216 Mo. 215 | Mo. | 1909
On December 28, 1900, the State of Missouri, at the relation of F. D. Brown, collector of the revenues of Lincoln county, instituted this suit in the circuit court of that county, against the defendant, to recover certain special taxes due the Cap-AuGrris Drainage and Levee District, situate in Monroe township of said county, organized and existing under and by virtue of article Y of chapter 122 of Revised Statutes of 1899.
The petition contained five counts, each based upon separate installments of taxes due.
There was a change of venue taken and the cause was sent to the circuit court of Pike county, where a trial was had without the intervention of a jury, which resulted in a judgment for defendant upon the first three counts and in favor of plaintiff on the remaining two. In due time each party filed his motion for a new trial, and, both being overruled, each appealed to this court.
The petition at great length and with great particularity states that the defendant and some thirty-five or more persons, owning about 3,500' acres of wet and overflowed lands in said township, were desirous of forming a drainage and levee district in order that the lands might be reclaimed from the waters; that in pursuance thereof they filed in the county court of said county a petition asking that they be incor
The answer, omitting formal parts, is as follows:
“Now comes defendant, A. C. Wilson, and for answer to plaintiff’s petition filed in this cause and each and every count thereof, denies each and every allegation in said petition and each and every count thereof contained.
*235 “Defendant further answering’ plaintiff’s petition and every count thereof says that no sum has at any time been due upon plaintiff’s said petition nor any count thereof, but that if any sum was at any time due upon the account sued on in this cause or in any count thereof the same accrued, was due. and plaintiff’s right of action accrued thereon more than five years before the filing of his petition herein; and plaintiff’s cause of action and every count thereof, if any he ever had, was barred by the Statute of Limitation before the institution of this' suit, and defendant pleads said Statute of Limitation as a special defense to plaintiff’s petition and every count therein and to this cause of action.
“And defendant further answering says that no sum has at any time been due plaintiff from defendant herein upon the account and causes sued on herein, but that if any sums were at any time due thereon the same were for taxes against the real estate in plaintiff’s petition described and that the said taxes, if any were at any time due thereon, were delinquent on the first day of July, 1895, the first days of January and July, 1896-, and the first days of January and July, 1897; that plaintiff’s action herein was commenced on the 24th day of November, 1902, and plaintiff’s said action was not commenced within five years after said taxes became delinquent and that plaintiff’s cause and right of action is therefore barred by the Statute of Limitations applicable to the collection of taxes on real estate, and defendant pleads said Statute of Limitation as a bar to plaintiff’s petition and every count thereof and as a defense herein.
“And for his first special defense to the fifth count in said petition says that the sum therein sued for and sought to be charged against defendant’s lands as a special lien is a part of a second assessment made in said Cap-Au-Gris Drainage and Levee District matter and was made upon the application and supple*236 mental report of the commissioners of said district presented to the county court of Lincoln county at the November term, 1897. That prior to the making of said second assessment, to-wit, at the-— term of said county court of Lincoln county, for the year, without notice.
“That said second assessment, a part of which is sought to be .collected in said count, was made without notice-to defendant, and. defendant says that the Legislature of the State of Missouri had no right or warrant under the Constitution of the State to authorize or empower the making of such second assessment without notice to defendant, as was done in this instance, inasmuch as the making of such second assessment without notice is the taking of defendant’s property without due process of law and the taking of private property for public use without compensation, in violation of Federal and State Constitution above mentioned and referred to in defendant’s first special defense to said fifth count. "Wherefore, the defendant says that said second assessment is null and void, and he asks judgment on said count for the reasons and cause herein stated.
“And the defendant for a third special defense to said fifth count says that the amount therein sought to be collected is an installment or part of a second assessment made in said Cap-Au-Gris Drainage and Levee District matter upon the application and report of the commissioners thereof, filed in the county court of Lincoln county, at the November term, 1897. That said commissioners in their said application and report asked for the making of said second assessment for the purpose of paying debts already contracted by them in excess of the first assessment made therein by the county court of Lincoln county, to the amount of ten thousand, eight hundred and ninety-nine and 73-100' dollars. That prior to the making of said second assessment the said commissioners had without order*237 or authority' from any court or judge thereof contracted debts to the amount of ten thousand eight hundred and ninety-nine and 73-100 dollars in excess of the aggregate first assessed by said county court against all of the lands in said district, and that said second assessment was made upon their application for the payment of such debts so contracted by them as aforesaid, in excess of the said first assessment. And defendant says that said commissioners had no authority or warrant of law to 1894, there was ordered and made by said court a first assessment in said levee matter against the lands of this defendant on account thereof. That said first assessment so made by said county court in 1894 was for a sum equal to and covering the entire net benefits found and ascertained by the .commissioners theretofore appointed which the lands of defendant would receive on account of such levee and drains, and that subsequent to the making of said first assessment and prior to the making of said second assessment no other or additional benefits have been found or ascertained to the defendant’s lands. That all the benefits found to defendant’s lands were exhausted and covered by said first assessment and that said second assessment was not made or predicated upon benefits to defendant’s said lands and to the extent thereof is an assessment without benefits, null and void and amounts to the confiscation of defendant’s property and the taking of same without due process of law in violation of the provisions of section one of the Fourteenth Amendment to the Constitution of the United States, and in violation of section thirty, article two of the Constitution of the State of Missouri. And is the taking of private property for public use without just compensation, in violation of article five of amendments to the Constitution of the United States, -and section twenty-one, article two of the Constitution of the State of Missouri. Wherefore defendants ask judgment on said fifth count.
*238 “Defendant for a second special defense to said fifth count says that the amount therein sued for is a part of a second assessment and supplemental report of the commissioners appointed therein. That the proceedings under which said Cap-Au-Gris Drainage and Levee District was attempted to be established was the act of the General Assembly of the State of Missouri for 1892, approved April 1, 1893, and found in the Laws for said year, beginning at page 188, and that the only authority or power for the making of said special assessment is found in section twenty of said act. That said section provides that such second assessment may be made under the order of the court or the presiding judge thereof; section 21 provides that the commissioners may not contract debts on account of said district in excess of assessment already made, and that the acts of said commissioners in so contracting said debts in excess of assessments made was ultra vires and void, and being void and without authority, the act of the court in making said second assessment to pay for same is also void and without authority and contrary to section 8338, Revised Statutes 1899. And having fully answered asks to be discharged with his costs.”
The reply, omitting formal parts, is as follows:
“Now comes the plaintiff and replying to the answer of defendant hereinbefore filed denies each and every allegation of new matter therein contained in each and every count of said answer not hereinafter specially admitted or otherwise pleaded to.
“And plaintiff replying to the first special defense of defendant to the — count in plaintiff’s petition admits that the sum sued for in said count and sought to be charged against defendant’s land as a special lien is a part of the second assessment made in said Cap-Au-Gris Drainage and Levee District and was made on the application and supplemental report of the commissioners of said district, presented to*239 the county court of Lincoln county, Missouri, at its November term, 1897, after being' fully heard by the court on said report and the remonstrances of defendant et al. But the plaintiff says that defendant ought not to be permitted in this court to make the defense sought to be made by his special defense to this court for reasons as follows: But plaintiff claims said assessment was made without notice to defendant.
“On the 18th day of October, 1893, there was filed in the county court of Lincoln county, Missouri, of said court, at the time having original jurisdiction of such matter, a petition signed by divers and sundry persons and among them this defendant, praying the court for the organization of a drainage district in Monroe township to be known as the Cap-Au-Gris Drainage and Levee District; that said petition was presented to the said court on said October 18, 1893, asking the organization and incorporation of said Cap-Au-Gris Drainage and Levee District, fully setting out the boundaries of said district, praying for the construction and execution of certain work therein fully set out and for the appointment of commissioners for that purpose as provided for by the provisions of an act of the General Assembly, entitled, ‘An Act to provide for the organization of Drainage Districts and for the construction and maintenance and repair of ditches and levees in certain cases, ’ which said act was approved April 1, 1893, and that said petition, as aforesaid, was signed by defendant herein. That said county court permitted the filing of said petition, appointed commissioners in compliance with the prayer of said petition, and that afterwards, to-wit, the commissioners appointed by the court, having duly qualified, went upon the land and examined the same, made estimates and under the provisions of the law made their report; that all notices required by law were given by the county court, and that afterwards by a judgment of the county court of Lincoln county, said county court*240 at the time having complete jurisdiction of the subject-matter and the parties to the action, the report of the commissioners was confirmed and the prayer of the petitioners was granted, and the said Cap-Au-Gris Drainage ánd Levee District by order and judgment of the county court was established, organized and created, and the assessments for benefits and damages as reported by the commissioners was confirmed, and assessments duly and legally made by the said county court in its said judgment, a part of which said assess^ ments so made and assessed, as aforesaid, are sued for in this action. Plaintiff therefore says that the said drainage and levee district having been organized and created with its present boundaries, and these assessments having been made at the request and on the petition of the defendant, that he is and ought to be forever estopped from making the defense in this special defense pleaded.
“Plaintiff replying .to defendant’s second special defense to-count of plaintiff’s petition admits that the amount sued for in this count is a part of the second assessment made in said levee district upon the application and supplemental report of the commissioners appointed therein, after being fully heard and adjudicated by the court on said petition and a written remonstrance thereto signed by defendant and others; admits that the proceeding in which said Cap-Au-Gris Drainage and Levee District was attempted to be established was the Act of the General Assembly of 1893, and approved April 1, 1893, but says that defendant ought not to be permitted to make the defense he attempts to make to the assessment sued for in this count of plaintiff’s petition because the said levee district was organized and established by the county court of Lincoln county, by its order and judgment after proceedings regularly had, and that the said order and judgment of the county court, which had jurisdiction of the subject-matter and the parties thereto at the*241 time it established said district and organized and established said district at the request and on the petition of the defendant, which said request and petition of the defendant was in writing and signed by the defendant, and filed in the county court of Lincoln county on the 18th day of October, 1893, and which said request and petition of defendant prayed the court to establish said district as it was established by the judgment and decree of said court and to make such assessments as were necessary to do the work in said petition described and to make the assessments in plaintiff’s petition sued for in this case. Plaintiff therefore says that the judgment and decree of the county court of Lincoln county, establishing said district and making the assessments therein provided for, having been made at the request and on the written petition of the defendant, that he is estopped and should be estopped from making or attempting to make the defense he seeks to make in his second special defense to said--count of plaintiff’s petition.'
