164 Mo. App. 263 | Mo. Ct. App. | 1912
(after stating the facts). — The facts connected with the issue of these warrants are so fully set forth in the opinion by Judge Valliant in State ex rel. Stotts v. Wall, supra, that it is unnecessary to go into them.
Before considering whether these warrants are void, let us see if there are here present such acts of ratification or acquiescence by the corporation as raise an estoppel, conceding for the argument, but not conceding it as a fact, that the proceedings under- which the warrants, of which the ones in suit are a part, were issued, were merely invalid and not void. “An estoppel is a legal consequence — a right — arising from acts or conduct; while acquiescence and ratification are but facts presupposing a situation incomplete in its legal aspect, i. e., not as yet attended with full legal consequences.” [Bigelow on Estoppel (5 Ed.), p. 457.] Let us consider whether there has been an express ratification.
Apart from that, however, the proposition submitted, which was adopted by the resolution of a decided majority of the landowners there present and voting, contains intrinsic evidence of the fact that there was no ratification whatever of the action of part of the landowners of the district at the meeting held in November, 1893, in authorizing a tax to pay for the old levee. The proposition itself, as submitted, was for the construction of a levee “from the New Madrid county line in the Mississippi river northward along the north bank of Big Lake to the Still House; and it is further ordered and determined that the levee heretofore built shall be strengthened, . . . and that it is necessary to construct a levee and strengthen and repair the old levee as above set forth.” The proposition submitted to the landowners in the form of a resolution was “that in order to defray the expenses of surveys, estimates of levees to be built and cost thereof, and to pay the officers, agents, servants and employees of said levee district, we do hereby order the assessment of a tax,” etc. In the notice to the landowners, after describing the line of the levee as taking in the whole east and north sides of the county, they were notified to appear at the meeting of July, 1900, to show cause if any they had why the land should not be assessed with their proportionate part of the cost of said work and an estimate of the probable cost of the work and of the amount of assessment “as will be necessary to pay for said work,” would be made known to the landowners present, “and a vote
It would be hard to use words that more clearly indicated that the proposed tax was to pay “for work thereafter to be doné;” to “thereafter construct a levee;” to. “repair the old levee.” No one reading the resolution as adopted could by any possibility have supposed that authorization for payment of work theretofore done was contemplated. In the estimate submitted, when the old levee is referred to, the language used is, that the estimate submitted and the ratification which is asked of the landowners, embraces the cost, not of the building of the original seventeen miles, but “that a levee shall be built around and along the river front of said levee district from the New Madrid county line in the Mississippi river northward along the north bank of Big Lake to the Still House; and it is further ordered and determined that the levee heretofore built shall be strengthened, that such levee and such repairs are necessary to protect the district from inundation and overflow from rivers; . . . that it is necessary to'construct a levee and strengthen and repair the old levee as above set forth.” Counsel for appellant themselves say in their reply brief: “Bear in mind that seventeen miles of this same levee which
But it is said that an estoppel has arisen by. the act of the directors in using the old levee or in repair • ing it, and that the district is estopped by that from refusing payment of these warrants.
There is testimony to the effect that this part of the levee constructed under the vote of 1893 is in. use and has been repaired. For that matter, it may be noted that there is testimony that parts of a levee constructed in 1854 and afterwards are also in use. That the seventeen miles built under the orders of 1893 were there, is certain. What were the people of the district to do with it? Were they to tear it down and start over? Were they to refuse to repair it as needed? In short, unless these public officers of the district, or the public, the landowners who constituted the district, were to abandon this levee entirely, were they to pay for its construction? We do not consider
It is contended hy the learned counsel for appellant in this case, that that decision is neither between the same parties nor does it declare these warrants void, and that the remarks of .Judge Valliant, who delivered the opinion, that all the acts of the meeting of November 28, 1893, were “without authority and invalid,” are mere dicta. It is true that that case was not between these same parties and that it arose, not on the payment of the warrants but on the validity of an assessment of taxes to raise funds with which to pay the warrants. But we do not consider these words of Judge Valliant mere dicta, and the opinion does declare the law for us and is conclusively binding upon us in determining that the meeting of a portion of the landowners in the district, held in 1893, was not such a meeting as provided for by law; that all its proceedings were invalid, and that the assessment levied to pay warrants, issued for that work, was invalid. It is difficult to escape the conclusion that invalid as here used means void, although it is true that the two words are not always synonymous. But it is clear that by this decision, as is said by our Supreme Court -in Wilson v. King’s Lake Drainage & Levee District, supra, when referring to the decision of the court in King’s Lake Drainage & Levee District v. Jamison, 176 Mo. 557, 75 S. W. 679, that the proceedings before had in the creation of the district and levy of the tax were “torn up root and branch. . . . With that opinion the contracts made and the warrants issued by the old board fell to the ground.” Our Supreme Court, in the Stotts-Wall case, certainly has announced that in cdhsequence of the invalidity of the proceedings of the meeting of 1893, no tax levy can be made or enforced in payment of "these warrants. The validity of these warrants de
Furthermore, and as a reason why this action on these warrants cannot be maintained, it is to be remembered that there is no pretense that there is any fund at hand or at the disposition of defendant, arising from that previous tax levy. The only funds now available are the funds arising from the tax assessment and levy authorized by the meeting of July, 1900. Clearly, therefore, unless we are to overturn the decision of the Supreme Court in the Wall case, we cannot require these warrants to be paid out of any part of the tax levy authorized by the meeting of July 21, 1900, and to be used in payment of work
Whether the levee district is liable to pay for that part of the levee which was built under the authorization of 1893, by reason of acceptance of all of it, is not before us. This, unlike the Wilson case, is an action on these invalid warrants. Whether an action can be successfully- maintained for the work and labor done in the construction of this seventeen miles of levee (see Louisiana v. Wood, 102 U. S. 294), is not now before us. It is beyond question that these warrants, drawn in payment against the tax authorized by the district in July, 1900, cannot be paid out of the tax levee authorized under the action then taken and the resolution then adopted. None of that fund can be diverted to the payment of work before then done, nor can payment of these warrants, as warrants, be enforced against this district.
We think the learned trial court committed no error in refusing the .declaration of law asked for plaintiff and that its conclusion upon the facts in the casé, under the evidence in the case, is not only sustained by the evidence in the case but is a correct conclusion of the law under that evidence. The judgment of the circuit court is affirmed.