*1 900 majority otbérwise ruled. But of states in which the passed upon courts have this issue of the decisions been in Rogers ruling in
accord with our case. For the reasons stated judgment W Cooley estimes, CC., is affirmed. concur. foregoing opinion by Fitzsimmons, G., PER CURIAM: The judges adopted opinion as the of the court. All the concur. at the Relation and to the Use of William State of Missouri Jennings Stoecker, Relator, v. Sewer District of St. Louis County (2d) S. W. 133. al. 63 et Two, September Division Ralph, Nolan, & Rush Brown for relator. *2 Flanagan respondents.
8. B. *3 English, Allen, Jr., Williams, & amici Charles and Nelson Claflin
curiae. seeks, WESTHUES, compel C. Relator the to Jennings Supervisors Board of of Sewer District of County, Missouri, thereof, St. and the secretary Louis and treasurer apply proceeds complete pay- a certain and to the $10,250, in a sum of held with ment of warrants relator interest thereon. district, organized of
Respondent, was provisions sewer under the 1929. Chapter Revised Statutes The law enacted year 1927, Legislature repealed by and year stormy a While its life was of short duration it has had many legal has the source career. It of combats. petition organization
Relator’s states that after the of attorneys chief supervisors employed appointed board and thereby engineer surveys made, district and caused to be organizing district; incurring expenses and that debts part for a relator were executed and delivered warrants of alleges expenses respondent Relator then board so incurred. that per square assessed and levied uniform tax of ten cents of one square pur- within for the feet all lands the district hundred preliminary work. pose providing pay expense funds charged necessary steps have been taken the officers that making except assessment that purpose for the a valid certify of Deeds failed and now refuse the Recorder County proceedings Louis Collector of Revenue of St. and the collecting making the assessment for compelled respondents be to take these neces- tax. Relator asks that may be sary steps funds collected for to the end that compelled by him and that officers be of the warrants held also by the called for pay the full amount interest to relator warrants. supervisors, is- alleges respondent, board of
Relator also expenses preliminary a sum in excess sued warrants for square $82,300; per hun- uniform tax of ten cents one $82,- collected, only feet, if all would amount to square dred County St-. has not determined 300; Court of Louis that the Circuit *4 improvements the of works and not the estimated cost whether or than would exceed or lie less building the sewers of the district of district; also, the against that the land of the assessed the benefits any appointed report of commissioners .has confirmed not circuit court damages provided in Section as benefits and and assess to determine act. 11042 of the many allegations admits of the material respondents The of return however, assert that In the petition. return the of assessment, alleged petition, board making levy as streets, which parks roads and private assessment from the excluded levy and, therefore, made was square feet 2,531,933 of consisted Respondents also required by law. assert levy as a uniform
not power left them without of the repealing statute au- act because it repealing is unconstitutional act, also to private purpose. a levy of a tax for thorizes upon plead- for judgment motion filed a return relator this To 904
ings. are, therefore, any The truth of facts set forth in the return admitted. by questions respondents’ return,
The of law raised as to the act, definitely constitutionality by of the have settled again except court and will not consider refer we them to the cases questions decided. court banc wherein The en the act held Curtis, rel. 4 S. (2d) 467, constitutional. ex v. W. 319 Mo. [State act, 11037, 7 Section of the later Section Revised Statutes 316.] giving- which 1929, supervisors power is the section board levy preliminary ivork, expressly a uniform tax for the was men being (15) in the opinion page tioned as 473 constitutional. [See the opinion.] In the case of State v. ex rel. Webster Groves Sewer District, 594, (2d) 327 37 S. W. 905, Mo. mandamus en its compelling court banc issued unit of mandamus supervisors levy expenses a tax for the organize district, incident to the work making surveys, assessing damages, etc., benefits and provided as 11037, Section Revised Statutes was held there it that was mandatory supervisors of the board a tax for the debts, purpose obtaining discharge funds to thus incurred. Sewer, District, State ex rel. v. Webster Groves 594, 327 Mo. [See (2d) (14, 37 910 15).] S. W. l. c. In the two cases referred to the disposed court banc of all the affecting en constitutional 1927, case, the Act of raised the return in this and on the au thority points cases the respondents. those ruled challenge validitjr