“And plaintiff replying to the third special defense to the - count of plaintiff’s petition admits that the amount sought to be collected is an installment or part of the second assessment made in said Cap-AuGfris Drainage and Levee District matter upon the application and report of the commissioners thereof, filed in the county court of Lincoln county at the November ■ term, 1897. But plaintiff says that said assessment was made by the county court of Lincoln county upon the application and request of the commissioners of said district, and that said commissioners represented all the parties who own land in said district in official capacity, and that said commissioners on said day filed their report in the said county court asking that an additional assessment be made for the purpose of paying for the work done in said district, under the authority of the judgment of the county court hereto*242 fore named, and at the request of the commissioners of said district, and also asked and prayed for an assessment necessary to complete the work in said district and to repair the levees, drains and ditches already made; that a remonstrance was filed in said court, and that defendant signed said remonstrance protesting against said additional levy, and that the report of the commissioners, together with the remonstrance signed by the defendant, came on to be heard in said county court and issue was joined thereon, and was by the county court heard and fully determined, and that the said county court heard the petition and remonstrance and the evidence introduced by both parties, by its order and judgment made an assessment of ten thousand, eight hundred and ninety-nine and 73-100' dollars; that the said court at the time it heard said report and remonstrance had complete jurisdiction to hear and determine the same, and did hear and determine the same and enter its, judgment; that certain parties in said district, who, with defendant, were remonstrators, filed their affidavit in appeal, and the judgment and finding of the county court of Lincoln county was appealed to the circuit court of Lincoln county; that the said circuit court had appellate jurisdiction to hear and determine the said cause; that the said cause was regularly docketed and at the spring term, 1898, of said Lincoln County Circuit Court the cause came on to be heard before the said circuit court, and was tried de vovo by the said circuit court, and that on the — day. of — —A. D. 1898, the said circuit court, having heard said cause on the report of the commissioners and remonstrance and all the evidence introduced and the argument of counsel, and having at the time the full and complete jurisdiction of the subject-matter and the parties thereto, made and entered of record its judgment assessing the amount against the defendant’s land in plaintiff’s petition sued for and in defendant’s third special defense complained of. Plain*243 tiff denies that said assessment was made without notice to defendant. Plaintiff therefore says that defendant ought not to be permitted to make this defense in this court at this time; first, because the said assessment was made at his request and on his petition to the county court of Lincoln county; and, second, because the matter ,.complained of in defendant’s, special defense was fully adjudicated by the county court of Lincoln county, and also by the circuit court of Lincoln county, which said court at the time they adjudicated the same had full and complete jurisdiction so to do, and that the said judgment of the said circuit court and of the county court of Lincoln county, so far as defendant is concerned, not being appealed from, was final, and that the matter therein heard and determined was the matter and things herein complained of by defendant in his third special defense, and that the interested parties then were the same parties that are interested now; that the defendant herein had the same interest at that time as he now has and was fully cognizant of the proceeding had at the time. Plaintiff therefore says that the matter and things complained of by defendant in his third special defense and sought by him to be adjudicated in this proceeding have heretofore in the circuit court of Lincoln county, and in the county court of Lincoln county, been fully and finally adjudicated and determined by the judgment of the said circuit court and county court, rendered at the time heretofore stated, and the said judgment not being appealed from is. final and the defendant is bound thereby; and having fully replied to defendant’s answer, plaintiff prays judgment in accordance with the prayer of the original petition in this case filed.”
In the circuit court this and two other cases were tried together. The petition in each contained from two to five counts. There were judgments rendered upon all of the counts, some of which were in favor of the respective plaintiffs, and the remainder were in
On account of the multitude of facts involved and the numerous legal propositions presented, it is absolutely necessary for a proper understanding and determination thereof that an extended statement of the testimony be set out, which consists largely of record and documentary evidence.
"While a separate opinion must be written in each case, yet most of the issues of law and fact are common to all, and by disposing of the issues common to all in this case, the labor and opinions in the three cases will be greatly shortened.
It may be we have incorporated in the statement of this case some of the evidence which pertains exclusively to one or both of the other two cases which were tried with this one. The bill of exceptions which contains the evidence introduced in all three of the cases nowhere discloses from the offer what specific evidence was introduced in each of said cases, consequently we were compelled to go through this voluminous mass of testimony and select as best we could the evidence which was introduced in each case; and wherever reasonable doubt existed as to whether it was introduced in this case, we incorporated it instead of excluding it from the statement, knowing that it would have no prejudicial effect upon the merits of the case by so including it.
In the year 1893 there were about 3,500 acres of wet and overflowed lands in the Mississippi river bottom, near the towns of Winfield and Cap-Au-Gfris, Monroe township, Lincoln county, which were rendered practically worthless by reason of their overflow. Some of'the owners, including defendant, being desirous of reclaiming the lands, prepared and filed in the county court the petition mentioned in the pleadings in this case, praying for an order incorporating Cap-
That on the 5th day of April, 1894, they began to examine the said premises or lands described in the petition proposed to be drained and protected and the land over or upon which the work is proposed to be constructed, or proposed to be improved, which said premises are hereafter described, decided that the said body of land containing about 3,500 acres of land in the Mississippi bottom in said county of Lincoln, contiguous to the towns of Cap-Au-Gris and Winfield, in township 49 north, range 2 and 3 east of the 5th P. M., and owned by plaintiff and some thirty-five others, naming all of them, could be reclaimed. Then follows a long and minute description of the district, ditches and levees to be constructed, together with the name of the owner of each and every tract of land embraced therein and the number of acres in each tract. The probable cost of the completed work, including incidental expenses, damages and cost of procedure, will be $12,247.17. The probable cost of keeping the proposed work in repair after completion will be $800 per year.
This is the record in full as it appears in the record to this point. The remainder of the record gives the individual person or persons who own the differ
A. C. Wilson: That A. C. Wilson owns 26.95 acres, being lot No. 7 of Survey No. 1653, and that the whole of said lot will be reclaimed and benefited to the amount of $100 and that amount is so assessed.
That A. C. Wilson owns 161.40 acres, as being lot No. 8 of Survey No. 1653, and the whole of said lot will be reclaimed and benefited to the amount of $650, and that amount is so assessed.
That A. C. Wilson owns 86.65 acres of land, known as the Riffle tract, and lying in Surveys Nos. 1653 and 1756, adjoining and north of the town of Cap-Au-Gris, and that said Wilson will be damaged to the amount of $47.75 for one hundred feet of right of way across said land, and that the said land will be reclaimed and benefited to the amount of $303.25, and leaving a balance of benefits of $255.50, and that amount is so assessed.
And your commissioners would further report that the plan of improvement as specified herein is entirely feasible and that in the opinion of your commissioners the land within the limits of said district will be securely protected from overflow, so as to render them exceedingly valuable for agricultural purposes, and that the benefits bestowed on said district will in the judgment of your commissioners increase the value of the lands in said district on an average of from $25 to $30 per acre.
Attached to said record was the conveyance of the right of way by James N. Dney, M. T. Kimberly, Lncy C. Hewitt, Lycena Dney, 'William N. Crenshaw, Snsan Argent, Burnetta Crenshaw, J. M. Crenshaw, Geo. F. Trescott, Beverly Dney, T. T. Killam and H. G. Magrnder, all of whom own lands in said district, as shown by the said record.
Upon the incoming of the report of the commissioners the conrt made and entered of record the following order:
IN THE MATTER OE THE CAP-AU-GRIS DRAINAGE AND LEVEE DISTRICT.
Now here on this day come Wm. J. Seaman, A. A. J. Sitton and Wm. Brimm, Commissioners, and file their report in the above-entitled cause, setting forth that the route and terminus of the proposed work, and the proposed location thereof is in all respects proper and feasible, the probable cost of the proposed work, in-*247 eluding all incidental expenses, the probable cost of keeping the same in repair after the work is completed, what lands will be injured thereby, the aggregate amouqt of such injuries, what lands will be benefited by the construction of the proposed work, apportioning and assessing the estimated cost of the same on the lands so benefited, as fully as they are required to make report under section 9 of the act of the General Assembly of. the State of Missouri, entitled, “An Act to provide for the organization of Drainage Districts, and for the construction, maintenance and repair of drains, ditches, levees in certain cases,” approved April 1, 1893, together with the surveys, profiles, plans and specifications for said proposed work.
Whereupon the court orders that all persons interested in such report or in the work referred to therein be notified of these proceedings, so that they may appear and contest the confirmation of said report on Monday, the 24th day of September, 1894, on which day this court will be in session at the Court House in Troy, Missouri, where all persons interested will be given a proper hearing. And the clerk of this court is ordered to give notice of the time and place of such hearing to all parties interested, by the publication of a notice thereof, and of the amount of benefits and damage assessed and awarded by said report, which notice shall contain a description of all lands affected, by the publication of such notice for at least three successive weeks prior to the day set for such hearing in one newspaper published in the county, and by serving a copy of such notice on each of the persons or corporations affected thereby who reside in Lincoln county, at least twenty days before the day of hearing, either personally or by leaving at the last and usual place of abode.
All persons interested in or affected by tbe proposed work were duly notified of the filing of the report and the court’s- action thereon, and proof thereof was made and filed September 24, 1894.
