CLARK E. JACOBY, Appellant, v. MISSOURI VALLEY DRAINAGE DISTRICT OF HOLT COUNTY, MISSOURI, a Municipal Corporation; CHARLES E. SENTNEY, FRANK WALKER, A. B. CATON, GEORGE H. ALLABAC and HARRY MORRIS, Supervisors, constituting the Board of Supervisors of said District, and KATE GREEN, Treasurer of Holt County, Missouri, and FRED COTTIER, Collector of Holt County, Missouri.
Court en Banc
March 10, 1942
Rehearing Denied, July 28, 1942
163 S. W. (2d) 930
The cause was tried on an agreed statement of facts supplemented, on behalf of defendants, by the testimony of a single witness, the President of the Board of Supervisors of defendant district. The agreed facts, insofar as pertinent, are:
(1) That the district, containing 25,511.86 acres, was duly incorporated in the Holt Circuit Court, March 10, 1927, under the provisions of Article I, Chapter 64, R. S. ‘29 [Now Article I, Chapter 79, R. S. ‘39], and at the time of the institution of this suit, its Board of Supervisors consisted of the persons sued as such;
(2) That on May 28, 1927, the district, by written contract, employed plaintiff as its Chief Engineer;
(3) That shortly after the incorporation of the district there was duly and regularly levied a uniform tax of 50 cents per acre upon each acre of land within the district for the purposes mentioned in
(4) That pursuant to contract, plaintiff prepared plans and specifications and a plan for reclamation, and made the necessary surveys for the works, ditches, and embankments intended to drain and reclaim the wet and overflowed lands in said district, which were approved by the Board of Supervisors, and that plaintiff performed all of the services which were required to be performed by his contract prior to the beginning of the construction and work of reclamation, and that the warrants sued on were issued to him for his said services; that in addition to the warrants sued on, plaintiff was paid for his said services by three warrants, two for $2,000.00 each, and one for $1,000.00; one of said $2,000.00 warrants has been paid by the district and the other two have not been paid;
(5) That the Circuit Court of Holt County, from the report of the commissioners appointed to assess benefits and damages, found the estimated cost of the proposed work and improvements to be less than the benefits assessed, and accordingly, on November 19, 1928, approved and confirmed said report.
(7) That no contract for construction of said works of reclamation pursuant to said plans and specifications nor any other plans or specifications was ever let or was any work of any reclamation ever begun nor were any bonds ever issued to pay the costs thereof; that said district has not been dissolved, nor has its Board of Supervisors nor any of the landowners taken any action to dissolve the same.
(8) That plaintiff is the owner and holder of all of the warrants in suit, and that the same are wholly unpaid; that they were severally presented for payment, and payment refused for lack of sufficient funds, which fact was duly endorsed upon the back of each of said warrants, as alleged.
The testimony of the President of the Board of Supervisors was to the effect that he was familiar with the financial condition of the district and that as far as he could determine “the district has no money or property; when the records of the former Secretary-Treasurer were turned over to the Board it showed no property or money in the bank belonging to the Board;” that it has no money in the bank or on hand, or machinery or property of any kind; that a considerable portion of the proposed ditches and drains were located in the area acquired by the Government for a Game Refuge, so that the district‘s plan for reclamation was destroyed and made impossible of being carried out.
Respondents seek to sustain the judgment on the sole ground that the warrants were unauthorized and void because issued in payment of debts which, by law, were payable out of a particular fund that had been previously exhausted, and which the district had no power to replenish; that is, it is contended that the district having levied the maximum uniform tax of fifty cents per acre upon all lands within the district, as specified in
The relevant portions of the statute, supra, together with like portions of
The foregoing sections in reference to sewer districts were construed in State ex rel. Hotchkiss v. Lemay Ferry District, 338 Mo. 653, 92 S. W. (2d) 704, and of them the court en banc said that when considered separately they seem to be in hopeless conflict because a literal construction of the latter would destroy the limitations of the former, but that said sections could be read and construed together and both given effect. And so it was held, by a divided court, that
“It will be remembered that
“To provide for these preliminary expenses
“The principal opinion, as will be seen by reference thereto, stresses certain words in the section, and by so doing construes it as if to read: The board of supervisors may levy not more than 10 cents per square of 100 square feet in the aggregate for the purpose of paying expenses incurred and to be incurred from the organization of the district to the time when the construction of the sewer is authorized or the district is dissolved; and the funds used in paying said expenses can come from no other source than said uniform tax. But in so holding the opinion ignores what I think is the controlling provision of the section, in view of the whole scheme of the chapter. As already pointed out, a considerable preliminary expense, varying in amount with the situation in the particular district, must be incurred in advance. This being true,
“But nowhere does the section provide, as I read it, that the preliminary expenses shall not exceed the 10-cent levy. It merely says the initial flat levy shall not exceed 10 cents per square, and that it is to be used in paying preliminary expenses incurred or to be incurred—it does not say the preliminary expenses or all preliminary expenses.
