Egypt and Cherry Valley Townships in Carroll County, Missouri, political subdivisions of the State of . Missouri, have appealed from general judgments rendered against them by the Circuit Court of Saline County on tax bills for delinquent drainage taxes for the years 1922 to 1926, both inclusive, assessed by the Board of Supervisors of the Norbome Land Drainage District Company of Carroll County, Missouri, a public corporation, against the public highways in said drainage district located in said townships, and for penalties and attorneys’ fees. A separate suit was- filed against each of said townships and the venue changed to Saline County where the suits were consolidated and tried together and are so treated here. We have jurisdiction because defendants are political subdivisions of the State within the meaning of Section 12, Article VI, of our State Constitution. [Drainage District v. Trail Creek Township,
The petitions were in the usual form employed in suits on tax bills except that general judgments against the townships were sought. The answers contained general denials and matters of special defense, ome of which are among the grounds urged in these appeals.
Upon the trial it was “agreed that Carroll County is, and was at 11 times covered by these tax suits, under township organization,” nd that defendant townships were legally organized congressional *1206 townships in said county. Plaintiff introduced the tax bills and the drainage tax books for the years 1922-1926,- both inclusive, and having made a prima-facie case under the express provisions of Section MOO, Revised Statutes 1919, rested. Thereupon defendants offered demurrers to the evidence, which were overruled. However; defendants did not stand on their demurrers, but introduced in evidence the articles of association and decree of the Circuit Court of Carroll County of May 12, 1899, incorporating plaintiff drainage district; the articles of association for the re-organization of said district under the provisions of the Circuit Court Drainage Act of 1913 (Laws 1913, p. 232'), and the notice of such re-organization; the report of the commissioners assessing benefits to the lands in the district and the public highways therein, and particularly that part assessing benefits to the highways in.defendant townships, and the notice of the filing of the commissioners’ report affecting lands in Carroll County; and the decree modifying and confirming the' report of the commissioners.
After introducing the above mentioned articles, notices,, report and decrees, defendants offered the exceptions filed by Carroll County, Missouri, to the report of the commissioners assessing benefits against the highways in the district, which evidence, on objection, was ruled inadmissible. Defendant then offered, over the objection of plaintiff, the petition filed in the Circuit Court of Carroll County against Carroll County for the collection of the same taxes herein sued for, less the penalty since then accumulated. The tax bill in said suit was also offered. The Recorder of Deeds of Carroll County identified the drainage tax record of the district, being the record levying the total tax under the provisions of Section 4394, Revised Statutes 1919, against the lands, public highways and other property, from which it appears that, opposite the detailed description of the highways in the district and in the column headed “owner of property assessed” are the words “Carroll County, Missouri.” The Treasurer and ex-offieio Collector of Carroll County testified that the delinquent taxes for the years 1922 to 1926, both inclusive, were certified to him by the secretary of the board of supervisors of the district, and he produced the certificate showing that the name Carroll County, Missouri, appeared in the column headed “owner of property assessed,” and that same had been stricken through and the names of the several townships in the district substituted, but witness did not know who made the change; that witness did not make demand upon either of the defendant townships for the taxes against the public roads herein sued for until the latter part of 1927, and that said demand was oral; that witness prepared and signed the tax bills sued on at request of the attorneys for the district, and that the taxes in suit were the same, except as *1207 to the penalty sued for, as in suit against Carroll County which was dismissed in October, 1927. One of the trustees in Egypt Township was offered for the purpose of showing that certain highways in the townships had not been maintained by the townships, but had been marked as state highways. The offer was refused. Defendants then asked leave to produce the highway records of the State Highway Department to show that the State had designated highways in defendant townships in plaintiff drainage district as state highways, which evidence was never introduced. Defendants then renewed their objection to the introduction of the tax bills sued upon, and rested, with the request that the cases be continued to the next term of court in order that they might ask certain declarations of law. At the next term plaintiff, over the objections of defendants, introduced evidence as to the reasonableness of attorneys’ fees asked for in said suits. Thereupon defendants asked, and the court refused, certain declarations of law, but -made a special finding of facts as requested by defendants, finding the issues for plaintiff, to which finding of facts defendants excepted. Judgment Was thereupon rendered for plaintiff in the ease against Cherry Valley Township in the total sum of $1290.87, of which amount the sum of $168.37 was allowed as attorneys’ fees, together with a penalty of two per cent per month on $679.84 thereof from the 1st of October, 1928, and six per cent interest per annum on the remaining amount. In the suit against E'gypt Township, judgment was rendered in the total sum of $2715.06, of which amount the sum of $226.35 was allowed as attorneys’ fees, with a penalty of two per cent per month on $1509.03 from October 1, 1928, and interest at the rate of six per cent per annum on the remaining amount of the judgment.