Respondents also repealing of the statute and assert that it is unconstitutional it because authorizes the board to making continue existence for the tax levies to dis- charge legal obligations repealing district. The act was banc held constitutional the court en in State ex rel. v. Wellston 547, 58 (2d) 332 S. W. District, Sewer Mo. 988. This act does not any powers confer new the board but continues its existence - until as such time its affairs be settled. The contention re- spondents repealing act is unconstitutional because it au- purely private of a tax for a purpose, thorizes fully respondents answered adverse State rel. v. ex Curtis and State District, supra; v. Sewer Egyptian ex rel. Wellston Levee Co. v. 495, 276; 27 72 Dec. Cummins, Mo. Am. v. Houck Little River District, 739, 154 248 Drainage S. W. Mo. U. S. 254. repealing The contention that statute left the board with power without merit. The repealing out to act is expressly act shall provides that it same effect “as if the circuit court *5 had, provisions of under the Section Revised Statutes Mis souri, 1929, found the estimated costs improve works and estimated benefits.” ments exceed the The effect is that incorpora be dissolved as soon tion shall as all of the district costs paid. shall have been explicit Section 11062 is in its It terms. is mandatory upon up steps to take the to wind discharge affairs of district existing and to all' lawful debts against it. plain Under the terms of the and the decisions statute respondents above cited complete a uni- are bound to make and levy existing against form tax so that the lawful claims discharged. be respondents The return does not contain any legal why excuse how- should not do so. The ever, levy made, state in completion their return that compel which the not a relator this seeks levy act; tax required by uniform that a as Section 11037 of the from, substantial amount of assessment. Under area was omitted pleadings true. allegation we this return as must take allegations Relator has not denied the of the return. levy be uni
Under the terms of the the tax must statute Respondents form all lands are within the district. futile, levy. how complete
bound to make and such would be certify because, ever, respondents accord compel made return, being unnecessary ing to the it is it is not uniform. This true to consider other raised. permission were filed
By curiae briefs the court two amici by attorneys warrant holders case. representing One other In attorneys taxpayers of the district. representing and another urged that it is brief behalf warrant- holders filed on of other ex to the paid is full relator not entitled to have1his warrants cents of ten persons; that the clusion of warrants held other therefore, and, pay outstanding is warrants not sufficient to will warrant holders petition that all and writ should be so amended mandamus writ of equally peremptory amended share and unless should be denied.
Attorneys taxpayers district contend of the representing certain taxpayers because the prayed should be denied the relief .that litigation are not vitally and in the outcome of this interested petition suit; in relator’s warrants described parties to the legality pursuance an vires contract and issued in ultra issued to a mandamus be before should be first determined thereof compel read: Tn brief we thereof. their express for the. proceeding was instituted apparent "It that this enforcing giving the taxpayers without to defend opportunity right day in or to a court taxpayer his hi,s own behalf. Dis- Sewer respondent suggest procedure "We existing Louis in St. organized and trict, sewer districts other notorious, oppressive so so County, the same under channels knowledge, through press such common and of mandamus writ of ought grant its not that this court litigation, *6 giving it, and without having facts before without all the in this ease court, plead and defend opportunity appear an oppressed justice may prevail.” end Irrespective of apprehension without foundation. This is cancel proceeding this suit it would not bar the outcome of vitally interested. illegally taxpayers The if warrants issued. suit parties to the They pay the are not must bills. Since subject judgment rights in affect matter entered would not their litigated in validity can be litigation. of the warrants The what we proceeding in the circuit court. From some commenced and, peremptory is evident writ must be denied have said it therefore, is not to consider the briefed it the other warrant holders. ground
The denied on made is not uniform. writ is Respondents should not find it difficult to ascertain their under They guide the law. have as the cases this court en banc above provisions ought cited. cases of the statute to be These and the way early an point sufficient settlement of the affairs ought supervisors The a uniform the district. board of district in funds be upon all the lands of the order that ob- existing claims tained for lawful ought early at an date district. This be done so that which repealed which has caused much liti- gation, may put at be reát. peremptory Cooley Fitzsimmons, CC., denied.
The writ concur.
PER C., foregoing opinion Westhues, CURIAM: The is a- court. All dopted opinion judges as the concur.