State ex rel. McWilliams v. Bates, 235 Mo. 262

235 Mo. 262 | Mo. | 1911

Lead Opinion

BROWN, J.

— The relator is a citizen of Illinois and respondents compose the board of supervisors of the Des Moines and Mississippi Levee District No. 1. This action is prosecuted to compel respondents to levy a special tax to pay warrants issued to relator for excavating certain ditches for said levee district.

The Des Moines and Mississippi Levee District 1, hereinafter designated as the Levee District, was incorporated in 1903 under the provisions of article 7, chapter 122, Revised Statutes 1899 (now article 9, chapter 41, Revised Statutes 1909'), and embraces about 11,000 acres of land in Clark county, Missouri, subject to overflow by the Mississippi, Des Moines and Pox rivers.

It stands admitted that all necessary steps were taken through the circuit court of Clark county to organize this levee district; that its officers were duly elected; that a topographical survey of all the lands therein was made by a civil engineer, as required by section 8364, Revised Statutes 1899 (sec. 5706, R. Si 1909). That said engineer prepared plans, - maps, specifications and estimates for reclaiming and protecting from overflow the aforesaid 11,000 acres; and also that three commissioners were appointed to ascertain and assess against the several tracts of land in the district the benefits which said commissioners believed such lands would receive from the excavation of ditches and the building of levees, as planned by said engineer.'

It is admitted that some levees were constructed along the south side of the Des Moines river in 1872 to protect from overflow the lands which are now within the levee district.

The plans and estimates prepared by the engineer and filed with the board of supervisors called for expenditures as follows:

Excavating ditches, 53,250 cubic yards of dirt, at 10 to 14 cts. per yard..........$ 7,175.00

Building Des. Moines river levees, 194,824 cubic yards of dirt at 10 cts. per yard.. 191,482.00

Building Fox river levees, 232,113 cubic yards of dirt at 10 cts. per yard........23,211.00

Expense of survey, superintending work, sewer pipe and other incidentals ......5,132:.0O

$55,000.00

Up to this point, the legality of the proceedings which led up to this litigation are not challenged; but the engineer who made the plans for draining and protecting the lands of the levee district underestimated the actual cost of excavating the necessary ditches and building levees., to the extent of about $25,000; and this error on his part, together with an unanticipated overflow, which destroyed about $5000 worth of levees produced the deficit which resulted in this action.

The commissioners appointed under section 8365, Revised Statutes 1899 (See. 5707, R. S. 1909), assessed the benefits supposed to accrue from the aforesaid ditches and levees at $55,000, and apportioned said assessment among the several tracts of land in the levee district.

During each of the years of 1904, 1905, 1906 and 1907 the board of supervisors assessed twenty-five per cent of the benefits (ascertained as aforesaid) against the lands of the district, and these assessments yielded $13,750 annually, aggregating for the four years the sum of $55,000. In. the year 1905 an overflow of the Des Moines river washed away part of certain levees, theretofore existing, to replace which necessitated an unanticipated expense to the district of $5000. This expense was paid out of assessments levied to pay for new work on levees and ditches called for in the surveyor’s estimate, and thereby reduced the “benefit” fund to $50,000.

In the year 1905 one C'ortez Johnson, under an appointment of the board of supervisors, let .contracts to sundry persons for. building levees along the Des Moines river. The record does not recite at what price these contracts were awarded, but we gather from the evidence that the work contemplated by the same as all completed and paid for prior to May, 1906, at which time the district had expended for all purposes only the sum of $25,076.91. This apparently left of the “benefit” fund about $29’,929.09 unexpended.

While the financial condition of the levee district was in this condition, the hoard of supervisors in May, 1906', employed one W. B. Hazen to make further contracts for draining and protecting the lands of the district from overflow, and on June 26, 1906, after due advertisement, said Hazen awarded to relator a contract to excavate two ditches, one designated as •(loose Pond ditch, and the other as Hill Slough ditch, at 154/4 cents per cubic yard of dirt to be excavated. The aggregate amount of dirt removed in digging these ditches was 177,187 cubic yards, and the aggregate cost thereof was $27,021.40. This contract did not call for more money than the unexpended benefits hereinbefore recited; but had relator been paid for his work, there would have been left only a little over $2000 in said “benefit” fund; whereas the estimated cost of levees along Pox river was $23,211.30.