On September 25th, the commissioners, by R. H. Norton, their attorney, presented their report for confirmation, and D. Dieckmeyer and S. L. McClay, objectors, by Chas. Martin, their attorney, presented their remonstrance against the confirmation of said commissioners ’ report.
Whereupon, an issue is framed, the court heard a part of the evidence and adjourned till the next day. And on the 26th day of September the following further proceedings were had in said cause, to-wit:
*248 Now here'comes all the parties to this suit hy their respective attorneys, being the same parties as of yesterday, and after hearing all the evidence - offered in the cause and argument of counsel, the legal and jurisdictional objections of remonstrants are by the court overruled and dismissed, and it is found by the court that the clerk of this court has caused notice of the time and place of hearing the report of commissioners in the above-entitled cause to be given by publication in the Troy Free Press, a public newspaper published in the county, for three successive weeks prior to the day for such hearing, that said notice so published contained a description of all the lands affected, together with the amount of benefits and damages assessed and awarded to each separate tract, as set out in said commissioners’ report, as shown by the affidavit of H. F. Childers, publisher of said newspaper, on file in this court. That said clerk has caused further notice of the same to be given by having each person or corporation affected thereby who resides in Lincoln county served with a copy of said notice, so published, at least 20 days before the day set for hearing, either personally or by leaving at the last usual place of abode, as shown by the returns of J. C. Ellis, sheriff, on file in this court.
The court further finds from a hearing duly had that the report of said commissioners requires modification in this, to-wit: State definitely whether or not the benefits assessed will pay the costs of the completed work, including incidental expenses, the damages awarded and all costs of procedure, and also whether or not the actual benefits are sufficient to justify the proposed improvement, the same is by the court referred back to the commissioners, who are requested to modify their report in that respect. Said report hav.ing been modified by said commissioners as above directed and required, the court further finds that the amount of damages awarded to H. Dickmeyer by said commissioners is adequate, just and proper, and that he is not damaged in excess of the amount awarded by said commissioners.
It is therefore ordered and adjudged by the court that the commissioners herein do have and recover of the said H. Dickmeyer their costs and expenses in this behalf incurred and expended, and that execution may issue therefor.
The court further finds that the amount of damages awarded to S. L. McClay by said commissioners is inadequate, that the said McClay is damaged in the sum of one hundred and ninety dollars, and he, the said S. L. McClay, is by the court awarded the sum of one hundred and ninety dollars damages. It is therefore ordered and adjudged by the court that the said S. L. McClay do have and recover of said commissioners his costs and expenses in this behalf incurred, and that execution issue therefor.
From the finding aforesaid, the court further finds in favor of the validity of these proceedings, that the proposed work is in all respects feasible, just and proper; that the assessments made by said commissioners are ample to pay all expenses of the completed*249 work, including all damages awarded, incidental expenses and costs of procedure, and that the lands within the limits of said district securely protected from overflow on the completion of the proposed work, and being so redeemed and protected, said lands will be exceedingly valuable for agricultural purposes, and the benefits thus bestowed will greatly exceed in value the costs and expenses incurred in constructing said work.
Whereupon, it is ordered and adjudged by the court that the report of the commissioners be and the same is hereby confirmed, and the proposed work is established and authorized, and the proposed assessments are approved; said district is hereby declared by law to be organized as a drainage district by the name of “The Cap-Au-Gris Drainage and Levee District” with the boundaries fixed as set out in the commissioners’ report; said district is hereby declared by the court to he a body corporate by the name mentioned aforesaid, with the right to sue and be sued, to adopt and use a corporate seal, and to have perpetual succession.
It is further ordered and adjudged by the court that the assessments of benefits authorized by the adoption of said report be and the same are assessed and levied to be paid in installments as follows, to-wit: 25 per cent of the assessment shall be- due and payable on the 1st day of January, 1895, 1st day of July, 1895, first day of January, 1896, and first day of July, 1896.
The court further orders the clerk of this court to spread the report of said commissioners on the records in full and furnish a copy thereof to said commissioners. [Here follows report of commissioners as to deeds of relinquishment from various parties.]
Notices of the assessments were duly served upon all of the interested parties, and .the one served upon defendant was as follows:
CAP-AU-GRIS DRAINAGE AND LEVEE DISTRICT.
To A. C. Wilson: You are hereby notified that under the report of the commissioners of the Cap-Au-Gris Drainage and Levee District made to the county court of Lincoln county, Missouri, on the 17th day of August, 1894, the following assessments of benefits were made as follows:
In township No. 49, N. R. 2 and 3 east, in Lincoln county, Missouri.
Acres Benefits Sum of benefits
A. C. Wilson the sum of Lot No. 7 of Survey No. 1653, township 49, range 3 east.....•. 26.95 $100.00 $1,008.50
Lot No. 8 of Survey No. 1653 township 49 range 3 east.. 161.40 650.00
*250 The Riffle tract lying in surveys Nos. 1653 and 1756 adjoining and north of the town of Cap-Au-Gris........... 86.65 255.50
Lot 1 in Block 7 in the town of Cap-Au-Gris .............. 3.00
Which said assessments of benefits were confirmed by said county court, by order duly entered of record dated September 26, A. D. 1894, it being the August term of court.
You are further notified that said assessment of benefits were, by order of said county court of Lincoln county, Missouri, made payable as follows, to-wit: twenty-five per cent of assessment to be due and payable on the first day of January, 1895; twenty-five per cent due and payable on the first day of July, 1895, twenty-five per cent due and payable on the first day of January, 1896, and twenty-five per cent due and payable on the first day of July, 1896. And you are further notified that the undersigned commissioners will "be present in the town of Winfield, Lincoln county, Missouri, at the Bank of Winfield, on July 15, 1895, between the hours of nine o’clock in the forenoon and six o’clock in the afternoon of said July 15th and the first day of January, 1896, and the first day of July, 1896, for the purpose of receiving payments of said assessment of benefits, at which time and place you are hereby notified to make payment of said assessments and benefits.
Witness our hands as commissioners and the seal of said Cap-Au-Gris Drainage and Levee District hereto attached.
(Seal) W. J. Seaman,
W. A. J. Sitton,
Wm. Beimm,
Commissioners. •
This notice contains also the names, description of lands, number of acres, amount of benefits of all parties named in heading to notice.
The following is the award of damages:
In the matter of the Cap-Au-Gris Drainage and Levee District: W. J. Seaman, Wm. A. J. Sitton and Wm. Brimm, commissioners for said Cap-Au-Gris Drainage and Levee District, file their report showing the assessment of damages and benefits on each tract, lot, easement, interest or servitude in said district, which said assessment was on the said 26th day of September, 1894, confirmed by said court. The said assessment as appears of record as aforesaid is as follows:
The above award also contained the names of all the owners and descriptions of all the lands and damages and benefits to all the lands, in the entire district.
The following is a correct list of lands in the Cap-Au-Gris Drainage and Levee District of the first and second assessments of benefits that remain 'due and unpaid, this the 7th day of July, 1896:
The -undersigned commissioners of the Cap-Au-Gris Drainage and Levee District of Lincoln county, Missouri, hereby certify that the above and foregoing list of names and descriptions of lands and amounts is a true and correct list and description of lands, together with the amounts of the first and second assessments of benefits thereon fixed by the court of Lincoln county, Missouri, at its August term, 1894, and are now remaining due and unpaid this the 7th day of July, 1896. In testimony whereof, we have hereunto set our hands and seals this 14th day of July, 1896, and the corporate seal of the Drainage and Levee District.
The following is a correct list of lands in the -Cap-Au-Gris Drainage and Levee District of the third and fourth assessments of benefits that remain due and unpaid, this the 7th day of July, 1896:
*252 The undersigned commissioners of the Cap-Au-Gris Drainage and Levee District of Lincoln county, Missouri, hereby certify that the above and foregoing list of names and description of lands and amounts is a true and correct list and description of lands, together with the amounts of the third and fourth assessments of benefits thereon fixed by the court of Lincoln county, Missouri, at its August Term, 1894, and are now remaining due and unpaid, this the 7th day of July, 1896.
In witness whereof, we have hereunto set our hands and seals this 14th day of July, 1896, and the corporate seal of the Drainage and Levee District.
The following delinquent tax list was introduced in evidence:
FIRST ASSESSMENT.
TO THE COUNTY CLERK OF THE COUNTY COURT OF LINCOLN COUNTY, MISSOURI:
We, the undersigned commissioners of the Cap-Au-Gris Drainage and Levee District, do hereby certify that the above and foregoing is a true, accurate and complete list of lands situated in Lincoln county, Missouri, and in said drainage district on which assessments for levee work are due and unpaid, together with the date of assessment when the installment is due and the amount of*253 tax or assessment due on the respective tracts subdivisions of said lands and the names of the respective owners of said various tracts of land. And we further certify that said assessments bear interest at the rate of six per cent per annum from the respective dates when they were due, as specified in the above list.
The following supplemental report was read in evidence:
IN THE MATTER OX THE CAP-AU-GRIS DRAINAGE AND LEVEE DISTRICT.
To the Honorable Gounty Court of Lincoln County, Missouri:
The undersigned commissioners duly appointed • and qualified, of the “Cap-Au-Gris Drainage and Levee District” by leave of the court first had and obtained comes and files this their supplemental report as follows:
It appears by the report of W. J. Seaman, William Brimm and W. A. J. Sitton, the immediate predecessors in office of the undersigned (which report was filed on January 2, 1897) that said commissioners, Seaman, Brimm and Sitton, had incurred and contracted in the prosecution of the work in said district an indebtedness of seven thousand, one hundred and fifty-seven and 38-100 dollars ($7,157.58) over and above the amount of estimate, levy and collection originally made and collected. That said amount so reported is with interest thereon still due and unpaid.
