delivered the opinion of the court.
Thе plaintiffs in error, owners of several thousand acres embraced within the Little River Drainage District, of Missouri, brought this suit to restrain the collection of. a tax of twenty-five cents per acre levied generally upon the lands within the district for the purpose of paying its preliminary expenses. The district was organized in 1907 under the provisions of article 3, chapter 122, Revised Statutes of Missouri, 1899, as amended by the act of April 8, 1905. Its board of supervisors appointed engineers who made surveys and recommended a plan of drainage. Upon the adoption of this plan, in November, 1909, commissioners were appоinted for the purpose of viewing the tracts within the district and assessing benefits and damages. Pending the proceedings of these commissioners, the tax in question was levied under the apt of June 1, 1909, now § 5538 of the Revised Statutes of Missouri, 1909, which provides as follows:
“Sec. 5538. Levy of twenty-five cents per acre may be made for preliminary work. — As soon as any drainage district shall have been organized under order of the circuit court, and a board of supervisors are elected and qualified, such board of supervisors shall have the power *260 and authority to levy upon each acre of land in the district, not to exceed twenty-five cents per acre, as a level rate, to be used for purpose of paying expenses of organization, for topographical and other surveys, for plans of-drainage, for expenses of assessing benefits and damages and other incidental expenses' which may be nеcessary, before entering upon the main work of drainage. Any district which may have proceeded without such levy may, if in the opinion of its board of supervisors it be desirable to do so, make such level assessments for such purpose, and if such items of expense have already been paid in wholе or in part from other sources, the surplus shall be paid into the general fund of the district,- and such levy may be made although the work proposed may have failed or have been found impractical.”
The amended petition averred in substance that as to the plaintiffs all the proceedings had been in invitum; that the lands in the district varied in value; that no benefits had accrued or would accrue to the plaintiffs’ lands either from the expenditure of the moneys sought to be raised by the tax or from the carrying out of the proposed plan; that a large portion of the lands in the district, and those of the plаintiffs in large part, were to be condemned for a right of way for ditches and catch basins; and that the tax had been levied against every acre within the district, as a level tax, without regard either to relative value or to benefits, or to the fact that portions of the lands would be damaged and other portions would be taken by condemnation, or that a large extent of territory, if added to the district as had been proposed, would receive the benefit of the tax without being charged with any part. The levy of the tax, and the act authorizing it, were assailed as being contrary to the constitution of the Stаte of Missouri and also to the provision of the Fourteenth Amendment prohibiting deprivation of property without due process of law.
*261 Upon demurrer to the petition, the parties stipulated that the sole question to be determrhed was whether § 5538 (supra) was constitutional. The trial court held it to be valid and dismissed thе petition. After affirmance in the Supreme Court of Missouri, Division One, the cause was transferred (in view of the Federal question) to the court in banc where the judgment was finally affirmed, the opinion of Division One being adopted. 248 Missouri, 373.
In considering the contention thus presented under the Fourteenth Amendment, it must be taken to be еstablished that the district had been organized validly for a public purpose. It had been incorporated pursuant to the judgment of the Circuit Court, as in the act provided, and this judgment had been affirmed upon appeal. Little River Drainage District v. Railroad, 236 Missouri, 94. In the opinion of the court in that proceeding, the tracts were described аs forming “a contiguous body of land from one to eleven miles in width, extending in a southerly direction for a distance of about ninety miles from Cape Girardeau on the north, to the boundary line between Missouri and Arkansas. Streams and watercourses heading in the higher adjacent territory carry their waters to these low lands where, because of insufficient channels, the waters overflow and render much of the land uncultivable and uninhabitable.” Id., p. 103. The district is, indeed, a conspicuous illustration of the class of enterprises which have been authorized in order to secure the recognized public advantages which will accrue from reclaiming and opening to cultivation large areas of swamp or overflowed lands. Egyptian Levee Co. v. Hardin, 27 Missouri, 495; Columbia Co. v. Meier, 39 Missouri, 53; Morrison v. Morey, 146 Missouri, 543; State v. Drainage District, 192 Missouri, 517; Mound City Land & Stock Co. v. Miller, 170 Missouri, 240; State v. Taylor, 224 Missouri, 393 ; Squaw Creek Drainage District v. Turney, 235 Missouri, 80; Little River Drainage District v. Railroad, supra. It *262 was constituted a political sub-division of the State for the purpose of performing prescribed functions of government. Mound City Land & Stock Co. v. Miller, supra; State v. Taylor, supra. These drainage districts, as the Supreme Court of the State has said, exercise the granted powers within'their territorial jurisdiction “as fully, and by the same authority, as the municipal corporations of the State exercise the powers vested by their charters.” 248 Missouri, p. 383.