Notwithstanding the “benefit” fund would have been nearly exhausted by paying for the ditches contracted to the relator, the board of supervisors through their agent Hazen at once proceeded to contract with sundry persons to construct levees along Pox river, as originally planned, with the result that when relator completed the work awarded to him, and the Pox river levees were also completed, the levee district had created an indebtedness of about $30,000 in excess of the $5 5, GOO- originally estimated by the topographical survey made in the year 1903.

Warrants were issued by the levee district to the several contractors as their work progressed, and the builders of the Fox river levees seem to have sold their warrants to landowners for use in paying levee taxes assessed for the years 1906 and 1907, as provided in sections 82.65 and 8367, Revised Statutes 1899' (Secs. 5541 and 5710', R. S., 1900).

While relator’s contract antedated those made with parties who constructed levees along Fox river, the tax levies for 1906 and 1907 were so nearly consumed by the warrants issued for the Fox river levees and accepted in payment of taxes, that relator only received $664 for his entire work, and the remainder' of his warrants, $26,356.74, were protested by the treasurer of Clark county, for want of funds, to pay the same.

In February, 1909', relator made a written demand upon respondents'to order an assessment upon the lands of the district to raise funds to pay his warrants.; but respondents refused to order a levy to pay said warrants, or any part thereof. A majority of the voters of said levee district at the annual meeting in February, 1909, also refused to vote a levy to pay relator’s warrants. Whereupon relator brought this action to compel respondents to make a levy to meet his warrants.

It appears that the ditches excavated by relator-are not in all respects like the ditches contemplated by the original topographical survey upon which the benefits were assessed by the commissioners; but as the map of the levee district attached to relator’s petition does not designate by name the several sloughs, ponds, roads and rivers referred to in the estimates, contracts and evidence, we , find it difficult to ascertain just how much variance there is between the ditches as planned and those excavated by the relator.

We are able, however, to understand that what is called Goose Pond ditch was commenced a half-mile further north than originally planned, and was so constructed as to carry off the waters'of Rutherford pond and Leonard slough, which by the original plans, were intended to be drained through what is known as Hill’s slough. The additional cost of this half-mile ditch was $1273.99', but such change of plans appears to have rendered unnecessary the digging of a ditch from Leonard slough to Hill’s slough, estimated to cost $700, but which might have cost twice that sum if we are to judge by the miscalculations of the topographical surveyor regarding other work estimated by him.

This particular change of plans was rendered desirable by the discovery, after the topographical survey had been made, that a “sand cut” was forming at or near the north end of Goose Pond ditch, which would have rendered it impossible to keep that ditch open, without bringing through it the waters of Leonard slough. This change of plans, however, brought so much water through the Goose Pond ditch as to render necessary an unestimated expenditure of $3000 to construct levees along that ditch.

The other work performed by relator consisted of deepening a slough or ditch already in existence; and no complaint is made that this work was not done in the place originally planned.

The original plan for these ditches called for a width of six feet at the bottom, with a slope of two to one of the walls thereof, and evidently contemplated that they should be excavated with scrapers; but at the time of letting the contract, it was found that the ground was too wet to handle with scrapers, consequently the engineer and all the board of supervisors were of the opinion that these ditches should be excavated with a floating dredge boat, and made twelve feet wide at the bottom, with a slope of only one to ■one in the walls.

There is substantial evidence that this change in the slope of the walls of the ditches and the widening of the bottoms thereof only entailed an additional expense of about $300, but it will be observed that through miscalculations of the topographical engineer the excavation of these ditches required the removal •of 177,187 cubic feet of dirt instead of only 53,250 •cubic feet, as originally estimated. The estimate of the engineer who made the topographical survey placed the cost of excavating these ditches at 10 to 14 cents per cubic yard, while relator’s contract called for 15% cents per cubic yard, and by reason of this increased cost per yard of dirt, as well as the greatly increased amount of dirt removed above the amount estimated to be necessary, these ditches cost $27,021.41 instead of only $7175, as originally estimated.

While relator Was excavating the ditches under the contract awarded to him, several of the landowners of the district made complaint to his foreman about the excessive cost of the ditches; but none of them took any legal action for redress of any injury which resulted to them from the awarding of contracts calling for a greater expenditure of moneys than called for by the topographical survey and estimates before mentioned.