“Further,
“What good reason could the Legislature have had for desiring to provide that all preliminary expenses of the district should be paid only out of the 10-cent uniform advance levy? Why fix an arbitrary limit at that figure? We know these expenses may greatly vary. In a district composed of large tracts held by comparatively few owners, with a favorable terrain, the engineering work would be far simpler and the number of exceptions to benefit assessments, court trials, sewer lines, etc., would be relatively small. But in a district of large population and difficult terrain containing city and town streets, and sub-divisions and lots with many owners, the work and expense would be enormously increased. Did the Legislature mean to say no sewer district could be established when the area thereof was too small to provide a fund, derived from a 10-cent uniform tax levy, sufficient to meet the preliminary expenses no matter how valuable and thickly populated the area might be, and how great the benefits? No such limitation is apparent in the law. Plainly, the purpose in providing for an advance uniform levy of 10 cents on an area, not a benefit, basis was to furnish a working fund in the beginning which would be available as far as it would go until the benefits could be assessed and special taxes levied and collected.
“No doubt the section meant, if the project was carried out, no levy on an area basis in excess of 10 cents per square could be made to pay preliminary expenses, for in that case the benefit assessment later collected would be available to meet any deficiency. That is reasonable. Taxation on an area basis is not as equitable as taxation on a benefit basis. Equal areas of land in a district might vary greatly in value and in the amount of benefits received. The initial uniform tax was simply an expedient made necessary because many preliminary expenses had to be incurred and paid before the machinery can be put in motion to raise funds on a benefit basis. But that is vastly different from saying, as the principal opinion does say, that no preliminary expenses could be incurred except within the uniform tax of 10 cents per square and that no part of the funds produced by the benefit assessment could be used for that purpose.
“It is argued the construction I am contending for would have permitted the board of supervisors to incur preliminary expenses without limit; but such is not the fact. As already pointed out, by force of
”
“What could be clearer? As a condition precedent to dissolution, all costs incurred, including court costs and all obligations and expenses incurred in behalf of the district by the board of supervisors, must be paid. And not only that: The section says, if the uniform tax levied under the provisions of the chapter be found insufficient to pay all such costs, the board of supervisors shall make such additional uniform tax levies as will be necessary to pay such deficiency. It must be kept in mind that this
“I submit that the principal opinion nullifies the unequivocal provisions of
“Now reverting to the proper construction of
“But concede for the purpose of discussion that
” ‘The law is well settled that, where there is an irreconcilable conflict between two different parts of the same act, as a rule the last in order of position will control, unless there is some special reason for holding to the contrary.’ [State ex rel. Greene County v. Gideon, 273 Mo. 79, 87, 199 S. W. 948, 949.]
” ‘Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part the particular provisions must govern, unless the statute as a whole clearly shows the contrary intention and they must be given effect notwithstanding the general provision is broad enough to include the subject to which the particular provisions relate.’ [59 C. J., sec. 596, p. 1000.]
” ‘Where one part of the statute is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions, and opposed to the other, that construction must be adopted which will render all clauses harmonious.’ [59 C. J., sec. 597, p. 1103.]”
In this view of the matter, further discussion is unnecessary. But there are some other things which should be mentioned. No claim or pretense is made that the warrants in suit do not represent necessary services actually rendered under a valid contract (with the Board of Supervisors whose membership was elected by the landowners themselves), and at reasonable and fair prices. Without such services the district could not have adopted its plan of reclamation, nor taken any of the steps essential to carry into effect its cor-
The district has not taken any steps looking toward corporate dissolution, which may be significant. For, in addition to the section providing for dissolution upon a finding that the damages exceed the benefits, discussed in the foregoing dissenting opinion, there are other statutory plans therefor, one of which (by amendments in 1935 and 1939) provides for dissolution upon petition of the owners of a majority of the acreage of a district, after the adoption of a plan for reclamation, “at any time before the bonds are issued and negotiated“—the very situation in the case at bar. But as in the other section, it also imposes, as a condition precedent, the provision that “all warrants issued and unpaid by it and the amount of the debts and other obligations” be first ascertained and paid, and authorizes the supervisors to levy and collect a uniform acreage tax for that purpose. [
From what has been said it follows that plaintiff is entitled to judgment against the district, and plaintiff having abandoned any theory of liability on the part of defendants other than the district, the judgment in their favor should be, and it is, affirmed; but as to the corporate defendant, Missouri Valley Drainage District, it is reversed, and the cause remanded with directions to enter judgment for plaintiff for the amount of the several warrants sued on, with interest, as prayed.
