State ex rel. Douglas v. Redman, 270 Mo. 465

270 Mo. 465 | Mo. | 1917

GRAVES, J.

— This case reaches us through a certification from the Springfield Court of Appeals, the grounds for such certification being that the record involves constitutional questions as well as a construction of revenue statutes. It is sufficient to say that constitutional questions were duly lodged in the answer. Judge Sturgis for the Springfield Court of Appeals thus states the case:

“This is a suit for delinquent drainage ditch taxes assessed against land owned by defendant. The suit is brought in the name of the State at the relation of the Collector of the Revenue of Dunklin County, Missouri, for the use and benefit of Drainage District Number Four of that county. The record discloses that such drainage district is one formed under the supervision of the county court as provided by article 4, chapter 122, Revised Statutes 1899, which as amended in 1905, is now article 4, chapter 41 (Secs. 5578-5635), Revised Statutes 1909. The controversy is as to the amount of special taxes properly ’ assessed against this land, the defendant conceding and offering to pay $59, while plaintiff demands $115.56. The amount defendant concedes and is offering to pay is the original (annual) assessment made or confirmed by the county court under section 8288, Revised Statutes 1899 (sec. 5588, R. S. 1909), and apportioned into installments under section 8300, Revised Statutes 1899 (Sec. 5601, R. S. 1909). It appears that the county court some five or six years after the drainage district was formed and the confirmation of the original assessments made by the viewers and engineers appointed for that purpose undertook, hy its order of April 29, 1912, to ‘rearrange’ and increase the amounts of the. annual installments yet to fall due for the years 1912 to 1924 inclusive. The occasion for making this order, as we gather from the record, is that because of some error the county court issued and sold bonds to the amount pf nearly $56,000, hut levied assessments against the lands within the district fer an amount of only about $36,000. The increased assessments are to cover this deficiency of some $20,000, and provide a fund, otherwise insufficient to pay the bonds at maturity. It is agreed that if the county court has power and authority to make this order of April 29, 1912, increasing the annual assessments, then the amount demanded is due; otherwise, only the amount tendered is due. The defendant contends that the county court exhausted its power to make assessments' in its order confirming the report of the yiewers and engineers in connection with the formation of the district and could not at a later date make another order increasing the amounts then assessed.

“The defendant’s answer contains these allegations: ‘And defendant further answering says that plaintiff is attempting to collect from him a second assessment which-was made without notice to defendant, and defendant says that the county court of Dunklin County had no authority to make such second assessment, as was done in this instance, inasmuch as such second assessment was made without any notice and made after the completion of the work to he done in said drainage district and was made without due process of law, and it constituted the taking of private property for public use without compensation in violation of the Federal and State Constitution, to-wit: Section 1 of the Fourteenth Amendment of ‘ the Constitution of the United States, and section 30 of article 2 of the Constitution of Missouri. Wherefore, defendant says that said second assessment or arrangement wherein his taxes were increased from $59 to $115.56, is null and void, and of no effect and he asks judgment cancelling said order of the said co'unty court for the reason that the same is null and void and without authority and in violation of both the Federal and State Constitution and that plaintiff may be compelled’ to accept the said sum of $59, the original amount due under the original assessment made by the viewers and engineer in said drainage district and gonfirmed by the final order of the county court in approving the final report of the said viewers and engineer in said drainage district.’ In this connection the record shows that no notice was. given to the landowners as to the action of the county court in making this order of April 29, 1912, increasing the assessments. The plaintiff’s contention is that the landowners were already in court for this purpose because of receiving notice of the original proceedings.”

Such other matters as may be material can be noted in the course of the opinion. The foregoing outlines the ca$e.

Assessments Benefits. . I. The question involved is single and plain. Whether easy of solution remains to be seen. The validity of the order of the county court of Dunklin County of date April 29, 1912, is the turning point in the case. The surrounding facts are: The county court in fact approved of an amount of benefits as- against the land involved herein, which, exclusive of interest, is more than sufficient to pay all previous amounts, and all assessments to be made under' this order of April 29, 1912. However, at the time of the organization of the district, .and whilst approving the report of the viewers, and approving the assessments of benefits aforesaid against the’land in question, the county court approved and provided for annual assessments, which was discovered would not meet the bond issue which the court had directed to be issued. This bond issue was 'for $55’977.77. They were sold for $56,077.77, and that sum placed to the credit of the district. When- the work had been done it was found that there was a surplus of $8,000 and this was used in the discharge of the obligations and accrued interest. Although the court directed the issuance of bonds in the sum of over $55,000, as stated supra, it only approved and directed assessments against benefits in something over 36,000, leaving a difference between the bond issue and the provision for its payment of more than $19,000.