Relator claims that in making his bid for this work he was not shown the original pians of the topographical engineer, and knew nothing of any change of plans, and the evidence sustains his contention on this point. The relator testifies that very soon after the contract for excavating ditches was awarded to him, he caused his attorney to investigate the legality of his contract with the levee district.

Relator’s contract was let to him upon fair competitive bidding, and there is no complaint that the supervisors of the district or the engineer were not acting in good faith when they changed the plans of the ditches and entered into the contract with relator. Neither is there any evidence that relator failed to execute his contract in the utmost good faith.

Respondent’s amended return to the alternative writ, sets up the following defenses:

1st. The facts alleged and proven by the relator are not of sufficient importance to warrant this court in assuming jurisdiction of the cause.

2d. Relator’s warrants have not been reduced to judgment.

3>d. The total cost of improvements made by the levee district exceeds the benefits assessed, and to enforce the payment of relator’s warrants would result in depriving the landowners of the district of their property without due process of law — contrary to the 5th and 14th Amendment to the Federal Constitution.

4th. That the landowners were given no notice of the assessment of benefits upon their lands.

5th. That the aggregate of improvements made by respondents in protecting and draining the lands in the district amount to $35',000' more than the benefits assessed for said improvements; and as taxés equaling the amount of the benefits have already been levied and collected, no further levy can be made to pay for such improvements:.

6th. Relator’s contract called for the expenditure of money in excess of the benefits assessed as aforesaid.

7th. That the relator’s contract called for the construction of ditches and other work not embraced in the original plans and estimates for draining and protecting the lands of the district.

8th. That the relator’s contract called for the construction of ditches of a different character from those set out in the plans and specifications upon which the benefits were ascertained and assessed.

9th. That a majority of the voters of said dis>trict have refused to authorize the levy of a tax to pay the relator’s warrants.

10th. That relator’s warrants are void because the law does not .authorize a contract calling for payment in warrants.

11th. That relator’s said contract being void, the warrants which relator now seeks to collect are likewise void.

OPINION.

I. We are inclined to hold that the facts, in this case are not of sufficient public importance to warrant this court in assuming jurisdiction of the action. This is only one of innumerable cases where a litigant having' a complete right to go into the circuit court for relief, has sought to jump over the head of that tribunal, dodge the inconvenience of a trial by jury and obtain more speedy relief by an original action in this court at the expense of hundreds of other worthy litigants who have entrusted their rights to the trial courts, and who are before us by appeals or writs of error.

While the alternative writ should have been denied without prejudice when the same was applied for, or the action dismissed when the respondents filed their reply, we feel it would now be a great injustice to send the relator to the1 circuit court after the expense of appointing a commissioner, .the taking of testimony and the presentation .of the case to this court. We will therefore retain jurisdiction and dispose of the case.

II. The respondents’ contention that this court is powerless to grant the relief demanded because relator has not reduced his warrants to a judgment, must be overruled. In this action, respondents have had an opportunity to attack the validity of relator’s warrants by a thorough investigation of all the facts which led up to the issue of same; and all the issues tendered by respondents having received diligent consideration, they have now had their day in court, and the case must come to a close. [State ex rel. v. Holt County Court, 135 Mo. 533.]

HI. In support of their contention that the levee district could not legally incur indebtedness in excess of the $55,000 assessed by the commissioners as the probable benefits to be derived from the construction of levees and ditches, respondents cite us to more than one hundred decisions of State and Federal courts; but upon examination, we find that most of these cases relate to actions construing laws and contracts for the improvement of streets and sidewalks.

Ordinarily, when a street o,r sidewalk is to be improved, the statute regulating such improvement provides that an estimate shall be made of the costs thereof and the amount of such costs taxable against the property of each abutting landowner; and such statutes usually prohibit in express terms the letting of contracts for such improvements at prices in excess of their estimated cost. [Sees. 9254 and 9407, R. S. 1909.] Many of the cases cited by the learned counsel for respondents involve the construction of statutes similar to those last mentioned, and are a sound interpretation of that class of laws. But the statute now under consideration by us does1 not prohibit the levy of taxes in excess of the estimated benefits to be obtained by building levees and excavating drainage ditches. On the contrary, the very statute under which relator performed the work for which he now seeks payment, sections 8366 and 8369', Revised Statutes 1899 (Secs. 5799- and 5712, R. S. 1909), provides that additional levies may be made to complete improvements after the full benefits assessed, have been collected from the lands in the levee district.