In view of the nature of this enterprise it is obvious that, so far as the Federal Constitution is concerned, the State might have defrayed the entire expense out of state funds raised by general taxation or it could have apportioned the burden among the counties in which the lands were situated and the improvements were to be made.
County of Mobile
v.
Kimball,
The legislature, in this instance, fixed the object and character of the tax, and prescribed the maximum rate. The authority to levy the tax for preliminary expenses was to follow upon the organization of the district. The plaintiffs in error urge that the determination at the time the district was organized was merely preliminary and tentative with respect to the lands to be included, and that assessments according to ascertained benefits for the purpose of meeting the cost of works and improvements are reserved for subsequent proceedings, upon notice, after surveys have been made and the plan of drainage has been definitely, adopted. See Rev. Stat. (Mo.), §§ 5511 to 5519. It is true that the elaborate inquiry which is to follow the organization of the district may show the advisability of bringing in other lands (Squaw Creek Drainage District v. Turney, supra), and the statute undoubtedly does postpone the assessment of the cost of works and improvements until the plan of drainage has been decided upon and benefits have been determined accordingly. But none the less the organization of the district takes effect when it is duly constituted by the judgment of the court. The owners whose lands are embraced in the district as proposed, and who have not signed the articles, are summoned and their objections to the organization and to the inclusion of their lands are heard. As a public corporation, with defined membership, the district when established is empowered to go forward with the expert investigations and surveys which of necessity must precede the adoption of a complete scheme. The outcome of these studies cannot ,be absolutely predicted; they may even result in the abandonment of the project. But probable feasibility has been shown, and the district, in con *264 sequence, organized. The preliminary work must then ■ be' done and its cost must be met. It is work undertaken by the district. The owners of the included lands (with one vote for each acre) elect the district officers (supervisors) whо are to proceed with the surveys, etc., in the manner detailed. In the present case, the district was created upon an adequate showing of basis (236 Missouri, p. 138) and it is not disputed that the plaintiffs in error received the notice to which they were entitled (Rev. Stat. (Mo.), 1909, § 5497; Laws of Missouri, 1905, § 8252). They were thus apprised of whatever legal consequences attached to the formation of the district with their lands in it. The present question therefore cannot properly be regarded as one of notice. The imposed burden, if it be in its nature a lawful one) is an incident to the organization which they had abundant oppоrtunity to contest. It is apparent that when the district was duly organized it had the same footing as if it had been created by the legislature directly; and if the legislature could have established this district by direct act and then constitutionally imposed upon the lands within the district the ratable tax in question to pay the expenses of organization and for preliminary work, it cannot be doubted that the legislature had power to impose the same tax upon the district as organized under the judgment of the court.
The ultimate contention, then, is that the plaintiffs in error cannot be subjected to this preliminary tax of twenty-five cents an acre because their lands, as they insist, will not be benefited by the plan of drainage. In authorizing the tax, it is said, the legislature has departed from the principle of benefits, and the tax is asserted to be
pro tanto
an uncompensated taking of their property for public use. But the power of taxation should not be confused with the power of eminent domain. Each is governed by its own principles.
County of Mobile
v.
Kimball, supra; Bauman
v.
Ross, supra; Wight
v.
Davidson,
*265
supra; People
v.
Brooklyn,
It is further objected that the levy of the tax amounts to a deprivation of property without due process of law because of the retrospective character of the legislation,— the section in question having been passed after the district was organized. As to this, it is sufficient to say that the statute which was in force at the time of the formation of the district contemplated liability to taxation to defray the preliminary expenses as well as the ultimate cost of the improvements if made (Laws of Missouri, 1905, .
*267
§ 8252); and these preliminary outlays must be regarded as inсident to the organization for which the legislature was competent to provide in the exercise of its taxing power.
Seattle
v.
Kelleher,
The plaintiffs in error have also urged that § 5538 is invalid under § 10, Art. I, of the Federal Constitution upon the ground that it impairs the obligation of contract. This contention was not presented by the amended petition and was not deemed by the Supreme Court of the State, Division One, to be within the stipulation upon which the case was tried. 248 Missouri, 382, 394. Upon the motion to transfer the case to the court
in banc,
the question under the contract clause was raised, but- the court
in banc
simply adopted the opinion of Division One.
Id.
In that opinion, however, after referring to thе stipulation, the court proceeded to observe that the charter of the district, as a public corporation, did not constitute a contract with its members that the laws it was created to administer would not be changed. If this can be considered to be a decision of the question, we see no reason to disturb it.
Laramie County
v.
Albany County,
Judgment affirmed.