176 Mo. App. 470 | Mo. Ct. App. | 1913
Lead Opinion
This is a suit in equity and the question for decision arises alone on the face of' the bill. Defendant interposed a demurrer to plaintiff’s
“Plaintiff states that at all the-times hereinafter mentioned the defendant was and yet is a body corporate duly incorporated as a drainage district under and by virtue of article five of chapter one hundred and twenty-two of the Revised Statutes of Missouri,' 1899, and by virtue of the proceedings in the county court of Lincoln county, Missouri, in a certain cause therein pending entitled—‘In the Matter of King’s Lake Drainage and Levee District,’ and by virtue of the certain findings, orders and judgments of said court in said cause duly made and entered of record therein on the 25th day of May, 1895-, and on the 29th day of November, 1904.
“Plaintiff further states that the lands embraced and included within and affected by said drainage district lie partly in Lincoln county and partly in Pike county, both in the State of Missouri, and that the greater part of said lands lie in the said county of Lincoln.
‘ ‘ That heretofore, to-wit, on the--day of--, 1894, there was filed in the office of the clerk of the county court of said Lincoln .county a petition duly signed by the majority of the owners of all the lands in said above mentioned district and by the owners of more than half of said lands, all of said petitioners and owners being adults of lawful age, praying and applying for the organization - of a drainage district embracing said lands by the said name of ‘King’s Lake Drainage and Levee District,’ and with the boundaries thereof proposed, setting forth said proposed name and the necessity for said district and the organization thereof,' and for the construction therein and thereby of drains, ditches, levees and other works,
“That thereupon the clerk of said county court of Lincoln county duly docketed said matter and cause on the docket and record of his said court for further proceedings therein under and by the name and title, ‘In the matter of the King’s Lake Drainage and Levee District,’ and that all the proceedings in said court hereinafter referred to were had and done in said matter and cause and under the name and title aforesaid, and that he caused due notice of the presentation and filing of said petition to be given in all the modes and within the time provided by law to all the owners of said lands and all others interested therein; which said notices contained a statement that said petition had been filed in said court, the date when same was filed, the starting point, route, termini and general description of the said proposed work, the boundaries of said proposed drainage district and the said name thereof, and that the petitioners would ask a hearing of said petition at the July term of said county court then next to be holden at the courthouse in the city of Troy in said county.
“That thereafterwards such proceedings were duly had in said county court, that, on to-wit, the 17th
‘ ‘ That thereafterwards the said commissioners after having been duly qualified and having entered into bond according to law, duly conditioned, filed and approved, entered upon the duties of their said office and at their first meeting after their appointment and qualification duly appointed one of their number, viz., the said William H. Baskett, as secretary.
“That thereafterwards and -within the time as directed by said court the said commissioners went upon and duly examined the lands described in said petition proposed to he drained and protected and the lands over and upon which the said work was proposed to be constructed, and thereupon determined and reported to the said court by their written report duly made and filed therein on the 6th day of March, 1895, as follows: First, that the starting point, route
“That upon the filing of said report by said commissioners, the said county court, to-wit, on the 4th day of April, 1895', duly made and entered of record therein an order fixing the 16th day of May, 1895, as the time, and the courthouse in the city of Troy as the place, when and where all persons interested in said report or in the work referred to therein, might appear and contest the confirmation thereof. That thereupon the clerk of said court caused due notice of the said time and place of said hearing and of the amount of benefits and damages assessed and awarded by the said report of the said commissioners and containing a description of the lands affected, by publication thereof for three successive weeks prior to said day so set for such hearing in the ‘Lincoln County News,’ a newspaper published in said county, and also by duly serving a copy of such notice on each of the persons and corporations affected thereby who reside in either Lincoln or Pike county aforesaid, at least twenty days before the said day so fixed for said hearing.
“That thereupon such proceedings were duly had in and before said court that all objections, remonstrances and other questions and issues arising on said report and the assessment of benefits and award of damages made therein and all other matters jurisdictional and otherwise arising out of or concerning the proceedings in said court were duly heard, tried, considered and adjudged by and before said court; and the said court, to-wit,' on the 25th day of May, 1895, having duly found and adjudged that all the proceedings therein had been and were regular and valid, and
“That, upon the entering of record by said court of said order and judgment of confirmation of said report, said drainage district was by the further order and judgment of said court declared to be a body corporate by the name aforesaid. That thereupon immediately afterwards the said commissioners duly adopted a common seal for said corporate body and that said common seal has been and is the common seal of the defendant in this cause.
“Plaintiff further states that after the proceeding and judgment last aforesaid the said commissioners and their successors in office appointed and qualified in the manner provided by statute continued in their duties as such as the same were prescribed by law and by the orders of said court, and immediately proceeded with the building and construction of the said levees, drains, ditches and other work within said drainage district, at all times acting in that behalf for and as the duly constituted corporate authority thereof.
“ That, in the prosecution of the said work of construction, the said named commissioners, acting as aforesaid for and on the behalf of the said drainage district, on to-wit, the-day of--•, 1894, after due advertisement for sealed bids therefor by notice thereof duly published according to" law in a newspaper issued and published in said Lincoln county, duly let and awarded certain work of construction- of said
“That thereafterwards, to-wit, on the--day of --, 1895, the said A. Y. Wills & Sons duly assigned and delivered said contract and all their rights and interests therein and thereunder to Thomas C. Wilson for a valuable consideration paid them by him therefor.