The undersigned further report that, after the said 2nd day of January, 1897 (the date of said report) their said predecessors incurred a further indebtedness of six hundred and fifty-six and 30-100 dollars ($656.30) in the prosecution of the work of said'district and issued therefor warrants in various sums, which warrants were numbered respectively from 220 to 236 inclusive.- That said warrants are outstanding and unpaid. That said predecessors drew in their own favor warrants aggregating the sum of sixteen dollars, and that said last-named warrants exhausted all of the cash in the hands of the treasurer belonging to said district.
The undersigned further report to the court that since their appointment and qualification as commissioners they have been compelled to incur a further indebtedness in the prosecution of the work in said district to the amount of twenty-five dollars and have issued therefor warrants numbered from 240 to 243, both numbers inclusive. That these several sums of indebtedness now outstanding amount in the aggregate to the -sum of seven thousand, eight hundred and thirty-eight and 68-100 dollars ($7,838.68) for the payment of which immediate provision should be made.
We further report to the court that as a necessary result of the work of drainage and reclamation of lands within said district, about eight hundred acres therein is subjected to inundation from the fall and flow of water within the levees constructed as aforesaid in said district. That this water may be and is properly*254 designated as “surface -water.” To relieve this large body of land of said water and to fully drain and reclaim all of the lands- within said district it is necessary, in the opinion of the commissioners, that some artificial means be adopted for that purpose, and we report that, in our opinion, to do this work effectively it will require the erection and placing in position of machinery necessary to pump out the “surface water” which has and will continue to gather on that portion of land above mentioned, within said district.
We further report that we have carefully estimated the expense and cost of such machinery necessary to the drainage and reclamation of said land and find it to be the sum of three thousand dollars.
It seems to us and we so report that said machinery is as necessary to the complete drainage and reclamation of the wet and overflowed lands within said district as is the building of levees and the digging of ditches, and without the doing of all of which the objects to be attained will be defeated.
We submit the following statement of the amounts due from said district and an estimate of additional sums necessary to be paid to complete the work of drainage and reclamation of the lands embraced within said Cap-Au-G-ris Drainage and Levee District, to-wit:
Amount reported by former commissioners..........$ 7157.38
Warrants issued since January 2, 1897................ 681.30
Amount necessary for repairs ....................:.. 500.00
Salaries and other incidental expenses .............. 500.00
Interest (approximately) ........................... 2061.05
Machinery for drainage ............................ 3000.00
Total.........................................$13,899.73
We respectfully recommend that an assessment to cover the ;above amount be authorized and directed and that the amount of said levy and assessment be divided into five equal annual payments, the first to become due and payable the first day of July, 1898, and the remainder on the first day of July each succeeding year until the whole thereof is paid.
[Endorsed:] Supplemental Report of E. F. Trescott, W. T. Killamt, B. E. Magruder, Commissioners of Cap-Au-Gris Drainage and Levee District.
This supplemental report contains the names and description of all land belonging to each party in the district and the amount assessed against each tract of land, but for brevity we print names only of those in dispute.
Tbe following remonstrance was filed against tba supplemental report:
IN THE COUNTY COURT 03? LINCOLN COUNTY, MISSOURI.
TO THE HONORABLE, THE COUNTY COURT:
Now comes the' undersigned owners of land in the Cap-Au-Gris Levee and Drainage District, and except and remonstrate to and against the report of the commissioners, Trescott, Magruder and Killam,, filed on the 15th day of October, 1897, for the following reasons, to-wit:
First. Because the former commissioners had no legal right to incur an indebtedness against said district without the order of the county court or presiding judge thereof, which order they did not have.
Second. Because the former commissioners reported the Levee- and Drainage completed, and machinery to pump water out of the district is no part of the levee or repairs thereof and there is no. legal authority to levy a tax for such a purpose.
W. N. Crenshaw.
J. A. Overall.
Daniel Maden.
John Parsons.
M. T. KJMB33RLY.
B. E. Bradley.
Minnie McEwan.
Birdie Bradley,
Eeeie Cox.
Edna Bradley.
Lida Bradley.
Elba Bradley.
Mary Bradley.
John J. Ceessdon.
Herman Dieckmeyer.
J. T. Elston.
Rebecca Ciusws.
Herman Mehs.
J. F. Crenshaw.
A. C. Wilson.
Michael R. Dumpi-iy.
Mrs. Margaret Dumpi-iy.
TO THE HONORABLE COUNTY COURT OF LINCOLN COUNTY, MISSOURI:
We the undersigned owners of land within the Cap-Au-Gris Drainage and Levee District, pray your honorable body to grant no further levee tax or assessment for the purchase of pumps, engines or other apparatus for use of said Cap-Au-Gris Drainage and Levee District, as we consider ourselves unable at present to meet any further monetary demands for levee purposes, and your petitioners will ever pray. ■
John A. Creedon. Birdie Bradley.
W. N. Crenshaw. Lida Bradley.
Alex Miller. John Parsons.
Rebecca Crews. M. T. Kimberly.
her mark Herman Mehs.
X J. P. Crenshaw.
A. C. Wilson. John T. Elston.
Effie B. Cox. Daniel Maden.
B. E. Bradley. R. L. Wilson.
Minnie McEwen. M. R. Dumphy.
Edna Bradley. H. Dieckmeyeb.
Elba Bradley. J. A. Overall.
Mary Bradley. A. C. Wilson.
The cause was continued from time to time and from term to term, ,but as no point is made along that score the continuances are ignored.
On November 30,1897, the court made and entered the following order:
IN THE MATTER OF THE CAP-AU-GRIS DRAINAGE AND LEVEE DISTRICT.
Now here come all the parties to this suit by their respective attorneys and after hearing all the evidence offered in the cause and argument of counsel, the legal and'jurisdictional objections of remonstrants are by the court sustained as to the item of machinery for drainage.
It is further ordered by the court from the hearing duly had that remainder of said supplemental report be and the same is hereby approved in this, to-wit:
i Amount reported by former commissioners...........$ 7157.38
Warrants issued since January 2nd, 1897............ 681.30
Amount necessary for repairs ....................... 500.00
From this order an appeal was duly taken to the circuit court, and on April 9,1898, a trial was had and the following judgment was rendered therein, to-wit:
*257 In the Circuit Court of said County. On the 9th day of April, 1898, the following, among other proceedings, were had, viz.:
In the matter of the Cap-Au-Gris Drainage and Levee District, Daniel Maden, excepting to the report of the commissioners, appellant, appealed from the county court to Lincoln county, Missouri.
Now here in open court comes the Cap-Au-Gris Drainage and Levee District by its commissioners and also represented by its attorneys, Norton, Avery & Young, and also comes the appellant excepting to the report of said commissioners in proper person and by attorneys, J. W. Matson and Geo. T. Dunn, and the cause being called for trial both parties answer ready, and the report of the commissioners and the remonstrance together with all the pleadings and the evidence and argument of counsel being submitted to the court, the court doth find as follows:
First. That the commissioners, in the building and construction of the proper ditches and levees as they were authorized to construct and build by their charter and authority, given them, representing the said Cap-Au-Gris Drainage and Levee District, have incurred an indebtedness for labor thereon of seven thousand, one hundred and fifty-seven and 38-100 dollars, over and above the amount of estimate, levy and collection originally made and collected, and that said amount with interest thereon is due and unpaid, this indebtedness accruing prior to January 2nd, 1897.
It being fully found by the court that in the first assessment made by the commissioners reported to the court a smaller sum than was needed to complete the work of said drains and levees in said district either in construction or repairs.
Second. That since the 2nd day of January, 1897, the commissioners of said district in the prosecution of work necessary to the building and keeping in repair of said ditches and levee have incurred a further indebtedness of six hundred and eighty-one and 30-100 dollars, which said amount is due by said Drainage and Levee District and ds unpaid.
Third. That the said ditches and levees as builded by said district are now in need of repairs, and that the sum of five hundred dollars is necessary to do said repairing.
Fourth. That there are now due and it becomes necessary to raise five hundred dollars to pay salaries of the officers of said corporation and incidental expenses connected therewith.
Fifth. That the interest on the indebtedness now accumulated and which will accumulate before the same will be paid will amount to the sum of fifteen hundred dollars.
Sixth. The court doth further find that no assessment in the sum of three thousand dollars or any other amount can be made for the erection and placing in position necessary machinery to pump out the surface water gathering in said ditches or any part thereof.
*258 It is therefore ordered, adjudged and decreed by the court that the report of the commissioners be adopted except as to machinery necessary to pump out surface water and that that part be rejected, and that a further assessment be made proportional on the first assessment in the sum of ten thousand, three hundred and eighty-eight and 68-100 >dollars, being amount found by the court under the evidence to be necessary, as follows:
Amount reported due for work by former commissioners .......................................$ 7157.38
Warrants issued for work on district since January 1, 1897 ........................................ 681.30
Amount necessary for repairs ....................... 500.00
For salaries and other incidental expenses............ 500.00
Interest......................................... 1500.00
And that the same be levied on the lands in said district in the same proportion as the first assessment and the said sum is by the) court adjudged to be assessed and levied and collected in five equal annual payments as follows, to-wit: One-fifth thereof to be paid September 1st, 1898, and one-fifth on each succeeding September 1st, until the whole amount is paid, and it is further ordered that a certified copy of this judgment and decree be transmitted by the clerk of this court to the county court of Lincoln county, Missouri, and a certified copy thereof served on each of the commissioners of the said Cap-Au-Gris Drainage and Levee District, and it is further ordered, adjudged and decreed that the Cap-Au-Gris Drainage and Levee District have and recover from the appellant, Daniel Maden, and his bondsmen, St. Louis, Keokuk & Northwestern Railway Co., and R. L. Wilson, the costs in this behalf incurred and that it have judgment and execution therefor.
The foregoing judgment of the circuit court was duly served on the commissioners shortly after its rendition.