This difference was reduced, by the application of the surplus aforesaid, to a little over $15,000. In 1912 when the - discrepancy between the bonded debt and this approved assessment was discovered, the order of April 29,1912, for an increased assessment for the remaining years, was made at the instance of the bond-holders. Under the original assessment the amount due from respondents’ land for 1912, wa's $59, but under the order of April 29th, supra, it was $115.56. The difference was the real amount in dispute, defendant having tendered the former sum, and kept his tender good by deposit.

Defendant was not the owner of the land in question at the organization of the district, but' bought it afterward, and prior to the order of April 29th, supra: It is admitted that no notice was given to landowners prior to making this-order of- April 29th, but that the previous owner of the land involved was properly in court at the organization of the district,- is not questioned. The trial court held that the defendant was not liable for more than the $59, and that the order of April 29th, - supra, was invalid. This view is reached from several angles, and these we take in order. •

Power to Additionai Assessments. II. It is first contended that after the county court had made its. original assessment against the lands of the district its power in the premises was fully exhausted, and no further- exercise of the power to levy assessments could be valid. This on the theory that under the county court act there was no' specific grant of power to make a second or additional assessment, even though the benefits found are in excess of the assessment made. Just how the discrepancy between the authorized bond issue and the first assessment of taxes made, occurred, does not clearly appear from the record. It does appear, however, that the reported benefits were some thousands more than the bond issue, and the directed assessments of taxes some $19-^00 less than the bond issue. If the county court exhausted its power, when it made the first assessment of taxes against the lands of this district, then we have an end to this controversy. •

In 1913, the Legislature (Laws 1913, pp. 271 and 281) made specific provisions for additional levies of assessments, and from this it is argued that we have a legislative construction to the effect that no such power previously existed. . If this contention, be true it is at best only persuasive, rather than binding authority. We must go to the previous law, and from its context determine the powers of the county court. This. drainage district was organized under article 4, chapter 122, Be-vised Statutes 1899, as amended by the Act of 1905. We will have to go to the said Act of 1905 for most of the law of this case, as it was in full effect at the organiza-. tion of the district. This act repealed many sections of article 4, chapter 122, Bevised Statutes 1899, and enacted new sections in lieu thereof. These new sections are the applicable law, and if they, when considered with the old sections, furnish no basis for a subsequent assessment of the lands in the district, defendant is right in his contention. That there is no express authority for such action is clear, and the real question is to determine whether or not the then law precludes a clear inference of such .a power.

By section 8284 (Laws 1905, p. 182) it is provided that after the county court has determined that the improvement should be made, it then shall appoint an engineer and three viewers. These viewers are given specific duties to perform. Among other things to be done by this board, this section says:

‘ ‘ They shall also make and return a schedule of all lots and lands and of public and corporate roads or railroads that will be benefited, damaged or condemned by or for the improvement, and the damage or.benefit to each tract of forty acres or less, and make separate estimates of the cost of location and construction, and apportion the same to each tract in proportion to the benefits or damages that may result to each.”

In the same act, section 8286 reads:

“The viewers shall have the power to condemn the right of way for the ditch or other’ improvement; and when damages are allowed persons, their benefits, if benefited, shall be taken into consideration, and their assessments for benefits shall be reduced by the amount of their damages; and if not benefited they shall be allowed and paid compensation for their damages.”

At first blush one might be impressed with the view that assessments for benefits should be the same as the-taxes levied by the county court, but we are inclined to the idea that this section has reference solely to condemnation of lands and the adjustment of damages therefor. This, because of other sections which follow, as well as those which precede it. Thus in section 8284. these viewers are required to apportion the cost of location and construction in proportion to the benefits found, but not necessarily up to the benefits found. In other words, they might find that a certain tract would be benefited $800, but further find that its due' proportion of the cost of location and construction would be only $400.

