions any existing remedy benefit of the resort adequate proper will afford him redress.’ This rule is so ' universally required. authority that citation of is not announced 1909) (See. 5591, In the at bar B. S. authorizes the case the statute accruing charged county. to be to the There benefits remedy an adequate remedy is no and the usual would be provided, here, against county.” clearly apparent, But language Judge from the' author of the above used Graves, County remedy by action, opinion case, that the the Bates County against Bates be therein, properly was precise terms, case, its cause statute under construction liability obligation accruing payment laid the of benefits highways upon itself, roads and political governmental of the State. no other case, plaintiff drainage in the County Bates Unlike supra, however, the instant case question herein were organized, was benefit assessments Drainage commonly Circuit Court what is called the levied, 1919). (Sec. 4390, R. latter law (Art. R. The 1, chap. 28, Law S. circuit 1919) appointed provides that the commissioners dam- and the amount of the amount benefits,
court “shall assess public higlnvays, . . railroad if . ages, any, that will accrue roadways from rights-of-way, railroad other and other here- plan for reclamation’ putting effect ‘the carrying out into and other public highways, railroad adopted. . . . tofore The as- property shall be roadways, and other riglits-of-way, railroad physical efficiency and decreased according the increased sessed de- protection roadways reason of cost maintenance ours.) (Italics proposed improvements.” works and rived from the County Drainage County Law involved Bates Unlike the Court specifically pro- Law involved ease, Drainage herein the Circuit Court directly accruing benefits vides that the provi- other no further or there is highways, to or such benefits apportionment sion in Sup. 317 Mo. —60.
Term, Huprbmb ob Missouri, Court [Apiil You. 317. governmental subdivision of the State within are situate. Therein lies distinc- tion between the Bates case and at the case bar. clearly
It is therefore apparent, we that-the think, Legislature, in (Art. enactment the Circuit Court Law chap. positive R. S. created 1919), right, in favor of the dis- trict, to the assessment of located within the boundaries of the district. question next before Legislature us is whether provided
adequate appropriate remedy for the effective enforcement of positive right By so created. Revised Statutes of the Circuit “All Law, Legislature Court provided: taxes for in article, together penalties with all payment default in all same, collecting costs in the same, including a attorney’s fee, reasonable to be fixed the court and taxed brought as costs in the action payment, enforce from shall, filing date of the certificate hereinafter described in the office of the Recorder of Deeds for wherein lands properties *12 are situate, paid, lien, until only constitute to which the lien of general state, county, State for school and road taxes shall be paramount, all property the lands and other which such provided taxes shall be levied is in this article.” 4400, Section Revised 1919, Statutes provides: of the same act “The liens es- tablished and declared in preceding section(s) may and shall by be enforced an delinquent action bills, tax made and certified by collector, which action shall be in instituted the cir- regard cuit court without to the amount of the claim within six year months after December 31st of the for which said taxes were levied. brought The suit shall in corporate name attorney its lands, land or prop- or property erties, on which such paid.” has not been The latter provides section further lien, foreclosure of the and for sale of the lands passing execution, assessed and the of title thereto under upon delivery pursuance of sheriff’s deed of the sale..