Section 8369', Revised Statutes 1899', provides-that: “When the assessment heretofore made [meaning the annual levy of 25' per cent of the benefits during a period of four years] shall be inadequate to complete the work proposed [meaning the work estimated and designated as necessary by the topographical survey], or when assessments shall be necessary for maintenance and repair, each tract of land shall be assessed such proportion of the additional cost as its-original assessment bore to the total original assessment, and the said additional assessment shall be made by the board of supervisors in the same manner as the original assessment was made, and in all subsequent matters in relation thereto the same proceedings shall be had as hereinbefore required in regard to original assessments.”

If the law had provided that the plans for building levees and excavating ditches to drain overflowed' lands should be made and the cost thereof estimated before the levee district could be organized, the respondents’ contention would rest on a more reasonable basis; because it might be inferred that the landowners would not have organized the district had they known the exact amount it would1 cost. But such is not the case. The law provides that the owners of two-thirds in area of lands to be incorporated into a leveei district must first organize and sign articles of association, reciting that they “are willing and obligate themselves to pay the tax or taxes that may be assessed. to pay the expenses to make the improvements that may be necessary to effect the drainage of such lands so formed into' a district,” as provided by law. [Secs. 8361 and 8251, R. S. 1899; Secs. 5703 and 5493, R. S. 1909:]

It will thus be seen that the incorporators of a levee district voluntarily burden their lands situate therein • with whatever amount of taxes may be required to effectuate their drainage and protection from ■overflow; and such incorporators cannot be heard to say that their lands shall not be taxed in excess of a sum to be thereafter estimated by a person selected to make a topographical survey. [People ex rel. v. Knopf, 171 Ill. 191, l. c. 199.]

Persons having lands within the district, but who do not sign the articles of association, upon being summoned or notified, may resist the organization of the district, or the inclusion therein' of their lands. [Secs. 8253 and 8362,'R. S. 1899; Secs. 5-199' and 5704, E. S. 1909.] But if the court, upon a full hearing of the matter, finds that the organization of the district is necessary and in its opinion advantageous to the lands therein, and that the lands owned by the parties. objecting to the creation of such district should be embraced therein, then the lands included in such district, contrary to the wishes of the owners thereof, become' subject to the same regulations and burdens of taxation as lands which are annexed to a city or any other municipal body, against the wishes of their owners.

When, as in the case at bar, the person selected by the board of supervisors to make the survey, plans, estimates and specifications for draining and protecting lands of the levee district, miscalculates the amount of money required to build the levees and excavate the ditches, whereby it becomes necessary to raise by taxation a large additional sum to pay for such levees and ditches, the landowners are sorely disappointed because forced to expend more for the protection of their lands than they had been led by the surveyor’s report to anticipate; however,' they have no more cause to complain than a man who undertakes to build a house, supposing it will cost $1000' and finds to his grief that when completed it has cost him $1600. People who enter into the laudable undertaking of saving and protecting their lands from the ravages oí' "overflow waters, will always be subjected to more or . less disappointments because of unforeseen difficulties and expenditures which it is impossible to estimate with precision.

No one can look into the earth and determine with accuracy what it will cost to make an excavation therein; but such is not the case in making improvetments on the surface of streets and sidewalks in a town or city. Under the latter conditions, an engineer deals only with the seen and knowable; while in estimating' excavations for drainage ditches, he to some extent deals with matters he cannot see or fully understand. Hence, we do not consider cases governing the improvement of sidewalks and streets as throwing any light upon the statutes which we are now called upon to construe; and we must therefore rule that the expenditure by the levee districts of $30,000 more than was estimated to be necessary to drain and protect the lands therein, does not invalidate relator’s warrants, and the levy and collection of sufficient taxes to pay said warrants will not amount to the depriving of landowners of the levee district of their property without due process of law. [Mound City Land & Stock Company v. Miller, 170 Mo. 240; State ex rel. v. Bugg, 224 Mo. 537, l. c. 563; Sheridan v. Fleming, 93 Mo. 321; French v. Barber Asphalt Company, 181 U. S. 324; Hagar v. Reclamation District No. 108, 111 U. S. 701.]