The following is a corrected list of the assessments for the amount of assessments against defendant’s land, approved by the county court at the November term, 1897, and sustained by the circuit court, at its spring term, April, 1898:
I, Wm. A. Jackson, clerk of the county court within and for said county, hereby certify the above and foregoing to be a true and correct copy of “corrected assessment list” filed in my office on September 1st, 1898, by commissioners in the Gap-Au-Gris Drainage and -Levee District.
In testimony whereof, I have hereunto set my hand and affixed the seal of said court at office in Troy, this 27th day of September, 1898.
Wm. A. Jackson,
County Clerk.
The following is a copy of the delinquent list of taxes due by defendant to the district, made by the commissioners and filed in the office of the county clerk May 15,1901, showing the taxes on his lands that were then due and delinquent, together with a description of the lands and when the taxes were due, setting out in full the names of owners, descriptions of lands and amounts due, among them the following:
Endorsed: Certified copy of list of Delinquent Taxes in the Cap-Au-Gris Drainage and Levee District, filed May. 15, 1901, Lincoln county, B. H. Wommack, clerk.
Plaintiff then introduced the following copy and the certificate thereto of delinquent taxes due the district for the year 1902, which was filed March 12,1902, to-wit:
*260 To the Clerk of the County Court of Lincoln County, Missouri: The following is a certified list of the delinquent taxes due the Cap-Au-Gris Drainage and Levee District on lands situated in Lincoln county, Missouri, together with a description of said lands, the amount due and when due. And we further certify that this installment draws six per cent interest from the date when due.
Endorsed: List of delinquent taxes Cap-Au-Gris Drainage and Levee District, filed March 12, 1902, Lincoln county, B. H. Worn-mack, clerk.
Plaintiff then introduced the land tax-book of Lincoln county, Missouri, for 1896, in so far as it affects defendant’s lands, and is as follows:
LAND TAX BOOK OB LINCOLN COUNTY, 1896, PAGE 316. State of Missouri, County of Lincoln.
CAP-AU-GRIS DRAINAGE AND LEVEE DISTRICT.
List of lands upon which the special assessments for benefits fixed by the County Court of Lincoln County, Missouri, at its August Term, 1894, remaining due and unpaid on the 7th day of July, 1896:
I, Wm. A. Jackson, clerk of the county court in and for said county, 'hereby certify that the above is a correct statement, list and description of those lands in said county comprising a portion of the Cap-Au-Gris Drainage and Levee District on which the assessments are due and unpaid, with the dates when the respective amounts were due, the amounts of said various assessments and the names of the- owners of said tracts described in delinquent list certified to me on the 15th of July, 1896, by Wm. J. Seaman, W. A. J. Sitton and Wm. Brimm, commissioners of said district.
Witness my hand and seal as county clerk, this 5th day of July, 1896.
(Seal) ' Wm. A. Jackson,
Clerk.
Counsel for plaintiff next offered in evidence the land tax-hook of Lincoln county, Missouri, for 18991, showing the delinquent list filed in 1899 by the commissioners, which reads as follows:
Tax Book ok'Lincoln County, Missoubi, kob the yeak 1899. No. 1501.
Wilson, A. C. Pt. lot 8, Survey 1653, Tp. 49, R. 3 E., 101.40 acres.
Total valuation of assessor ......................$260 0Ó
Total valuation of County Board of Equalization.. 260 00 Total valuation State Board of Equalization ...... 260 00
State tax 65 cts.; County tax, 23; Road tax, 26; school tax, 1.04.
*262 Cap-Au-Gris Drainage and Levee tax; 1st inst. due Jan. 1st, 1895, $101.60; 2nd inst. due July 1st, 1895, $101.60; 3rd inst. due Jan. 1st, 1896, $101.60; 4th. inst. due July 1st, 1896, $101.60.
(Marked on book “All above to A. C. Wilson.”)
Current Number 1502.
Wilson, A. C. Riffle tract, Sur. 1563 and 1756, Tp. 49, R. 3 E., acres 71.55.
Total valuation by assessor......................$460 00
Total valuation State Board ...................... 460 00
Total valuation County Board .................... 460 00
State tax, $1.15; County tax, $4.14; road tax, .46; School tax, $1.84.
Cap-Au-Gris Drainage and Levee tax, 1st installment due Jan. 1, 1895,■ $63.88; 2nd installment due July 1, 1895, $63.88; 3rd installment due Jan. 1, 1896, $63.88; 4th installment due July 1, 1896, $63.88.
No. 1507.
Wilson, A. C. N. W. Pt. lot 7, Sur. 1653, Tp. 49, R. 3 E., 26.95 acres.
Valuation by assessor ..........................$120 00
County Board Equalization ....................... 120 00
State Board Equalization ........................ 120 00
State tax, .30; County tax, $1.08; Road tax, .12.
Cap-Au-Gris Drainage and Levee tax, 1st installment due Jan. 1,^1895, $25; 2nd installment due July 1, 1895, $25; 3rd installment due Jan. 1, 1896, $25; 4th installment due July 1, 1896, $25. No. 1511.
Thereto attached is the following certificate:
I, Brice H. Wommack, Clerk of the County Court in and for said county and state aforesaid, do hereby certify that the foregoing is the Land Tax Book of said county, containing all the real estate of said county for the year 1899, as set out in the assessor’s book and is a copy thereof, and that said assessor’s book remains on file in my office.
Witness my hand and official seal, this 26th day of September, 1899,
Plaintiff also introduced the Back Tax-Book for the year 1899 in so far as affecting defendant’s lands, and is as follows:
No. 1501.
Wilson, A. C. Pt. lot 8, Sur. 1653, 101.40 acres.
Valuation 260; Road tax, 2; School tax, 1.04.
Cap-Au-Gris Drainage and Levee tax, 1st installment due Jan. 1st, 1895, $101.60; 2nd installment due July 1st, 1895, $101.60; 3rd installment due Jan. 1st, 1896, $101.60; 4th installment due Sept. 1st, 1898, $64.46.'
*263 No. 1502.
Wlilson, A. C. Riffle tract, Sur. 1653 and 1756; tp. 49, R. 3 E., 75.55 acres.
Valuation 4.60; road tax, 46; school tax, $1.84; total $7.59. Cap-Au-G-ris Drainage and Levee tax, due Jan. 1st, 1895, $63.88; 2nd installment due July 1st, 1895, $63.88; 3rd installment due Jan. 1st, 1896, $63.88; 4th installment due Sept. 1st, 1898, $51.19.
No. 1502.
Wilson, A, C. N. W. Ft. lot 7, Sur. 1653, Tp. 49, R. 2 E„ 26.95 acres.
Valuation 120; road tax 12; school tax 48; total $1.98. Cap-Au-Gris Drainage and Levee tax, 1st installment due Jan. 1st, 1895, $25; 2nd installment due July 1st, 1895, $25; 3rd installment due Jan. 1st, 1896, $25; 4th installment due July 1st, 1896, $25.
Counsel for plaintiff next offered in evidence the Consolidated Tax-Book for 1900', and the certificate thereto, also entries opposite current numbers 226, 227, 228, 229, which, is as follows:
Consolidated Tax Book, Lincoln County, Missouri, por the YEAR 1900 AND PRIOR YEARS.
State of Missouri, County of Lincoln.
I, Brice H. Wommack, Clerk of the County Court in and for said County and State aforesaid hereby certify that the foregoing pages are the Consolidated Tax Book of said County for the year 1900 and prior years, setting forth opposite each tract of land or town lot the year or years for which said tract of land or town lot is delinquent or forfeited and the amount of the original tax due each fund on said real estate and interest due on the whole of said tax at the time said tax books were made, together with the clerk’s fees then due and the aggregate amount of taxes, interest and clerk’s fees charged against each tract of land or town lot for all the years for which the same is delinquent or forfeited. That said land delinquent list of said county for the year 1900 was returned by Frank D. Brown, Collector of the County Revenue, for said county, on the 4th day of March, 1901, and by the county court •of said county was examined, compared, corrected and approved and certified by said collector and filed in my office on said fourth day of March, 1901.
In testimony whereof, I hereunto set my hand and affix the seal of said court at my office in Troy, Missouri, this fourth day of May, 1901.
(Seal) Brice H.-Wommack, County Clerk.
*264 Current No. 226.
Wilson, A. C. Pt. lot 8, Sur. 1653, Tp. 49, R. 3 E„ 101.40 acres, valuation, 260.
State tax, 65; county tax, 2.34; road tax, 26; school tax, 1.04; total 4.29.
Cap-Au-Gris Drainage and Levee tax, first installment due July 1st, 1895, $101.60; second installment due Jan. first, 1896; $101.60; third installment due July 1st, 1896, $101.60; fourth installment due Sept. 1, 1898^' 1j!68.48.
No. 227.
Wilson, A. C. Riffle tract, Sur. 1653, and 1756, Tp. 49, R. 3 E., 71.55 acres; valuation 4.60.
State tax, 1-.15; County tax, 4.14; road tax, .46; school tax, 1.84; total, 7.59.
Cap-Au-Gris Drainage and Levee District tax, first installment due Jan. 1st, 1895, $63.88; second installment due July 1st, 1895, $63.88; third installment due Jam first, 1896, $63.88; fourth installment due Sept, first, 1898, $51.19.
(Remarks: March 30th, 1901 — All hut levee tax paid.)
No. 229.
S. W. Cor. lot 7, Sur. 1653, Tp. 49, R. 3 E., 26.95 acres.
Cap-Au-Gris Drainage and Levee District tax, first installment due Jan. 1st, 1895, $25; second installment' due July first, 1895, $25; third installment due Jan., first, 1896, $25; fourth installment due July-first, 1896, $25..
(Remarks: All hut levee tax paid March 31st, 1901.)
All of the land-owners were duly notified of'the various assessments shortly after they were made, by the secretary of the district. *
The defendant offered evidence tending to prove the. allegations of his answer regarding the arrangement alleged to have been made between defendant and the promoters of the drainage district in reference to the old levee, which, upon objection, was by the court excluded, and defendant duly excepted.
