State ex rel. McBride v. Sheetz

| Mo. | Jul 9, 1919

BLAIR, P. J.

Defendant appeals from a judgment rendered by the Livingston Circuit Court in a suit for drainage taxes. The district was organized in 1999.

. rgamza ion.

I. (1) It was unnecessary for the petition praying for the organization of the drainage district to state whether the ditch was to be open or closed. The statute then in force (Sec. 5579, R. S. 1909) required no such allegation. [State ex rel. v. Taylor, 224 Mo. l. c. 415, 416 et seq., and cases cited.] The cases cited from other states were decided under materially different statutes. (2) The report of the first board of viewers (Sec. 5580, R. S. 1909), when fairly construed, shows it was the result of an “actual view” of the proposed improvement. It shows a “thorough examination” of the proposed drainage system from end to end and was accompanied by a plat showing “the line examined by” the viewers. Further, the .statute does not require the report to show an actual view. We think it does so, nevertheless. The point is ruled against appellant. The case of Marsh et al. v. Supervisors, 42 Wis. l. c. 514, et seq., was decided under an assessment statute which specifically required the assessor to make affidavit that he had actually viewed all real estate assessed. No affidavit of any kind was made. The principle of that decision is not relevant to the question here. (3) The first notice to the landowners described the proposed ditch exactly as it was described in both the report of the first viewers and the petition. It also gave notice that the report had been filed. The decision in State ex rel. v. Wiethaupt, 254 Mo. 319" court="Mo." date_filed="1914-01-03" href="https://app.midpage.ai/document/state-ex-rel-ruppel-v-wiethaupt-8018616?utm_source=webapp" opinion_id="8018616">254 Mo. 319, turned upon the fact that the description of the proposed improvement in the first notice and the description in the report of the viewers were materially different. That decision announces no principle which condemns the notice in this case. Notice of the report is required and in this case was given by stating that it was filed, and, among other things, recommended the establishment “of said ditch.” The “said ditch” was described in the notice just as in the petition and in the report. The objection is untenable. (4) It is contended the second notice to landowners misdescribed several hundred acres of the land in the district. This notice was prescribed by Section 5587, Revised Statutes 1909. The statute required the notice to be “directed by name to every person returned by the engineer and viewers as the owner of every lot and parcel of land affected by the proposed improvement or of any interest therein, and also by name, to all others, who it may be ascertained own such land or any part thereof, and also generally to all other persons, without mentioning their names, who may own such land, or any part thereof, or any interest therein, notifying them of the general object and nature of the petition and report of the engineer and viewers, and that, on the day so fixed, the county court will hear said petition and report of the engineer and viewers,” etc. There is no requirement that the notice describe the lands at all. Notice of the pendency of the petition and of the report of the first viewers had already been given, and all interested parties were affected thereby. The report mentioned in Section 5587 is that of the second board of viewers, provided for by Section 5584, Revised Statutes 1909. That section required the report to include or be accompanied by a plat, which was required to show the separate tracts affected and the names of the owners thereof. No other report of the lands affected was required by this section. There is no contention this plat did not correctly describe the lands. Further, the point that a misdescription occurred is based-upon an order of the county court requiring township “57” to be substituted for “56” on “page 138 thereof” (of the report), and nothing appears to show how this affected' the description of any of the lands in the district or that it in any way affected appellant’s land. It was apparently a clerical error which was subject to correction from the face of the report itself, for the reasons given this contention must be overruled. (5) The report shows a plat and profile showing the estimated cost of the improvement were filed with the report, and the court found these estimates correct. The objection that-no estimate was made is not sustained by the record. (6) Section 5585, Revised Statutes 1909, provides that any landowners affected “may appear before the viewers and freely express their opinions on all matters pertaining thereto.” It is argued that notice of this right should have been given. The act required no special notice thereof. The parties were in court when the viewers were appointed and ordered to view the proposed improvement and mark out its line, etc. They were at liberty to appear before the viewers. Notice was required and given of the hearing on the report and full opportunity afforded to except to the report, This notice satisfied the due process of law clause so' far as the report is concerned. (7) It is urged that no notice advised appellant that a bond issue was contemplated as a method of securing funds. The statute did not require specific notice- of this intention. Notice of the pendency of the petition was given, and the petition contained a prayer for the issuance of bonds in statutory form. This was all that was required. Further, this court has held that even if there was no authority to issue bonds at all this would be no defense to a suit for the collection of an installment of the tax. [State ex rel. v. Eicher, 178 S. W. l. c. 174.]