Counsel for appellants first insist that respondent was without power to levy any taxes against the highways in defendant townships, because (a) the townships were not made parties to the proceedings creating the district or named in the articles of association as the owners of any land or other property in said district as required by Section 4378, Revised Statutes 1919; (b) the highways were not described in the articles creating the district as required by Section 4378, Revised Statutes 1919; (c) the townships were not given notice of the proceedings creating the drainage district as required by Section 4379, Revised Statutes 1919; and (d) the townships have never been accorded a hearing on the question of benefits to the highways, and hence, appellants say, they have never had their day in court.
The evidence shows that respondent drainage district was originally incorporated by decree of the Circuit Court of Carroll County, *1208 Missouri, on May 12, 1899, under the provisions of Sections-6517 to 6529, both inclusive, Revised Statutes 1889. This law contained no provision for the assessment of benefits against public highways, nor did it contain any definition of the word “owner” which frequently appears therein. Consequently, neither the public highways existing within respondent’s boundaries at the time of its incorporation nor the owners thereof were described, as such, either in the articles of association or in the final decree of incorporation. In this situation it was obviously unnecessary to so describe the highways and owners or to make defendant townships parties to those proceedings. In fact, it does not appear from the record before us that Carroll County was then under township organization. Subsequently, on January 12, 1917, this drainage district was reorganized under the Circuit Court Act of 1913, Laws of 1913, pages 232 to 267, now Article 1, Chapter 28, Revised Statutes .1919. Section 53 of this act, now Section 4429, Revised Statutes 1.91.9, provided that the articles of association in such re-organization should “state that the boundaries of the district will be the same as the boundaries of the present organization and that the description of the land and other property and the owners thereof are such as are described in the present record of the district as now organized” etc. The notice for the hearing of the petition for reorganization ran, “To all of the owners of land and other property in” the named district, in substantial compliance with Section 54 of the Act of 1913, now Section 4430, Revised Statutes 1919, governing the same. Section 4379 mentioned in appellants’ objection (c) does not apply to reorganization proceedings. Section 39 of the Act of 1913, now Section 4415, Revised Statutes 1919, defined the word “owner” thus:
“The word 'owner’ as used in this act shall mean the owner of the freehold estate, as appears by the deed record, and it shall not include reversioners, remaindermen, trustees or mortgagees, who shall not be counted and need not be notified by publication, or served by process, but shall be represented by the present owners of the freehold estate in any proceeding under this act.”
There is ho evidence in the record before us that either of defendant townships had a freehold estate in any of the public highways in this drainage district. Hence, they were not owners within the meaning of the act, and we have not held -to the contrary in Drainage District v. Bates County,
‘ ‘ After said notice has been so given the matter shall be proceeded with in the same manner as is provided for where articles of association for the formation of a drainage district have been filed.”
*1209 It follows, therefore, that neither in these articles of association nór in the final decree of reorganization, which could be no broader, was it necessary or proper that any public highways or owners thereof be described, as such, although from paragraph 4 of stipulation filed and records admitted in evidence it appears that in the articles of association, in the notice for the hearing of the petition,- and in the decree, both in the proceedings of 1917 and those of 1899, the various tracts of land included in the district were described opposite the names of the owners thereof without excluding therefrom any of the land over which public highways ran, so that in fact all lands embraced within • the district and proposed to be affected thereby, including land upon which then existing public highways were located, were described and ownership of the freehold estate of the respective tracts ascribed to named owners there so appearing by the deed records. This, was a sufficient designation of ownership under above Section 39. Appellants’ above objections (a), (b) and (c) are overruled.