Section 8287 of said act provides that upon the incoming of the report of the viewers, which report must give the part of the cost actually apportioned against each tract of land, the court shall set the same down for hearing and give notice of such hearing.

In the instant case twenty-year bonds were to be issued, and the apportioned cost of construction would cover a period of twenty years. This cost to the land involved here was an annual payment of $59 for the .twenty years, which was raised by the subsequent order to more than $115 per year.

Now it must be noted that ‘the landownels, under .the statute, supra, were entitled to a hearing upon the amount of benefits assessed against their lands, as well as the amount of the proportionate, cost of construction to be charged against that land. The law provides for but one time for such a hearing, and that is prior to the approval by the county court of the viewers’ report. Passing now from a consideration of said section 8287, we come in order to 8288 (Laws 1905, p-. 184)' which-reads:

“The court shall first determine whether the required notice has been given. If it finds that due notice has not been given, it shall continue the hearing to a day to be fixed by the court, and cause the notice to be given as provided in section 8287; and when the court finds that due notice has been given, it shall examine the report of the engineer and viewers, and if it appears to ■ the court that the estimates of the cost of location and construction and of damages and benefits to each •tract are correct, and that the apportionment of the cost of location and construction, is, in proportion to the benefits and damages to each tract, in all things fair and just, it shall approve and confirm the same; if, however, the county court shall find that the apportionments reported by the engineer and' viewers are unfair or unjust, and, as- made, ought not’ to be confirmed, It may, 'by an order of record, amend the report upon the evidence so as to mate the apportionments fair and just in proportion to the benefits or damages; if the county court shall find that the location or specification of the ditch or other improvement should be changed it may by an order.of record change such location and dimensions, provided -that, before the county court shall change the location reported by the viewers,- the parties interested shall convey or cause to be conveyed to the .drainage district, a right-of way for the ditch or other improvement upon the route selected by the county court.”

The italics here, as elsewhere in the quotation of these statutes, are ours.

This section again emphasizes the fact that the apportionment of the cost of construction to the several tracts of land is one primarily for the viewers, but thereafter to be confirmed by the court, or modified and then confirmed by .the court. Following the same thought, i. e., that the apportionment of the cost of construction, as made- by the viewers, is a matter for .court determination when the report is up for consideration, after notice given, we find this language used in section 8292 (Laws 1905, p. 185):

“Any person whose lands are affected by the proposed improvements may, on or before the day set for the hearing by the court, file exceptions to the apportionments made by, and to the action of, the viewers upon, any claim for compensation or damages. The county court may hear testimony and examine witnesses upon all questions made by such exceptions, and for that purpose may compel the attendance of persons as witnesses and the production of other evidence, and its decision upon each of the exceptions shall be entered of record.”

Note the language. The landowner must file exceptions to'the apportionments made.. These exceptions must be tried out by the court, and if the report of the viewers is sustained, it is a final judgment as to the landowner, unless he. appeals therefrom and reverses the action -of the county court. The question then arises, if it is afterward found that by this final judgment the amount -is too small, is it not still a finality so far as the landowner is concerned? We think so. Both parties have had their day in court. Judgment has been rendered, and there is no provision in the law for a re-assessment of these cosfs of construction. By the Act of 1913, the Legislature recognized that further authority was necessary- for a re-assessment, and amended the law, but that act cannot be made retroactive, and applied to this case.

. The Act of 1905 contemplated but one action by the county court. ■ It, of course, contemplated that the charges against all the tracts in the district would pay off the bonds issued, but it further contemplated that all this would be done at the hearing provided for by the law, and not by -future orders of the court. It contemplated that the final judgment approving the report would have the apportionments against the lands equal to the cost of construction, but from this it does not follow that after a different final judgment is entered, power is left in the court to correct it four or five years later. Absent a • statute authorizing later action by the court (and there is none) this action of the county court was coram non judice, and void. Whether equity might reach the case, we do not consider in this, a law case. It -may be that the Act of 1913 was the outgrowth of this case, but from any angle it is unavailing here. All through the Act of 1905 runs the idea that the viewers must first act as to the assessment of the costs of construction as against each tract of land. [Vide Sec. 8298, Laws 1905, p. 187.]