The defendant has presented the following assignments of error:
1st. The original petition praying for the organization of the drainage district should allege that the petition was signed by the “adult owners, of more than one-half of the lands within the district proposed to be organized, representing in area more than one-half of the lands to be reclaimed, benefited, affected, or
2nd. The original petition should give a description of the ‘ ‘ starting point, route and terminus of the proposed levee” and the starting point, route and terminus of the proposed drainage district. These are jurisdictional requisites which must appear upon the face of the proceedings.
3rd. The record of the county court on the original petition should show that the court found that the “proposed levee and drain were necessary or would be useful for the drainage of the lands proposed to be drained thereby for agricultural purposes.” These are jurisdictional requisites and should appear upon the face of the proceedings.-
4th. The record of the proceedings in the county court does not show that the county clerk caused a notice to be given stating “when and in what court the petition praying for the organization of the Cap-Au-Gris Drainage and Levee District was and is filed, the starting point, route, termini and general description of the proposed work, the boundaries and name of the proposed drainage district and at what term of said court, when and where the petitioners will ask a hearing of said petition.” The court only found that “notice of the filing of said petition” was given, but does not find that such notice expressed the other facts as required by section 3, Laws 1893, page 1891, Revised Statutes 1899, section 832,0. These are jurisdictional requisites and the failure of the proceedings had in the county court to show the same affirmatively, renders said proceedings illegal and void.
5th. The failure of the commissioners in their report to the county court to state the “aggregate
6th. The failure of the commissioners in their report to the county court to “state whether the proposed district, as set out in the petition (original) filed, would embrace all the lands that might be damaged or benefited by the proposed work” or to state “what additional lands would be benefited or damaged, and the amounts of the benefits or damages, in the same manner as though such lands were included in such original petition” renders that and all subsequent proceedings ineffectual. This being a jurisdictional requisite should appear on the face of the proceedings.
7th. The finding of the county court that “the proposed work is in all respects feasible, just and proper” is not supported by the report of the commissioners, or by the record of the county court introduced in these causes.
8th. The commissioners having failed to report to the county court “whether the starting point, route and terminus of the proposed levee” and “whether the starting point, route and terminus of the proposed drainage district,” and the “proposed locations thereof was in all respects proper and feasible,” and “if not, what was,” rendered all subsequent proceedings ineffectual. These are jurisdictional requisites and should appear on the face of the proceedings.
9th. The failure of the commissioners in their report, and the county court in its findings to definitely fix the boundaries of the “drainage district” and to state the “starting point, route and terminus of the levee” 'and the “drainage district,’'’ precluded the drainage commissioners from proceeding to lay out the district.
,10th. The action of the commissioners (Trescott, Killam and Magruder) and their predecessors in office
11th. Section 20, Laws 1893, page 195, Revised Statutes 1899, section 8337, under which the second or supplemental assessment was attempted to be levied, provides a further assessment . .' . may be made under the order of the court, or presiding judge thereof, without notice. Said action inasmuch as it provides for assessments upon real estate for drainage purposes, without notice to the owners thereof, so that they may in some way, if they choose, contest the validity or the amount of such assessments, is void, as being in conflict with the constitutional inhibitions against taking private property “without due process of law” and “the taking of private property for public use without just compensation.”
12th. The circuit and county courts of Lincoln county had no authority to order a levy of the second or supplemental assessment of taxes against the lands of these defendants, when the reports of the commissioners and the record proceedings of the county court showed that the first assessment of levee taxes against said lands were in amounts equal to the benefits shown by said reports and records; and that the entire amount of the second assessment of taxes was over and above the amounts of benefits to said lands. Levee taxes are limited to the amounts of the benefits. Said second or supplemental assessment is illegal and void. The second assessment of levee taxes being in excess of the benefits conferred, and not being predicated upon benefits to the lands of these defendants, was to the extent
13th. The certificate of the county clerk to the alleged list of delinquent assessments of the defendant is not sufficient compliance with the statutes in this, that it does not show- that the county clerk entered said dilinquent assessments in the tax lists for Lincoln county next thereafter, nor that the tax lists were corrected and adjusted, nor that he had made a fair copy thereof with the taxes extended therein, authenticated by the seal of the court, nor that he had delivered the same to the county collector. These are essential requisites before the county collector can proceed. It is his authority to act. The pretended list and certificate is not a tax-book of Lincoln county for 1896'.
14th. The back tax-book for 1899 is not a sufficient compliance with the statutes, in this, that it does not appear that the county court examined and compared the delinquent lists and corrected same and caused the list so corrected to be certified and filed in the office of the county clerk; that the clerk made the said corrected lists into a “back tax-book” and delivered the same to the county collector. The alleged “back tax-book” for 1899 is not certified to at all.
15th. The alleged delinquent assessments, if they were delinquent, should have been entered in the back tax books for 1897.
16th. The first, second, third and fourth installments of the first assessment falling due respectively January 1, 1895, July 1, 1895, January 1, 1896, and July 1, 1896, should have been certified to by the commissioners when they were due and unpaid to the county clerk. The failure of the commissioners to so certify, until July 15, 1896, precluded the enforcement
a. The same objection applies to the first installment of the second assessment. It was dne September 1, 1898, bnt was not certified to the clerk as due and unpaid until May 8,1899, and May 15,1901.
17th. The commissioners having failed to make any certification whatever to the county clerk of the alleged delinquency of the first installment of the second assessment, due September 1, 1898, as to tract No. 2 (Lot No. 7 in Survey 1653, Twp. 49, R. 3 East), of defendant A. C. Wilson’s lands, the court correctly found on the fifth count of plaintiff’s petition for said defendant as to said item (tract No. 2) of the first installment of the second assessment. The said item of the first installment of the second assessment not having been returned delinquent by the commissioners and not having been entered by the clerk on the tax lists next thereafter, prevented enforcement of said item of said installment of said assessment.
18th. The first assessment was levied by the county court on the 26th day of September, 1894, and made payable in four installments of twenty-five per cent each, on January 1,1895, July 1, 1895, January 1, 1896, and July 1,1896, but the suits against Wilson and Wilson et al., were not filed until December 28, 1900. The first and second counts in said suits being for the first and second installments, respectively, of said assessment, the circuit court properly held that said first and second installments were barred by the Statute of Limitations on the 28th day of December, 1900.
19th.. The circuit court erred in not permitting defendants to show the terms of the contract under which they became petitioners for the establishment of the new levee district in controversy, to-wit: that it was agreed between defendants on the one hand (owners of the levee already built and to form a part of the proposed new levee) and the promoters of the new dis
20th. Defendants’ signing the original petition does not estop them from questioning the legality of the second assessment.
a. Remonstrances filed by defendants in the proceedings to confirm said second assessment and the judgments of the courts therein in overruling said remonstrances will not estop these defendants, because the courts (county and circuit) wherein said remonstrances were heard and said judgments rendered were without jurisdiction.
21st. The judgments of the county and circuit courts confirming the second assessment on the report of the commissioners is not res adjudicata upon any question in these cases, because the court acted without jurisdiction.
a. Said second assessment being in excess of benefits was illegal and void.
b. Said second assessment being levied for an indebtedness previously incurred was illegal and void.
c. Judgment rendered on said second assessment was illegal and void. A void judgment is a nullity and may be attacked collaterally.
22nd. Suits are brought in the name of the State at the relation of county collector. No authority is-given the county collector to receive and receipt for taxes of this character by statute from which alone he derives his powers. When the court confirms the report of the commissioners, the statute (latter part sec. 8331, R. S. 1899) declares the district to be a body corporate by the name mentioned in the petition with right to sue and be sued, adopt a seal, etc., and the order of the Lincoln County Court declares “Cap-Au-Gris Drainage and Levee District” is a body corporate and had a right to sue. For what may it sue? Cer
The errors assigned by the plaintiff will be noted in the opinion and be considered after we have disposed of those assigned by the defendant.
OPINION.
I. The first nine errors assigned by defendant relate to and question the validity of the incorporation of the Cap-Au-G-ris Drainage and Levee District.
Counsel for plaintiff insists, first, that those assignments are not true in fact; and, second, that conceding them to be true, the validity of the incorporation of the district cannot be questioned collaterally in this suit.
We will dispose of these two contentions in the inverse order in which they-are stated.
Section 8331, Revised Statutes 1899, provides that “any owner of lands, person or corporation affected by the work proposed, may appear on the day set for hearing of said report and remonstrate against the whole or any part of the proposed work. Such remonstrances shall be verified by affidavit, and shall set forth the causes, whether legal or jurisdictional objections, or that any lands are assessed too high or too low, or improperly, or that lands are assessed
This statute in express terms gave the county court jurisdiction of this proceeding, and authorized it to hear and decide all questions as to the validity of the proceedings, whether legal or jurisdictional, and render a final and conclusive judgment confirming the assessments and incorporating the district.
The evidence shows and it is not contradicted that all parties interested in any of the land located within the district were duly notified of the proposed assessment and incorporation, and for them to appear upon a day named therein and show cause, if any existed, why a judgment should not be rendered confirming the assessments and incorporating the district. A hearing was had upon the day stated in the notice, and after due consideration the court entered a judgment confirming the assessments and incorporating the district.
This court, in the case of Lingo v. Burford, 112 Mo. 147, held, that where the jurisdiction of an inferior court depends upon a fact which it is required to ascertain and settle, its decision thereon is conclusive against collateral attack. The same rule is announced in the following cases: Union Depot Co. v. Frederick, 117 Mo. 138; Belk v. Hamilton, 130 Mo. 292.
As before stated, defendant was in court, both as a petitioner and by notice, and if he had any objection to the incorporation of the district as proposed, or to any portion of the commissioners’ report, he should have presented it to the court in a remonstrance, verified by affidavit, as required by said section of the statute, on the day when the cause was heard. The defendant having had his day in court and having held his peace, when he could and might have spoken and presented any valid objections he may have had to the proceedings, "he should not now be heard to complain of the court’s action. [St. Louis v. Brown, 155 Mo. 545; Kansas City v. Duncan, 135 Mo. 571.]