So much for the first three grounds urged in support of appellants’ contention that the respondent was without authority to levy any taxes against the highways in question, leveled as they are solely against the original proceedings incorporating the -district in 1899 and the reorganization proceedings that culminated in the decree of January 12, 1917. But respondent does not claim that these proceedings alone would have authorized the issuance of the tax bills. It appears from the record of the decree of the Circuit Court of Carroll County réndered December 23, 1919, modifying and approving the commissioners’ report filed in the office of the clerk of said court on December 26, 1918, which defendants introduced in evidence, that on December 5, 1917, and before any commissioners were appointed to assess damages and benefits on property in the district under said re-organization decree, the board of supervisors of said district filed a petition in said circuit court for an extension of its boundaries which resulted in a deerée rendered August 12,-1918, extending said boundaries, :and on the same day a board of commissioners was appointed to assess damages and benefits to property in the district as extended whose report was modified and approved in said decree of December 23, 1919. Thus, in the last analysis, the validity of these tax bills in the respects above questioned depends upon the validity of the proceedings had after the reorganization decree of January 12, 1917. ¥e say this because prior thereto no 'effort had been made to tax highways, and because Section 40 of the Act of 1913, as it stood until 1919 and which with some changes is now Section 4416, Revised Statutes 1919, among other things relative to the extension of boundary lines of a drainage district, provided' as follows (italics ours) :
*1210 “If such petition- asks the court permission to change ‘the-plan for reclamation;’, or that the boundary- line’s- of such-district be in any manner- cha/nged, it shall .also-.ash the-court to appoint three commissioners as provided for under--the provisions of s’ection 12■ to appraise the land that shall be: taken for rights óf way, holding basins, or other works, or" assess the benefits aúd- damages to any or dll' lands, public highway’s; railroad and--other property already in the. district or that may be -annexed 'to' the district by the proposed-amendments-, and changes to I the plan-for reclamation’ of the pro.-posed change in the b'ownda/i'y linés-iof-said-district.’’ ■
Section 40 also ¡indicated the ¡exact-^procedure.’to be followed in extending the -boundaries'*of -a-drainage-'district: Defendants- did-, not offer- in evidence-.-any-- record -of -these -proceedings, -and-as the1 defenses--presented--.-in-the-.'instant '-suits are- in the nature-of col-lateral- attacks- (State ex rel. McBride v. Sheetz,
*1211
*1210
We'think appellants’- objection , (d) is-'-also without merit. - .It, is pressed as though.- a constitutional iquestion' were -involved,; but
*1211
if one was raised it has not been properly preserved and, .hence, cannot be considered here. ' However, we may say that counsel’s contention that defendant townships "have in no manner been summoned into court, have been accorded no hearing on the question of benefits to the highways and have never had their day in court,” apparently rests on a misconstruction of our decision in the Trail Creek Township ease, supra,, because in discussing objection (a) they say we there ruled "that in countiés where township organization exists the public roáds, for purposes of taxation under the Circuit Court Drainage Act, are the property of the townships; that in counties with no township organization the roads are the property of the counties. ’ ’ The question of ownership of highways was neither raised nor ruled in the Trail Creek,. Township case. ' The township was there held liable for the drainage taxes levied against highways within its bounds, not on the theory that it owned’the highways (under the pleadings it did not), but solely on the ground quoted from the opinion in Drainage District v. Andrew County, 278 S. W. (Mo. Sup.) 387, that "benefits should be paid for by the party whose duty it is to keep up the public improvement. ’ ’ In the instant suits there was, no evidence ’ that defendant townships held any highway rights, titles or ease1 ménts. Section 10627, Revised Statutes 1919, relative to establishment of public highways provides that relinquishments of rights of way shall be made to the county ’ and filed in the office of the County Clerk and in the office of the Recorder of Deeds, and the presumption here would be that owners of the fee adjoining the' highways owned to the center .thereof subject only to highway rights, acquired and held by the county in trust for the public. ‘ Thg record shows, as above stated, that Carroll County was named as owfier, of the highways in the report of the commissioners assessing damages'' and benefits and in the final decree modifying and approving the' same, and Carroll County appeared in response to, the notice of the filing of said report, filed objections, was heard..thereon and in said ■ final decree allowed a reduction in the benefits assessed. Appellants are, therefore, in no position to maintain their objection (d)7 Indeed, this contention is clearly bottomed on a misconception, of the legal relation existing between political subdivisions of the State and public highways situated therein. On this point We said in State ex rel. v. Drainage District,
"In opening, vacating, improving, repairing and dealing with the public highways, the several counties and the county courts thereof, ’ are but agencies, or agents of the State; acting from the very neces- ’ sities of the cause by delegated authority.”