II. There is another adequate, single reason for the conclusion that the questions discussed in Paragraph' 1 cannot aid appellant.

Attack^1

There can be no doubt there was at least a color-able effort, in good faith, under a valid, existing law, to incorporate the drainage district; that the district has been and is exercising powers invested such corporations, and that the State has not attempted to inquire into the legality of its organization. The validity of the incorporation is not open to collateral attack in a suit for taxes. [Kayser v. Trustees of Bremen, 1.6 Mo. l. c. 90; Stamper v. Roberts, 90 Mo. 683" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/stamper-v-roberts-8008899?utm_source=webapp" opinion_id="8008899">90 Mo. 683; Orrick School District v. Dorton, 125 Mo. l. c. 443; City of St. Louis v. Shields, 62 Mo. l. c. 251, 252; State ex rel, v. Blair, 245 Mo. l. c. 687; Burnham v. Rogers, 167 Mo. l. c. 21; State ex rel. v. Birch, 186 Mo. l. c. 219.]

Ditch Assessment Book.

III. It is contended no ditch assessment book was made up as provided in Section 5602, Revised Statutes 1909, and, for that reason, the judgment cannot stand. Under the general- revenue law the assessor’s book (Sec. 11370, R. S. 1909) embodies the result of the assessor’s action, and “a fair compliance with” the statutory provisions respecting it jg essential to the validity of the tax; this is true because “an assessment is indispensable to the levy of a valid tax” (State ex rel. v. Schooley, 84 Mo. l. c. 452), and the assessor’s book, as corrected by the boards of equalization, is the very foundation of the assessment made for general taxes. [Sec. 11407, R. S. 1909.] It is quite as true that there can be no valid drainage tax without a valid assessment. In the case of drainage taxes in suit, however, the ditch assessment book had no relation to the assessment itself. That' assessment was made by the county court (Secs. 5599 and 5601, R. S. 1909) and became a lien upon the lands in the district in the proportion the sums assessed bore to the total benefits assessed. The basis of the assessment was the report of the viewers and engineer as confirmed by the court. The ditch assessment book required by Section 5602, supra, could be only a tabulation of assessments already made and already a lien by express statute. It was enacted (Sec. 5600, R. S. 1909) that the general la>w should apply. Under that law informalities even in the assessment do not invalidate the tax. [Sec. 11383, R. S. 1909; State ex rel. v. Wilson, 216 Mo. l. c. 287.] The assessment of the drainage tax under the Act of 1905 (Sec. 5602, R. S. 1909) was wholly independent of the ditch assessment book. The validity of the assessment in no way depended upon the hook. The clerk should have performed his duty and made up the book, but if he did not that does not render the tax uncolleetable. It falls within the rule that regulations designed to secure order, dispatch or system in proceedings for the assessment and enforcement of taxes are not mandatory in the sense that disregard of them invalidates the tax or prevents its recovery. [State ex rel. v. Phillips, 137 Mo. l. c. 265.]

„ . Limitations.

IV. This suit was brought October 7, 1914, for the taxes of. 1910, 1911, 1912 and 1913. The plea of the Statute of Limitations is unavailing. [Drainage Dist. v. Bates Co., 269 Mo. l. c. 91.]

The judgment is affirmed.

Graves, J., concurs; Bond, J., concurs in Paragraph 2 and the result; Woodson, J., absent.