The case of Sheridan v. Fleming, 93 Mo. l. c. 324, construed a drainage law quite similar to the one now in judgment. It required taxes to pay for drainage to be levied upon estimates to be prepared by commissioners; and in deciding that case, this court said: “There is nothing in the act which limits the amount to the estimate first made by the commissioners. The /aw does not contemplate that they must in the first instance, report the exact amount of the work. It would be impossible for them to do this, for they must pay for surveys, condemnation of property and the like, all of which expenses must be paid out of the fund. Neither these expenses, nor the cost of 'the work, can be ascertained with accuracy in advance. Besides, the contractor has nothing to do with the estimate ; and to say that he must go unpaid because of a mistake of the commissioners in a matter over which he has no control is manifestly unjust. The law contemplates- no such results.”

The case of Hagar v. District, supra, 111 U. S. 701, construed a, drainage statute of the State of California, which statute is in all respects much like the one now under consideration. In that case a drainage district of 74,000 acres was formed, and the commissioners appointed for that purpose assessed the benefits to be derived to the landowners from the drainage of their lands at $140,000'. After taxes had been levied and collected to the full amount of these benefits, it was found necessary to raise the further Sum of $192,000 to complete the drainage work undertaken by the district, whereupon the said further sum of $192,000 was by the commissioners assessed against the lands in the district; and. additional taxes levied to raise said last-named amount. Such additional taxes were upheld against the plea that their collection-would violate the Fourteenth Amendment to the Federal Constitution, which provides that, “No state shall deprive any person of . . . property without due-process- of law.”

IV. The complaint of respondents that landowners of the levee district were not notified of the assessment of benefits against their lands, does not deserve serious consideration. There is no statute requiring such notice to be given. The law directs that all landowners who do not sign the articles of association must'be notified of the intended incorporation of the district. In this case all the landowners who did not sign the articles of association were duly served with process, or notified by publication of the proceeding to incorporate; and being once called into court, they, as well as the parties who> signed the articles, were required to take notice of all subsequent proceedings leading up to the drainage of the district, including the assessment of benefits against their lands. This doctrine finds support in the case of State ex rel. v. Wilson, 216 Mo. l. c. 284 and 285. In the case at bar, the landowners 'of the district undoubtedly had full knowledge of the benefits assessed against their lands, because they had paid two years’ taxes based on said benefits before the levee district entered into the contract with relator to excavate its ditches; an'd as they paid taxes during two additional years thereafter without protest, and thereby acquiesced iu said assessment of benefits during a period of nearly five years, we think that they fully ratified the assessment of'benefits against their lands, and should not now be heard to complain that they were not notified thereof.

Y. The fact that special taxes have already been levied by the district and collected from the landowners equal to the amount of benefits assessed by the commissioners, is no bar to an additional levy to meet the unpaid warrants of relator. We have given some of our reasons for this view under paragraph 3. When the several sections of article 9, chapter 41, Revised Statutes 1909', are read together, the legislative intent to authorize the expenditure of money in excess of the benefits assessed by the commissioners is perfectly clear. The very nature of the subject calls for the conclusion that benefits to be derived by excavating ditches and constructing levees to protect and drain overflowed lands, like the cost of such improvements, can never be estimated with mathematical accuracy. The chief end to be ascertained in making the estimate and assessing benefits is to determine the proportionate gain which, each landowner in the district will receive from the building of levees and the excavation of ditches, in order to enable the commissioners to' equitably apportion the cost of such levees and ditches among such landowners, and also to provide a plan for extending taxes to pay for levees and ditches over a period of four years, instead of making the whole cost of such improvements payable in one year. ■

In State ex rel. v. Bugg, 224 Mo. 537, l. c. 557, this court held that notwithstanding the benefits assessed for improvement of a drainage district had been exhausted in digging ditches, a new district could be legally formed covering the same lands as the qld district, and additional taxes levied to deepen and enlarge, ditches which had proven insufficient.