PER CURIAM:—The foregoing opinion by LEEDY, J., in Division Two is adopted as the opinion of the Court en Banc. Clark, Hays and Ellison, JJ., concur; Tipton and Douglas, JJ., and Gantt, C. J., dissent.
ON MOTION FOR REHEARING.
LEEDY, J.—This cause was transferred to the court en banc upon the dissent of one of the judges of Division II, where it had been heard and determined. Upon reargument in banc the divisional opinion was adopted, in consequence of which certain contentions not made in division, but appearing for the first time in respondents’ supplemental brief in banc, were not expressly ruled. This omission constitutes the basis of the motion for re-hearing filed by the drainage district.
Respondent has cited no cases, nor have we been able to find any, extending the effect of this rule to the mere continuation, without change in terms, of an earlier enacted analogous statute. Moreover, until the opinion in this case was adopted, this court has not held that the drainage and sewer district acts were so closely analogous as to require the same interpretation, so that it cannot be said that the “public and official construction of the statute was widely known,” thus bringing it within Schawacker v. McLaughlin, supra.
The services in question had been performed, and the warrants issued long prior to the Hotchkiss decision. The Kansas City Court of Appeals in Macon County Levee District v. Goodson, 224 Mo. App. 131, 22 S. W. (2d) 651, (decided in 1929) construed practically identical sections of the levee district act as authorizing the additional levy; the court, in an opinion by Commissioner BARNETT, after reciting the substance of the sections, saying, “The statutory authority to levy the additional tax is quite plain.” The Kansas City Court of Appeals is a court of last resort, and, acting within its jurisdiction and not in
Defendant says we “overlooked the history of drainage legislation in this state, and particularly Sec. 5519, R. S. ‘09, as amended by Laws 1911, p. 213, which conclusively shows that Sec. 10759, R. S. ‘29, was not intended to authorize a benefit tax to pay preliminary costs, and that Sec. 10752, R. S. ‘29 was intended to limit the tax to pay preliminary expenses to fifty cents per acre.” The argument proceeds upon the premise that until 1913 “there was but one compulsory tax, a benefit tax, which the benefited landowners were required to pay in proportion to benefits and which, by the express terms of the statute, included organization and administration expenses as well as construction and maintenance costs. [Sec. 6528, R. S. ‘89; Sec. 8262, R. S. ‘99; Sec. 5519, R. S. ‘09, as amended by Laws, 1911, p. 213, so as to provide for a separate maintenance tax]; that in 1913 the entire drainage act was repealed, and another substituted, whereby the former scheme of a single benefit tax to pay preliminary and administration expenses as well as construction costs was changed; that said change was effected through the enactment of what are now Secs. 10752, 10759 and 10789, in that a separate compulsory area tax for the purpose of paying preliminary or organization expenses was provided by Sec. 10752, and a separate compulsory benefit tax “to pay the costs of the completion of the proposed works . . .. as shown in said ‘plan for reclamation’ and carrying out the objects of said district, and plus ten per cent of said total amount for emergencies” was provided by Sec. 10759, and a separate compulsory annual tax for the purpose of paying maintenance and administration expenses was provided under Sec. 10789; that the principal opinion, by judicial legislation, puts back into said Sec. 10759 the provisions of former Sec. 8262, R. S. ‘99 [Sec. 5519, R. S. ‘09, as amended by Laws of 1911] which the Legislature took out by repealing those sections, and enacted Secs. 10752 and 10759.
But defendant, in its argument, ignores the fact that prior to 1913 and while Sec. 5519, R. S. ‘09, was still in force and effect, there
We have examined the other grounds of the motion, and think they are sufficiently answered by the opinion itself. The motion for rehearing is overruled.
LEEDY, J.