This direct question was presented to this court in the case of Black v. Early, Collector, et al., 208 Mo. 281. In that case this court, speaking through Lamm, J., in an able and exhaustive opinion, after reviewing all the authorities, said: “The main insistence of defendants is that in a suit to collect, or enjoin the collection, of school taxes, the corporate existence of the school district itself cannot be inquired into; and that when the invalidity of the tax
That case is on all-fours with the case at bar, and is decisive of the question that the validity of the incorporation of the Cap-Au-G-ris Drainage and Levee District cannot be inquired into in this suit. That question can only be determined by quo warranto.
Ordinarily the conclusion above reached, holding that the validity of the incorporation of the drainage district could not be questioned in this proceeding, would and should fully dispose of the first nine errors assigned by counsel for defendant; but not so in this case, for the reason that the correctness or incorrectness of some of the facts stated in those assignments form the basis of some of the legal propositions presented for our determination in other errors assigned by the defendant, and we had just as well determine those contentions now.
Defendant first contends that the organization of the drainage district is illegal and void because the petition filed with the court praying for a decree incorporating it failed to state that it was signed by the one-half of the adult owners of the lands within the district proposed to be organized. In our opinion the facts do not warrant that contention. The allegation of the petition upon that point is in the following ■ language: The petition was “duly signed by a ma
The second contention of defendant is that the petition failed -to “give a description of the starting point, route and terminus of the proposed levee, and the starting point, rcrate and terminus of the proposed district, and for those reasons the court acquired no jurisdiction of the case.” We are also of the opinion that this contention of defendant is not borne out by the facts, for the petition with the greatest detail describes and fixes boundary lines by giving its metes and bounds and by describing the lands affected. It also at great length described the ditches and levee by giving the starting points, general course and-termini. That is all the statute requires. [Sec. 8319, R. S. 1899.]
Defendant’s third contention is that the incorporation of the drainage district is illegal because the record of the county court in the original petition should show that the court found that the proposed levee and drain were necessary or would be useful for the drainage of the lands proposed to be drained thereby for agricultural purposes. The finding of the court upon that point is in the following language: “And it is further found by the court that the establishment of said drainage and levee district in accordance with said petition would be necessary for the drainage and reclamation of the lands in said petition described for agricultural purposes.” In our judgment that finding was in substantial compliance with statutory requirement.
The fourth insistence is that the record of the proceedings in the county court does not show that the clerk thereof caused notice to be given, stating when and in what court the petition praying for the organization of the district was filed, the starting
From this it is earnestly contended by counsel for defendant that since the county court was a local court, possessing only limited and inferior jurisdiction, and not proceeding according to the course of the common law, the record thereof should have shown affirmatively all the facts necessary to give it jurisdiction of both the persons and subject-matter of the suit; and, consequently, the failure of the record of the' county court to show the contents of the notice under consideration rendered the entire proceeding null and void.
The law of this State is well settled to the effect that records of courts of limited and inferior jurisdiction, not proceeding according to the course of the common law, must show affirmatively all the facts which the statute requires to be stated, in order to give the court jurisdiction of the parties and the subject-matter of the suit. [State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Schell v. Leland, 45 Mo. 289.] But that law, like most laws, has its well-defined limitations and exceptions; and one of the exceptions is this — that where such court, or a mere ministerial board for that matter, possesses under the law jurisdiction of a certain class of eases, and is required to find the existence of certain facts in pais in order to acquire jurisdiction of a particular case belonging to that class, the law will presume, in a collateral attack upon the judgment, that such facts did exist, and that such court or board passed upon them, as required by the statute. [State v. Dugan,
Defendant’s,fifth objection questions the validity of the commissioners’ report, because it fails.to state the aggregate amount of injuries that all of the lands affected would sustain by reason of the proposed work, as required by the statute. It is true the report does not state the aggregate amount of all the damages that would be done, yet it does state separately, in express terms, the amount each tract of land would sustain by reason of the proposed improvements. In order to ascertain the aggregate of all the damages, the court or jury would be only required to add up the separate awards of damages. The law is, that is considered certain which can be made certain from the face of the record. If we apply that maxim to this case, then there is no merit left in defendant’s contention.
The defendant’s sixth objection assails the legality of the commissioners’ report for failing to state whether the proposed district, as set out in the petition filed in the county court, would embrace all the lands that might be damaged or benefited by the proposed work, or to state what additional lands would be benefited or damaged and the amounts of each, in the same manner as though such lands were embraced in said petition. It is true, as contended by counsel for defendant, the report of the commissioners
The seventh objection presented against the report of the commissioners is only a different mode of presenting the same objection stated by counsel for defendant in their third and sixth objections thereto. What we said there is equally applicable to this objection and fully disposes of it.
The eighth objection urged against the report is its alleged failure to state where the starting point, route and terminus of the proposed levee were, and whether the starting point, route and terminus of the proposed district and the proposed locations thereof were in all respects proper and feasible. This contention is not borne out by the record. The report states that “the plan of improvement as specified therein is entirely feasible,” and with great particularity the plans are clearly and specifically stated upon all points, as required by section 8326.
What we have here said regarding the petition filed with the county court, praying for a judgment incorporating the Cap-Au-G-ris Drainage and Levee District, the appointment of commissioners, their report to the county court, and the judgment thereof incorporating the district, applies with equal force to the first assessment of benefits and damages received and sustained by the land affected by the proposed work, for the reason that the assessment was asked for in the same petition, was made by the report, and the same was confirmed by the same judgment of the county court, which incorporated the district. The judgment is an entirety and is final and conclusive in all of its parts.
II. The tenth, eleventh and twelfth assignments of error presented by counsel for defendant relate to the action of the trial court in upholding the action of the commissioners in contracting an indebtedness of $10,000 or $11,000, expended in constructing the
Let it be conceded, yet we do' nqt decide the question, that the commissioners acted outside of and beyond the scope of their authority in creating said indebtedness, still we are unable to see from this record how the defendant can question that matter at this late date. The supplemental petiti'on of the commissioners asking for the so-called second levy recited the fact that they had incurred the indebtedness mentioned and had expended the money in constructing the drainage system, and asked for an additional assessment with which to pay that indebtedness and for certain other things mentioned in the petition. It is the contention of counsel for plaintiff, if we correctly understand their position, the right of the commissioners to create the indebtedness has been adjudicated by a court of competent jurisdiction, and it cannot be again tried in this case.
Section 8337, Revised Statutes 18991, in express terms, authorizes the commissioners to ask for a further or supplemental assessment when the court is satisfied that the first is insufficient to complete the work undertaken. The commissioners filed such a petition before the county court and asked for the supplemental assessment with which to liquidate and pay off said indebtedness. The defendant and others appeared in court and filed a remonstrance protesting against making the supplemental assessment. A trial was had upon the issues thus joined which resulted in favor of the commissioners and a judgment making the assessment prayed for. From that judgment an appeal was duly taken to the circuit court, where a trial was had de novo, which again resulted in a finding
The validity of that judgment is assailed by counsel for defendant for the reason assigned, that it was rendered without notice to their client. It is conceded by counsel for plaintiff that defendant was not notified of the fact that the petition asking for the second assessment had been filed in the county court, or that a trial would be had thereon, without it can be successfully maintained that when he entered his appearance in court, by petitioning the court in the first instance to incorporate the district and order the improvements made, he was in court at all times and for all purposes until the case was fully and finally disposed of. To be a little more specific as to the position and contentions of opposing counsel:
Counsel for defendant contends that the second assessment is invalid, null and void, for the reason that he was not notified of the proceedings which resulted in making the assessment, and that the judgment of the county court making' the same, and the judgment of the circuit court confirming that of the county court, are also null and void, notwithstanding the fact that section 8337 authorized the county court to make assessment “without notice” to the landowners. That section of the statute is assailed as being unconstitutional because it authorizes the taking of property without due process of law.
While upon the other hand, counsel for plaintiff insist that when defendant entered his appearance by signing the petition asking the county court to have the improvements made, he was in court for all purposes and remained there as long as the court had any duties to perform in the case, and until it was
- In our judgment counsel for plaintiff have correctly construed said article 5. It requires a petition to be filed with the county court, signed by the landowners, praying for a judgment of incorporation of the drainage company, and requiring certain things to be stated therein, among others, that notice shall be given to all owners of lands affected, that commissioners should be appointed to view the premises and report to the court certain things, among others, the amount of the benefits the lands would receive, and the amount of damages, if any, they would sustain in consequence of the proposed improvements, and the probable cost of the improvements. That in pursuance thereof commissioners were appointed.; that they viewed the premises and found and reported that there were 3,500 acres of land which could be reclaimed by the construction of the proposed levees and ditches at a probable cost of $12,247.17, and found and reported that said 3,500 acres of land would be benefited from $25 to $30 per acre, and that the damages were $-, an inconsiderable sum, far less than the aggregate amount of the benefits which were from $87,500 to $105,000, and far below the sums of the
This view is borne out and strengthened by section 8337, which provides that upon a supplemental report being filed the court may enter an order making the supplemental assessment without notice to the landowners affected thereby. The Legislature evidently understood that the landowners were in court at all stages of the procedure, and for that reason thought and provided by said section 8337 that the subsequent levy should be made without notice to them, thereby saving time, cost and expense.
And this view is again reinforced and strengthened by the fact that the article provides that in the first instance the commissioners should fix the maximum amount of benefits each tract of land would receive by the proposed improvements and the aggregate amount thereof, and to state the probable cost of the improvements.