In Drainage District No. 1 v. Bates County, 216 S. W. (Mo. Sup.) 949, 953, on the question of. notice in connection with the assessment of benefits to public roads, we said:
*1212 “This being a tax against the public or the State, although payable by the county, ho special notice of the proceedings to the State or county was necessary. The only notice necessary is t'o the, private persons, and not to the public, which really institutes the proceedings in such cases. The State can tax itself or the county, without any proceedings whatever, by a mere mandate of the statute. The Legislature could have provided that the State or county should pay one-half, or any part, or all of the cost of a public improvement, without more, and. no provision of the state or federal Constitution would have been violated. It was not a constitutional necessity that either the State or county be a party (in the. usual sense) to, or have special notice of, the proceedings to establish the cost, or dp the work, or make assessments, therefor. That was a matter wholly within the province of the Legislature. Both the State and county and the public had all the notice in this case required by the statute, and that was-sufficient.”
Appellants’ above objection (d) is overruled.
Appellants next assert that, “The assessments in these cases, having been made in the name of Carroll County, are void because made in the name of one not the owner of the property assessed.” .This claim also grows out of the misconceptions above no't-ed-. Defendant townships, as already indicated, were in no sense owners of the public highways. On the other hand, Carroll County. was entrusted with the .public’s right, title and interest therein for highway purposes and evidently in that sense it was designated as the owner. However, appellants do not refer us to any provision of this Drainage Act, now Article 1 of Chapter 28, Revised Statutes 1919, requiring that these taxes be
assessed to and levied against the owners
of the .land and we find no such provision. On the contrary, Section 4394, Revised Statutes 1919, reads, (italics ours) : “.The said tax shall -be,
apportioned to and levied, on each tract of land or other property in. said district
in proportion to the benefits assessed and not in excess thereof,” etc. Appellants rely upon our ruling, in Abbott v. Lindenbower,
Appellants insist that respondent is estopped' to claim of them the taxes, penalties and attorneys’ fees herein sued for. They urge as ground of estoppel' that respondént assessed said taxes' to Carroll County' and upon the refusal of said county to pay them the 'district filed suit therefor against said county, and by reason of this action defendant townships were induced to change- their position to their detriment. The fact that the district may have sued the wrong person did not, of course, prevent it from dismissing the suit and suing the right person, and defendant townships were not led to any injurious’ action on their part by the fact that they were not sued. Nor does it appear that any act - of plaintiff has induced defendants to alter their position to their disadvantage. The defenses vigorously interpbsed in the present suits are inconsistent with the idea of any voluntary payment of these taxes by defendants. This contention' is likewise rule'd against appellants. • ' ' '
Appellants also say that the present suits were barfed 'by Section ^400, Revised Statutes 1919, because not brought1 with-in six. months after the taxes wefe delinquent: The pertinent clause of this statute is as follows:
‘ ‘ The liens established and declared in the preceding sections may and shall be enforced by an action on delinquent tax bills, made and certified by the county collector, which action shall be instituted in the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied.” ' '
In Drainage District v. Bates County,
“The said tax shall become delinquent if not paid on or before the thirty-first day of December of ■ each year and when so delinquent, shall bear interest at the rate of one per cent per month until paid and the collector shall bring suit for- all delinquent assessments or installments thereof and interest thereon within six months after an' assessment or installment thereof becomes -deliiiqúent.” ’
Construing the above language we there (p. 91) said: *1214 .more pointed in their language. It is. eyident that there was ho intent to bar the action at the end of six months. It is more ■ in the, way of a direction.to the collector, .than, it is. a statute of limitation. ”
*1213 “It is urged because this portion of Section 5599, above 'quoted, says the collector shall bring suit within six months,' that theiefore the action is barred after that time. The words should not be so construed. The statute does not say the action shall be barred. Had the law-makers intended so harsh a thing, they would have been
*1214
, The above construction ,was .followed in, State ex rel. McBride v. Sheetz, 279 Mo, 429, 439,
“The liens established and declared in the preceding sections may and shall be enforced by a,n action on delinquent tax bills, made and certified by the county collector, which action shall be instituted iji.the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied.”
