279 Mo. 429 | Mo. | 1919
Defendant appeals from a judgment rendered by the Livingston Circuit Court in a
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, 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 peti
II. There is another adequate, single reason for the conclusion that the questions discussed in Paragraph' 1 cannot aid appellant.
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.
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
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.