By what is herein said, we do not wish to be understood as implying that, by the mere act of incorporating a levee district, such district would be bound to let contracts and levy taxes> in excess of what the lands of the district would be worth when drained and protected. It is easy to understand that all the landowners of the district might discover and become convinced after the district was organized, that they had undertaken the impossible, and that their lands could not be saved and protected by any kind of levees. In such a case, landowners would undoubtedly have a remedy; but that is not this case, and we express no opinion except upon the facts now before ns. However, by the very act of incorporating the district the landowners thereof say to the world that their lands are susceptible of being profitably drained ■ and protected; and it will be presumed, until the contrary is ■clearly shown, that such is the condition of said lands. After landowners have suffered' contracts to be let under the supervision of their duly authorized officers, the board of supervisors, they will not be heard to complain that the collection of such taxes as are needed to pay for the work performed under such contracts will amount to taking their property without due process of law. This is especially true where, as in this case, there is no proof of fraud or collusion between the contractor and the officers of the levee district, and the work of excavating ditches has been faithfully performed.

YI. 'There is nothing in the charge that relator’s contract called for the expenditure of money in excess of the benefits assessed, because the proof shows that when the contract was awarded to .relator there was still an unexpended balance in the benefit fund sufficient to pay for the work which relator contracted to perform, and there were then no uncompleted contracts for improvements outstanding.

YII. ' Respondents contend that relator’s contract is. invalid because it provides for the excavation of a half-mile of ditch from Rutherford’s Pond to Goose Pond, not called for in the original plans and specifications of the topographical survey, upon which benefits were assessed. This change of plans- and specifications was deemed by the board of supervisors* and their engineer to be absolutely necessary on account of the discovery, after the topographical survey had been made, that a “sand cut” was forming at the head of Goose Pond ditch, and that unless more water was brought through that ditch, it could not be kept open. This change seemsi to have been made by the board of supervisors and their engineer in good faith, and we cannot see any good reason why it should invalidate relator’s contract. Rivers which overflow their banks often produce results of the most unusual and unforeseen character. Many towns and small cities in our State which were by their founders thought to be entirely beyond the reach of and altogether immune from injury by adjacent rivers, have been undermined, destroyed, or rendered uninhabitable by the seemingly capricious action of such rivers. In some, eases, no amount of intelligence can foresee, and no amount of money, however judiciously expended, will thwart the devastating force of angry streams.

Courts take judicial notice of all these things and realize that those who embark in the trying task of curbing- the natural course of rivers have almost as difficult a job as those whose duty it is to extinguish fires; and hence, laws regulating levees and drains should be considered so as to allow a reasonable degree of discretion to persons whose duty it is to put them into action, so long as such persons act in good faith.

When a change of the plans prepared by the topographical surveyor is made after benefits have been assessed, we can readily understand why a reassessment of benefits, might become necessary, for the reason that such change might materially affect the benefits which some of the landowners would derive. In fact, a change of plans might in some cases work gross injury to some lands which according to the original plans would have been benefited. In such cases, the landowners whose property would be injuriously affected by a change of plans would undoubtedly have a right to compel a modification of or reassessment of benefits before any contracts were let or taxes collected for improvements.

However, no such facts enter into the case at bar. The evidence clearly proves that relator never saw or heard of the original plans prepared at the time the topographical survey was made until after he had entered into his contract to excavate the ditches for which he now seeks compensation; that no plans were shown to him by the engineer or supervisors except those prepared after the original plans had been changed. The letting of the contract under which these ditches were dug was fully advertised in a newspaper published in the levee district and otherwise, and landowners should have interposed their objections at the time of or before the contract was awarded to relator, and not after the extra half-mile of ditch of which they now complain, had been excavated.

VIII. The further insistence of respondents that relator’s warrants are void because the ditches excavated by him were of a different size and shape from those proposed in the original plans and specifications, stands on about the same foundation as their objections to the extra half-mile of ditch mentioned in paragraph 7. The original topographical survey called for ditches six feet wide at the bottom with a two-to-one slope of the walls; whereas the ditches contracted to and excavated by the relator were twelve feet wide at the bottom, with walls having a one-to-one slope. It is apparent that the original plans contemplated the excavation of these ditches with plows and scrapers, but Mr. Hazen, the same engineer who made the topographical survey, testifies that both he and the - board of supervisors became convinced that the ground was too wet to excavate with scrapers, and hence were forced to have the ditches dug by.a floating dredge boat. This made it impossible to give the walls of the ditches a two-to-one slope; consequently, they decided to make the bottoms of the ditches wider so as to accomodate the same flow of water as originally contemplated. There is no evidence that this change in the shape of the ditches has resulted in any material harm to the landowners for the reason that the relator is to be paid by the cubic yard of earth excavated, and the proof shows that the ditches as excavated cost only about three hundred dollars more than they would have cost had they been excavated wider at the top and narrower at the bottom — as originally planned.