As we have apparently heretofore it is remarked, conceded parties public that hereto roads and subject are not an payment assessments, enforceable lien for the of benefit and can general not be sold special execution, tinder either or of sale, order thereby general system severed high from the ways, contrary because policy, and such seems to be the judicial trend But, own nevertheless, our announcements. we announced, language, have also no uncertain that it within the is power Legislature provide, say, and to property by public improvements accordingly be benefited assessed charged proportionate with its share of the from District v. 19:27J public improvements. instance, City
sucli For we announced Henry ex Clinton rel. v. 115 Mo. l. 570: c. “As it within the power Legislature property to make devoted to uses liable for local assessments, public policy and as it is contrary permit public property may and sold, to be we do concede that Legislature can payment for the of local assessments against public general treasury.” again, out of the And Drainage District v. Bates Mo. l. c. we stated the principle “In Legislature say thus: judgment, our could public property may by public improvements, be benefited and could further say made, that for such benefits an should be .assessment the municipality respond by judgment be made to ’’ paid general treasury. out of funds Legislature spoken Drainage Law, has so in the Circuit Court clearly it has supra, Revised Statutes provided required public highways . . . shall be that “the efficiency according physical and decreased to the increased roadways by protection maintenance to be de- cost reason of proposed improvements.” Inasmuch rived'from the works and provided the lien 4399 and Revised and declared Sections sale) (by supra, Statutes is unenforcible foreclosure it public policy, fol- because of through inadvertence, has Legislature, apparently lows that the mere adequate appropriate provide by, an in, failed the statute remedy positive right created the stat- for the enforcement of' the drainage dis- ute. But it does not follow therefrom positive right created impotent trict is remediless and to enforce adequate appropriate for, no favor, the statute its where right, remedy the created enforcement of remedy at common existing resort to redress, and the usual adequate proper that will afford therein, ordinary remedy *13 charge- State; the against political of governmental subdivision the public and maintenance, repair upkeep of the with and able the Any identity be. corporate name highways, whatever its absurdity, an utter amount to part would other conclusion on our Legislature shall have that the to our minds for it is inconceivable accruing benefits language that positive declared in intending that without also and public the by appropriate, some be enforcible positive right created shall so law; the otherwise, known adequate remedy and effective scrap a nothing more than right amount positive created would necessarily must thing. We lifeless letter, and a paper, of a mere dead to create virile intended Legislature the and conclude that
assume being carried enforced capable is right, and effective one Supreme Term, [April OE MistsouRi, Von. COURT right remedy adequaie appropriate to the complete, out remedy is means adequate appropriate afforded created. Such general the therein collectible out of oí an governmental treasury the the maintenance, with, responsible for, repair chargeable State controversy. in upkeep County, 278 W. In District v. Andrew Platte River case) (as instant was drainage district 388, the levied, under the organized, and the benefit assessments were Circuit 1919). ease, (Secs. In that seq., Court Law 4378 et R. S. expressed principles we our with the conclusions satisfaction An- case, supra, announced in ruled that County the Bates County payment, treasury, drew its was liable out of high- assessments roads and benefit levied ways county. again said, speaking situate within that "We therein through Graves, opinion in Bates J., who the author of was County County county ease: "The Bates case had to a court reference proceeding, impressed that, owing but we are with the view law, amendments, language used in Circuit Court in prevail. same should is rule of a benefited each paid party duty instance. should be 'whose Benefits it up keep improvement. Drainage all help districts roads within their territory, public, as a rule. Such are private. not Under the Court property, Circuit railroad which Act, is a public obligated pay public improve- highway, part its ment. We can see public highway, no difference between it and a which county.” ours.) is under the (Italics control of the
Andrew County, (unlike however Harrison in situate Township), the defendant herein, at least at the time of opinion the rendition of County case, our the Andrew had adopted not township organization, provided as in Chapter Revised Statutes 1919. County having adopted Andrew not town- ship organization by people vote of the Chapter Article (at least, Revised Statutes
adoption township organization by County Andrew is not dis- opinion closed our ease, the Andrew we ruled County supra), County the Andrew ease, following County ruling our the Bates case, that Andrew County payment, gen- was liable for the out of its eral treasury, benefits assessed roads and highways of said county, ruling planted and the reason was of our tersely bottomed ground, pointedly stated Judge opinion, paid should be Graves “benefits party duty keep up public improvement.” whose is to In that case, having Andrew adopted organization, duty keeping up situate within *14 Disteict v. 1927] upon County, government, comity devolved Andrew as the unit of ruling County
and our the Andrew ease hence was to that effect. township is said defendant that But it herein Bates organization County township had and adopted, under, was at the ruling County case, time of our and decision in the supra, Bates government, that we ruled therein that Bates the unit accruing was for the benefits to the liable roads county. pointed herein,
situate within that as we have But, out drainage proceedings County had Bates case were virtue, County under and Law, Court and not Law, County under terms, Law, the Circuit Court Court its directly against did the assessment of benefits highways, specifically provided but accruing benefits apportioned county. Hence, shall be to the even though County township Bates had adopted organization, the accruing itself held payment was liable of benefits to the act therein because therein specifically involved and under construction directed by)