The payment of the bonds issued is limited to the proceeds of these assessments of cost of construction. If they pay the bonds, well and good, but if they do not, there is no further recourse under this Act of 1905, under which this district was organized. Of this Act of 1905, sections 8301 and 8301a read:

“Sec. 8301. The said assessments, after the confirmation by the county court as herein provided, together with the interest thereon, as so fixed by the court, shall be entered by the county clerk, in a special book, to be known as the ditch assessment book, which shall be provided by him at the expense of the county, and annually thereafter, until such assessment and the interest thereon shall be fully paid, the county clerk shall enter, opposite each tract of land, upon a ditch tax book in columns to be provided for that purpose, the amount of the installment of such assessments for sneh year, and the interest for snch year on all unpaid installments not past due, as fixed. by the county, court as herein provided; the said installments of said assessments and the interest thereon shall be applied to the payment of the bonds, principal and interest, issued pursuant to this article, and, except as herein provided, to no other purpose, and the payment of such ‘bonds shall be thus secured.

“Section 8301a. The county court may, if prayed for in the petition, issue bonds in denominations of not less than one hundred dollars, and sell the same to meet the expenses of locating and constructing any ditch or improvement under the provisions of this article, which bonds shall mature, at annual intervals, commencing after a period of two years, for not exceeding twenty years, bear interest at not to exceed six per cent per annum and be payable semi-annually at the office of the county treasurer. Such bonds shall be sold by the coupty treasurer, without expense to the county, to the highest and best bidder, after the county court shall have fixed the time and place of such sale, and given notice thereof, by publication, in some weekly newspaper published in the county, but in no case shall any such bond be sold for less than par: Provided, such bonds shall show upon their face the purpose for which they are issued and shall be payable out of moneys derived from such assessments and none other.” Again the italics are ours.

But reverting to section 8301, for another thought, it clearly appears therefrom that the lawmaker only contemplated the one action by the county court. This section only leaves (after the confirmation judgment of the county court has been entered) simple ministerial duties for the county clerk. It contemplates no further action by the court, nor dp we find in ihe statutes governing drainage districts organized by the county court, under this article 4 of chapter 122, Revised Statutes 1899, and the Act of 1905, any power or right to reassess the lands with the costs of improvements, until the Act of' 1913. County courts are of limited jurisdiction, and their powers must be gathered from the law. We find no law for the action of the county court in 1912, and it must fall.

Other Statutes Distinguished. III. We are cited to State ex rel. v. Wilson, 216 Mo. l. c. 282, as authority for the action of the county court in this case. The ruling- there is-not applicable here. We-were then discussing a township drainage district, organized under article 5 of chapter 122, Revised Statutes 1899. The district in question here was organized under article' 4, chapter 122, Revised Statutes 1899, as amended by Acts of-1905. In article- 5, chapter 122, Revised Statutes 1899, we had section 8337 which gave the county court express authority for supplemental assessments and it was upon this express statute, that we sustained the supplemental assessment without notice, because the statute so read.

We are also cited to the case of State ex rel. v. Bates et al., 235 Mo. 262. That case does not discuss the statutes we have here under consideration. That drainage district was organized under article 7 of chapter 122, Revised Statutes 1899. That article also' had section 8369, which (provided for an additional assessment. State ex rel. v. Young, 255 Mo. l. c. 635, is also cited. The drainage district there involved was' one organized under article 5, chapter 122, Revised Statutes 1899, and what we have said of State ex rel. v. Wilson, supra, applies to this case. It is not in point as subsequent assessments are specifically provided for' in said article. Under that law the jurisdiction of the' county court was expressly given. Not so in the ease at' bar. Barnes v. Construction Co., 257 Mo. l. c. 195, is cited, but it does not reach the question here.

We have been cited to no case in Missouri holding that under article 4 of chapter 122, Revised Statutes 1899, as amended by Acts of 1905, the county court has any power to take any step towards a second assessment. The Legislature so recognized this absence of power by granting the same by. the Act of 1913. Because other articles contained express power to the county court to make- such- subsequent assessments, does not help the plaintiff in' this case. The right to make this subsequent assessment must- be sought from the express provisions of the law under which the drainage district was organized. That law conferred no such power upon the county court, and its order of April 29, 1912, was void.

The judgment nisi was correct and is affirmed.

All concur;