The respondents have fallen into the error of supposing that laws relating to the drainage and protection of overflowed lands should receive the same narrow and restricted construction as general laws governing the assessment, and collection of the revenue. Such construction does not apply to drainage- laws. In the case of State ex rel. v. Bugg, 224 Mo. L c. 554, Judge Pox, in an opinion concurred in by all the members of this court, said: “Legislation upon the subject of drainage of wet and swamp lands located in different portions of this State, had in view a great public purpose, that is, of accomplishing results which would be conducive to the public health as well as to the convenience and welfare of the people of this State. Therefore, the provisions enacted by the lawmakers of this State for the purpose of accomplishing the results as indicated, should not. be confined, by a technical construction, within an extremely narrow compass. Such construction should be placed upon provisions of that character as will be in harmony with the intent of the lawmaking power, and which will facilitate the accomplishment of the purposes indicated by the legislative enactment upon the subject in hand.”

IX. That a majority of the voters residing in the levee district did not at the annual meeting authorize the imposition of a tax to pay relator’s warrants, we do not consider a sufficient reason to justify respondents in refusing to levy such tax. It is true that the letter of the law seems to require the vote of a majority of the taxpayers to authorize the supervisors to levy 25 per cent of benefits, after the full amount of benefits have once been, collected from the landowners of the district; but from what we have heretofore said, it is apparent that relator’s warrants are valid, and the statute having provided a method whereby the levee district procured relator’s labor and issued to him valid warrants therefor, respondents must order the necessary levies to pay same. We cannot imagine that any legislative body would intend to provide for the creation of a valid indebtedness and at the same time devise a scheme whereby the debtor could repudiate such obligation. As will be seen in our statement of the facts in this case there were enough unappropriated or unused benefits at the time the district employed relator to excavate its ditches to pay relator for the work contracted to him, and the levee district will not be permitted after receiving the fruits of relator’s labor to turn him away empty-handed with no better excuse than that they used the benefit fund with which he ought to have been paid in paying for work awarded to other parties.

In the case of State ex rel. v. Holt County Court, 135 Mo. l. c. 545, it was urged by respondents that some of the lands in the district had been sold to pay drainage taxes, that some landowners had paid their taxes in full while other owners had refused to pay a drainage tax and presumably had- defeated the collection of such taxes levied upon their lands, and that under such conditions it would be unjust to levy an additional tax upon all lands of the district to pay a warrant issued for drainage work. In overruling this defense, Robinson, J., speaking for this court, said: “Neither the relator nor his assignor had anything to do with' the matter of the estimate, the assessment, the levy or collection of the tax, and to hold that he is without a remedy and must go unpaid because of a miscalculation or mistake of the county court, or the dereliction and indifference of the collector, or the dodging of the taxpayer, is. a proposition that ought to contain its refutation in its utterance.”

It is the law of our State that when a municipality has contracted a valid debt its officers cannot be allowed to repudiate such obligation by refusing to levy the necessary taxes to pay same.

X. Respondents’ contention that relator’s warrants are void because the law does not contemplate that he should be paid in warrants for excavating ditches, is not tenable, because sections 8367 and 8368, Revised Statutes 1899 (Secs. 5543 and 5544, R. S'l 1909') expressly provide for the issue of warrants for the indebtedness legally incurred by the district.

XI. Relator’s contract with the district was valid, and it follows that his warrants issued for work performed under such contracts are likewise valid.