Under this view of article 5, not only was defendant in court all the time the proceedings were pending, but it is also true that all the benefits were assessed in the first instance, which was $25 to $30 upon each and every acre of land embraced within the district, and section 8337 authorized the court, upon the filing of the second report by the commissioners, if the first installment of the assessment was not sufficient to complete the work, then to order a supplemental installment to be paid out of the benefits previously assessed against the property. In this manner installment after installment might be ordered paid until all of the benefits assessed against the lands would be exhausted and paid by the landowners. The very object and purpose of the Legislature, in having the maximum amount of benefits assessed in the first instance, and then providing that they should be paid on estimates or in installments, was for the benefit and protection of the landowner. In that manner no
It is apparent from the face of this record that plaintiff and his counsel took this same view of the law while the case was pending in the county court, for when the commissioners filed their petition for the supplemental assessment, defendant appeared without notice, filed a remonstrance thereto, and thereby tendered issue to the court for trial, one of which questioned the validity of the indebtedness before mentioned.
A trial was had upon the issues, which resulted adversely to defendant, and from that judgment an appeal was taken to the circuit court, where a trial de novo was had, which again resulted in a judgment against him and in favor of the assessment. If he and his learned counsel did not consider themselves in court at that time, why then did he and they so vigorously oppose the assessment in both of those ■courts ?
We must, therefore, hold that defendant had his
The conclusions above reached also dispose of the twentieth and twenty-first assignments.
III. The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth assignments presented by counsel for defendant regard the regularity of the entry, extension and certificate of the tax assessments upon the tax-books and back tax-books of the county, and the regularity of the certificate of authenticity of the county clerk attached thereto.
At an early date in this State, under the statutes then in force, some of the objections here urged by defendant might have been held valid, but the more liberal statutes of recent years and the decisions of this court construing them deprive these various assignments of all merit and reduce them to the rank of technical objections.
Sections 9179, 9202 and 9323, Revised Statutes 1899, read as follows:
Section 9179: “No assessment of property or charges for taxes thereon shall be considered illegal on account of any informality in making the assessment, or in the tax lists; or on account of the assessments not being made or completed within the time required by law.”
Section 9202: “Any failure to deliver the assessor’s or collector’s books within the time required by this chapter shall in no way affect the validity
Section 9323: “Any failure to make or complete the ‘back-tax books’ within the time required by the three preceding sections, or any informality in making said ‘back-tax books,’ shall in no way affect the validity of the same.”
Under these sections this court has many times held that when an assessor makes out his assessor’s books, jurisdiction attaches and the rest of the proceedings are only directory.
And in the case of State ex rel. v. Phillips, 137 Mo. 259, this court held that, under Revised Statutes 1889, sections 7563, 7584 and 7702, which are the same as sections 9179', 9209 and 9323, Revised Statutes 1899', mere informalities in making assessments of property or charges for taxes thereon, or in the tax lists, or on account of the assessments not being made or completed in the time required by law, and that no informality in making the back tax-book, should affect its validity, and were not defenses in an action to collect back taxes. To the same effect are the following cases: State ex rel. v. Harper, 83 Mo. 670; State ex rel. v. Bank, 120 Mo. 161; Thomas v. Chapin, 116 Mo. 396; State ex rel. v. Hurt, 113 Mo. 90; State ex rel. v. Hutchinson, 116 Mo. 399; State ex rel. v. Bank, 144 Mo. 381; R. S. 1899, secs. 9179, 9329; State ex rel. v. Carr, 178 Mo. 229.
The broad principle announced and underlying all of these cases is, that when a valid assessment is shown, its entry upon the tax-book and the failure of the property-owner to pay it when due, a good cause of action is made out, and that all other requirements and proceedings are mere formalities and intended to assist and facilitate the collection of the taxes, and are
In addition to the curative statutes before mentioned, section 8344, Revised Statutes 1899, provides that the provisions of said article 5 should be liberally construed in order to promote the objects and purposes of the enactment.
Under these liberal provisions of our statutes we must hold that none of the errors assigned and discussed in this paragraph of the opinion are well taken.
IY. It is next insisted by defendant that plaintiff, the collector of revenues of Lincoln county, has no authority to maintain this suit.
Counsel cite no authority in support of that proposition, while counsel for plaintiff cites us to sections 8332 and 9194, Revised Statutes 1899:
The former section provides that, “If assessments are not paid when due, the commissioners shall certify the same to the county clerk óf the county in which the delinquent lands are situated as due and unpaid for such work, and the county clerk shall enter the same on the tax list for such county next thereafter to be made against the lands benefited, and the same shall be collected in the same manner that State, county and township taxes are collected, excepting only that the personal property of individuals shall not be liable to seizure and sale therefor. ’ ’
Sections 9194, 9291, 9302 and 9309', Revised Statutes 1899, read as follows:
Section 9194: “As soon as the assessor’s book shall be corrected and adjusted, the clerk of the county court, except in St. Louis city, shall, within ninety days thereafter, make a fair copy thereof, with the taxes extended therein, authenticated by the seal of the court, for the use of the collector; and where the assessor’s book is in two or more volumes, such copy thereof shall be divided into volumes in the same man
Section 9291: “All real estate upon which the taxes remain unpaid on the -first day of January, annually, shall be deemed delinquent, and the said county collector shall proceed to enforce the lien of the State thereon, as required by this chapter; and any failure to properly return the delinquent list, as required by this chapter, shall in no way affect the validity of the assessment and levy of taxes. . . .”
Section 9302: “If, on the first day of January, 1880, any of said lands or town lots contained in said ‘back tax-book’ remain unredeemed, it shall be the duty of the collector to proceed to enforce the payment of the taxes charged against sucb tract or lot, by suit in the courts of competent jurisdiction of the county where the real estate is situated, which said courts shall have jurisdiction without regard to the amount sued on, to enforce the lien of the State or sucb cities. . . .” -
Section 9309: “Fees shall be allowed for services rendered under the provisions of this chapter as follows : To the collector, except in sucb cities, four per cent on all sums collected; in sucb cities two per cent on all sums collected — sucb per centum to be taxed as costs and collected from the party redeeming. To the county clerk, for making the ‘back-tax book,’ twenty-five cents per tract, to be taxed as costs and collected from the party redeeming such tract. To the circuit clerk, justice of the peace, sheriff and printer, such fees as are allowed by law for like services in civil cases,
From reading these statutes it is clearly seen that they authorize and empower the plaintiff to institute and maintain this suit, and it has been so decided in the case of State ex rel. v. Angert, 127 Mo. 456.
We must, therefore, decide this contention against defendant.
Y. Having disposed of defendant’s assignments of error, we now come to the consideration of those presented by counsel for plaintiff.
The trial court found that the taxes sued for in the first three counts of the petition were barred by the Statute of Limitations, and, consequently, entered judgment for defendant thereon.
As disclosed by the record, the first assessment' was made due and payable on the first day of January, 1895, and the second on July 1st of the same year. This suit was begun December 28, 1900. Section 8332 provides that “if assessments are not paid when due, the commissioners shall certify the same to the county clerk ... as due and unpaid, ’ ’ and that the latter shall enter the same in the tax-book to be made against the lands benefited, and the same shall be collected the same as State and county taxes are collected. That section is a part of article 5 which authorizes such improvements to be made.
The record also shows that the delinquent tax list mentioned in section 8332 was not certified to the county clerk until July 15, 1896. Section 9291 provides that all real estate upon which the taxes remain unpaid on the first day of January, annually, after they are payable, shall be deemed delinquent,
According to these statutes, the taxes mentioned in the first two counts became due January 1, 1895, but did not become delinquent until January 1, 1896, and the second assessment not being due until July 1, 1895, would not become delinquent until January 1, 1896.
And section 9813 provides that “no action for the recovery of taxes against real estate shall be commenced, had or maintained unless commenced within five years of delinquency.”
From reading the sections of the statute above mentioned it will be seen that they do not authorize suit to be brought to recover taxes at any time after they become due and payable, but only after the date they should have been returned delinquent, as required by law, can suit be brought for the recovery thereof.
In the case of State ex rel. v. Carr, 178 Mo. 229; this court held that suits for recovery of taxes are not barred if begun within five years after they are returned delinquent. That case also holds, in the language of the statute, that taxes are not delinquent until after the first day of January following the year in which they become due and payable. Under that decision, as before stated, the taxes due January 1st and July 1, 1895, did not become delinquent until January 1, 1896, and those due January 1, 1896, did not become due until January 1, 1897.
YI. The court also held that assessment number 3, due January 1, 1896, was also barred by the Statute of Limitations.
That ruling of the court is based upon the follow
“The court finds from the evidence in the cause that the original petition in said suits, respectively, of plaintiff v. A. C. Wilson et al., was filed with the clerk of said Lincoln county on the 28th day of December, 1900, but under the facts shown in evidence, said suits cannot be held as having been instituted against A. C. Wilson until the third day of April, 1901, at which date Wilson entered his appearance to said suit.”
Counsel for defendant attempted to show that at' the time the petition was filed in the office of the circuit clerk, Mr. Avery, one of the counsel for plaintiff, instructed the clerk not to issue summons for the defendant until further notified.- But this record is perfectly barren of all evidence tending to prove any such instruction was given by Mr. Avery; but upon the other hand Mr. Avery in unequivocal language testified- that he gave no such instruction.
The filing of the petition with the clerk of the court, under the decisions of this court, is the bringing of a suit within the meaning of our code, notwithstanding summons is not issued until after suit was barred. [Lumber Co. v. Wight, 114 Mo. 326; McGrath v. Railroad, 128 Mo. 1.]
We therefore hold that none of the causes of action stated in the various counts of the petition were barred by the Statute of Limitations. Under the undisputed facts of this case, as disclosed by the record, the plaintiff was entitled to recover upon each and all of the counts stated in the petition; and the trial court erred in not so holding.
The judgment rendered against the plaintiff is, therefore, reversed, and the cause remanded, with directions to enter judgment for plaintiff for the taxes as due as stated in all counts of the petition, together