that the benefits apportioned (and paid are to be government
and to other no unit County State. The distinction between the Bates case and the instant ease, believe, readily we apparent. applies is The same distinction by Small, to what was on 0., appeal said of the Bates second County case, Drainage W. l. c. District v. 216 S. Bates County, county public wherein it ruled was road road meaning within the of Section Statutes Revised specifically required the benefits to “a turnpike apportioned county. State or free road” alleged petition Chapter It plaintiff’s "that herein (Chap. the Revised Statutes of the Missouri for 1909 State of R. Organization) Township at all the dates men- was tioned, counties, and now is in force in Harrison and Mercer place lo- plaintiff, district, where legal cated.” The to admit the effect of defendant’s demurrer is truth of admitted fact allegation, consider, such as an so we must us, County adopted record town- before Harrison has ship organization County be- prescribed the statute. Harrison ing oi’ganization at time of
proceedings assessment town- district, situate within said ship organization being in Harrison still and effect in force (as alleged demurrer), it remains petition admitted for us as the question determine the Harrison whether unit respond to an government, obligated is liable and treasury, its payable therein out of op Supreme [Áp.U Missouri, Court You. 317. Toan, *15 payment of the benefits and tlie collection for highways question, in and here or whether the defend- roads Township, Trail in Harrison respondent,
ant and obligated and government, respond unit of liable to to an ac- general judgment payable township a therein out of the tion, and payment and treasury funds, and for the collection said benefit question depends, up- The answer to this as we view it, assessments. duty duty on whether it is or whether it is statutory government under the form township, keep up and in Harrison and force effect corporate highways lying within the boundaries of Town- Greek ship. .13169, 1919, existing
Section Revised Statutes on statute “Township Organization,” organized township declares each to be body a corporate power capacity with and to sue and be sued. Sec- 13216, provides: following tion Revised Statutes “The shall 1919, township charges: .; moneys . deemed . authorized to third, township be raised any purpose, for board of directors for township.” 1919, 13217, 1he use of the Revised Statutes Section provides: moneys necessary defray township charges “The each township shall be on the such town- levied taxable ship, prescribed the manner law for state revenue county purposes.” and Consti- Article our State provides: township tution “The board of in the several directors may, township organization, discretion, counties under in their collect, in the same manner as ai'e state taxes col- lected, special exceeding twenty-five $100 cents each valuation, bridge for purposes, used road and but no other purpose whatever; . . .” Chapter Article Revised Stat- part Bridges,” utes upon of our “Roads statute pertains specifically organization. township to counties under (Secs. 1919) 10911-10936, provides article comprehensive R. plan dragging, repairing township maintenance of roads,” working through system the so-called “contract byor through overseers, road and for the board and taxes, special taxes, poll assessment and collection and an benefit bridge annual personal road and both real and tax to be levied defray pub- property, repairs and maintenance of the cost of such analysis lic highways. roads and An of the afore- examination legislative mentioned intent it statutes make clear to us the duty respective organized be the townships, and not of the county, as the unit of town- in those counties under government, ship drag organization, keep maintain, repair up, highways corporate roads and situate within the boundaries respective organized townships. as wo announced the Andrew If, LoaN Co. v. Holland. Holland LaNd & 1927] whose, paid supra, party should be County ease, “benefits ’’
duty keep up public improvement, then analogy is to it foregoing principle application of announced the Andrew question at the benefit bar, assessments in case case treasury paid and township should be out of the funds by Township, duty defendant, is, Avhose Trail Creek under the cited statutes, keep up, repair and maintain drag, if little, any, There can be situate therein. doubt that the improvements plan question
reclamation here have been benefit situate within de- fendant expense that the cost maintenance and re- pairs to such public roads and has been decreased to some ex- tent, *16 improvements. at least, reason of such works The 1919) (Sec. 4390, contemplates Circuit Court Law R. S'. ‘‘ public highways according the benefits assessed physical the increased maintenance cost efficiency and decreased roadways by pro- protection reason of the to be derived from the posed necessarily improvements,’’ presumption works and and the physical efficiency arises that the corporate
within Township in- limits of Trail Creek has been creased, and the cost of maintenance thereof has been decreased to the extent or amount of the assessed benefits reason of the improvements. works and sustaining
It follows that learned circuit court erred de- petition dismissing pe- plaintiff’s fendant’s demurrer to tition plaintiff’s at The petition costs. must be reinstated circuit given court and leave defendant to answer. msi must and the cause re- therefore be reversed
manded to proceedings in accordance circuit court for further with our views It so ordered. and conclusions herein announced. ' Lindsay, G., concurs; 0., sitting. Ellison, not PER opinion adopted foregoing by Seddon, C., is CURIAM: The anil, opinion concur, except as the judges the court. All tí J., sitting. v. Company, Appellant, Bertonia A. Hol
Holland Land and Loan land. 298 S. 39.W. July 30, One,
Division Subsequent 1. CONTRACT: Variance Extrinsic Evidence: Acts contract, by principal Parties. Where owner the reservation in the party, stock of entire bank sold it the other was the bank’s