XII. The respondents having. refused to make any levy during the years 1909' and 1910 to meet relator’s warrants, relator now contends that this court, should order a levy of 55 per cent of the original benefits assessed, in order that a sufficient sum can be collected from the landowners during the year 1911 to pay the entire amount due relator. While the action of respondents in refusing to levy any tax to pay relatoras warrants, thereby forcing him, .-without fault on his part, to resort to the courts for relief, would afford a justification for the levy of 55 per cent of the benefits heretofore assessed, yet in view of the fact that such a levy might result in undue hardship upon some of the taxpayers who did not participate in the effort to repudiate the just debt of the district, we will only order a levy of 25 per cent of the benefits for 1911, with a like levy for the year 1912, and for the year 1913 a sufficient sum to pay such of relator’s warrants and the interest thereon as may not be met and redeemed by the levies ordered for 1911 and-1912.

That provision of the levee laws making warrants of the district receivable on levee taxes the same as county warrants are receivable for county taxes, sections 8367 and 8365., Revised Statutes 1899 (secs. 5710 •and 5711, R. S. 1909), is incapable of full enforcement. The law making county warrants receivable for county taxes (Sec. 3800', R. S. 1909) provides that county warrants can only be received for taxes of the year during which such warrants are drawn; and this works out satisfactorily, because county warrants cannot be legal-]y issued in excess of the county revenue fox each year. However, no such rule applies to the issue of warrants for building levees and excavating ditches. When once a levee or ditch is begun, it must, to become effective, be'completed with all convenient speed; and this will often result in the issue in one year of enough, or more than enough warrants, to consume the tax levies of four years. This gives parties who own lands in the district.an opportunity to collect their warrants promptly, by using such warrants in payment of their taxes; but leaves other warrant-holders who do not owe such taxes to wait an unreasonable time for their money.

Relator’s contract antedated the contract made with parties who constructed the Pox river levees, and his warrants should have been paid first; hut through the inequitable workings of the law, permitting, warrants to be received for levee taxes, the builders of the Fox river levee received their pay more than two years ago; while the relator has not yet been paid for his work.

When relator entered into his contract with the levee district, there were enough' unused benefits to. pay for the ditches which he excavated, and the board of supervisors promised him that he would not have to wait longer than a year for any of his pay. Under these conditions, whether or not relator could have enjoined the letting of contracts for the Fox river levee until his contract was completed and his work paid for, we need not decide; but certain it is that the law did hot devolve upon relator the duty of restraining the levee district through its officers from making additional contracts whereby a flood of warrants were issued and the tax levies of two years exhausted. Difficulties such as confront the relator and the levee district in this case are likely to continue to arise until the Legislature repeals or modifies that section of the law which makes levee taxes payable in warrants.

Having found ag'ainst the respondents on all the issues tendered by them to defeat the tax levies prayed for by the relator, it is considered, ordered and adjudged that the recommendations of our commissioner, the Hon. T. L. Montgomery, be approved, and that an absolute writ of mandamus issue from this court, requiring and commanding the respondents, or their successors as the board of supervisors of the Des Moines and Mississippi Levee District No. 1, to order tax levies upon all the lands in said levee district as follows: For the year 1911, 25 per cent of $55,000’; for the year 1912, 25 per cent of $55,000’, (said $55,000 being the original amount of benefits; assessed against said lands by commissioners appointed for that purpose), and for the year 1913, a sufficient sum to cover any balance which may be needed to redeem the remainder of relator’s warrants which may remain unpaid or unprovided for after the levies of 1911 and 1912 shall have been made and collected. Said board of supervisors shall certify to the clerk of the county court of Clark county the several tax levies which they, are herein required to order; and after said clerk of the county court shall extend and apportion said tax levies against the several tracts of land in the district according to the benefits as originally assessed by the commissioners, said taxes shall be collected and used solely for the purpose of paying and redeeming the warrants of relator, described in his petition filed herein. And it is further ordered that the costs of this proceeding- be taxed against the levee district.

Valliant, G. Jand Kennish, Woodson, Ferriss and Lamm, JJ., concur; Graves, J., dissents.

---

Rehearing

ON REHEARING.

PER CURIAM:

Upon motion for rehearing, the foregoing opinion and the judgment in this case are modified so as to require and command the respondents to levy only a tax of twenty per cent of the benefits assessed against the lands in the drainage district for and during each of the years 1911, 1912 and 19!3> which taxes when so levied and -collected shall be used solely to pay and redeem relator’s warrants, or so much thereof as may be necessary to pay and .extinguish all of said warrants and the interest which has accrued or may accrue thereon.

The motion for rehearing is overruled.