We agree with the conclusion there expressed (p. 371) that the aboye section and Section 5599, Revised Statutes 1909, deal with practically the same subject-matter and there is no apparent reason th^t would require a different meaning. It does not appear from the reasons advanced by appellants that the construction heretofore giygn, and .relied upon for so many years should now be abandoned.
Appéllants also contend that the trial court erred in rendering judgment for penalties, citing 37 Cyc. 1544, where it jg gaj¿.
.. “The.courts will not enforce a penalty against the taxpayer where h,e makes a good defense against, its imposition or shows a legally sufficient excuse for the delinquency. charge. It is held a sufficient ground for refusing to enforce the penalty that the officers did, not give the taxpayer the notice or demand to which he was entitled; that the tax was illegal or illegally levied.”
„ Appellants have not shown that the tax was illegal or illegally levied, and in St. Francis Levee District v. Dorroh,
, “All taxes-provided: for-in’this article remaining unpaid’after December- 31st of the-year: for-which said táxes were levied shall become delinquent and-bear. >a-penalty of--two ■ per-cent per month on. the amount of. said taxes': from -date of: delinquency until paid. In: computing-said, penalty each fractional- part'of a month shall be-counted -as a full month;” ‘ .- , -,?-.!. ¡'
;..,.In 26 Ruling Case-Law, page 385,- it is said that “it is generally held that one who: in good faith -.contests- his liability to the -tax and delays -payment beyond the allotted-time- during the pendency of the litigation is liable for the penalty--if the-.decision‘is adverse.” An erroneous assessment -is not a good excusé for non-payment of the proper amount. [37 Cyc. p., 1545, n. 77.] 'Waiver of a--penalty may not be-implied from a-failure seasonably to- .demaind it. [Ferguson v. Pittsburgh, 159 Pa. St. 435,
¡ Appellants í also complain of- the action,, of - the -court; in ■ hearing evidence as to the: reasonable value; of' attorneys’ fees at its September- Term iwhen, the case was heard and ’argued at- the preceding May Term. -This’ is-:-a -matter-.within,-.-the sound discretion of the court- an¡d- appellants have, not shown that this discretion was -abused, -Appellants themselves had asked that-the case be continued! to? the-September-Term in .-order that they might prepare and offer ".declarations of law.- ‘ When ¡-the evidence on attorneys’ fees was heard, appellants- did--not -ask the, court for further- time to secure evidence on-this-point, -nor .do,¡they now claim that the fees allowed are excessive. ;
Appellants next say that their demurrers to the evidence offered at the close of all the evidence should have been sustamed because:
(a) A valid and legal assessment against defendants was not shown.
*1216 (b) If plaintiff made a prima-faeie case it was overturned when defendants showed that the tax bills were not based on a valid assessment.
(c) There was no -proof of demand provided in Section 4396, Revised Statutes 1919.
Point (a) rests upon the objection, previously made and herein-above discussed, that in the assessment of damages and benefits Carroll County was referred to as the -owner of the highways in question. rePeaV if any person can be said to own the public highways, aside from abutting feeholders, it would be Carroll County to which all right of way relinquishments are presumed to have been made. On this theory the jurisdictional requirements of the drainage act were fully met. Furthermore, as we have already suggested, counties and townships are but agencies of the State, and this being a tax against public or state improvements, no special notice to such agencies was necessary because these proceedings were really instituted by the State. [State ex rel. v. Drainage District,
Appellants also say: “The petition is fatally defective and the evidence is insufficient because there is no allegation or proof that the townships had knowledge of the assessments against the highways.” In the light of the provisions of Sections 4390, 4394 and 4416, and the commissioners’ report, notice of the filing thereof, and the decree modifying and approving the same; referred to in. the petitions and heretofore fully discussed, this contention is ruled against appellants. ■ ’
■ Appellants complain that they were not permitted to prove that part of highways in the district were maintained by the State Highway Commission. The record shows that they asked and were given leave to produce records of the State Highway Department bn this point, but such records were never produced or offered in evidence. They were necessary to show that the roads had been taken over by the State. [State ex rel. v. State Highway Commission,
Finding no reversible error in the record presented for our review the judgment of the trial court is affirmed.