“Thereafterwards the said Thomas C. Wilson entered upon the construction of said work, including said twelve miles of levee, under and in pursuance of the terms and provisions of said contract, and from time to time during the progress thereof estimates of the work of such construction upon the said twelve miles of levee done by him were duly made by said commissioners and their successors in accordance with law and the terms of said contract; and for the work of construction so done upon said levee by him, said Wilson, the commissioners from time to time drew and delivered to him the certain treasury warrants of said drainage district for the various sums corresponding in amounts with the value of said work done upon said levee and according to the prices therefor fixed by said contract. That.is to say, that said warrants were, in form, an order drawn in writing, addressed to the treasurer of the board of commissioners of the King’s Lake Drainage and Levee District, signed by one of the said commissioners as president and attested by the secretary under the corporate seal of said drainage district, ordering and directing the payment to said Wilson out of the treasury and funds of said district the certain sums mentioned in said warrants respectively. And plaintiff says that the
‘ ‘ Plaintiff further states that on the day set for the hearing of the said report of the said first named commissioners in and before said county court one W. ■ D. Jamison, the owner of certain lands within said district and affected by the proposed work, duly appeared in said court and objected to and remonstrated against said report, setting forth various causes for such objections and remonstrance duly verified by affidavit. Thereupon a time was by said court fixed for the hearing of said objection and at the time so fixed and upon due hearing and trial thereof said remon
“That upon the filing in said county court of the said mandate and directions of the Supreme Court, the said'county court proceeded in said matter and cause as by said mandate directed, and that such further proceedings were had therein that on, to-wit, the 13th day of November, 1903, the said petition for the establishment of said drainage district again came on to be heard and the said court then and there again duly found, declared and adjudged that the establishment of said drainage district in accordance with the prayer of said petition was necessary for the drainage and reclamation of the lands in said district for agricultural purposes, and thereupon, by its further order and judgment duly given and entered in said
“That thereafterwards said last named commissioners were duly qualified according to law and entered upon the discharge of their duties in that behalf and that they and their duly appointed and qualified successors in office have since been and are yet the duly appointed qualified and acting commissioners of the said King’s Lake Drainage and Levee District, defendant herein.
“That afterwards, to-wit, on the 9th day of August, 1904, the said last named commissioners, having fully performed their duties in the premises, duly filed in said court in said cause and proceeding their report setting out therein all the matters as required by law. Thereupon such further proceedings were duly had in said cause that on November 29, 1904,- said report of said commissioners came to be heard and for trial in and before said court, and the' same having been modified in accordance with the previous orders and directions of said court duly given and entered therein, was, by the finding, judgment and order of said court duly given and entered of record, in all-respects approved and confirmed and the said work established and authorized as set forth in said, report as modified and the assessments of benefits as made
“Plaintiff further states that in their said report, as the same was so aforesaid finally by said court approved and confirmed, the said commissioners found and reported that on the route of the levee as prayed for in said petition and as located hy them there was at the time an old levee extending the full distance of twelve miles which had theretofore been constructed and built by the former commissioners of said district and which said old levee the said commissioners further reported could, and would be, and had been, by themadopted, availed of and used as a part of the work committed to them to be done. And plaintiff says that said old levee so by said commissioners referred to, adopted, availed of and used., is the same levee built by said Wilson under and in pursuance of the said contract entered into with the commissioners of said levee district first appointed, all as is fully hereinbefore set out and declared.
“That upon the final confirmation of said report in and by said court as aforesaid, the said commissioners last appointed proceeded with the construction and thereafterwards completed .the levees, drains, ditches and other work proposed in said original petition and embraced and described in their said report, all as required by law and the various orders, judgments and directions of said county court duly made and entered in said cause and proceeding. That in the construction of said work said commissioners adopted, appropriated and used said old levee its entire length of twelve miles and made same a part of
“Plaintiff says that the cost of said twelve miles of levee to the first or original commissioners of said district and their successors so appointed as aforesaid was the sum of $18,690.92, and that same was and is reasonably worth that sum; and that for the building of same the said first named commissioners or their successors were unable to pay in full, but that said district was, at the time of the appointment of said last named or present commissioners and is'yet, still largely indebted to plaintiff for the work of building the same; said indebtedness being evidenced by the treasury warrants hereinbefore referred to and then and now owned and held by plaintiff, all as aforesaid, and which said warrants are next hereinafter set forth filed and described as follows, to-wit:
“Plaintiff states that on the 22d day of May, 1896, one of said warrants, numbered 51, on the treasury of said King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit A,’ was, by the due resolution and order of the then acting board of commissioners of said district, duly drawn and signed
“That on the 14th day of December, 1897, another of said warrants, numbered 92, on the treasury of said. King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit B,’ was, by the due resolution of the then acting board of commissioners, duly drawn and signed by Prank L. Wilson as president and by W. H. Baskett, secretary of said board, and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the said T. C. Wilson or order out of the said treasury and the funds thereof on presentation of said warrant the sum of two hundred and ninety-one dollars and ten cents ($291,100, to bear interest from said date at the rate of six per centum per annum until paid. That afterwards, to-wit, on the day of the date thereof, said warrant was duly presented to said treasurer for
“That on the 4th day of February, 1901 another of said warrants, number 189, on the treasury of said King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit C,’ was, by the due resolution and order of the then acting board of commissioners of said district, being the successors in office of said first named board appointed and qualified as by statute provided, duly drawn and signed by C. C. Eastin as president and T- E. Goodman, secretary of said board and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the plaintiff, Henry W. Perkins, or order, out of the said treasury and the funds thereof, on presentaton of said warrant, the sum of two' hundred and seventy-nine dollars and seventy-nine cents, ($279.79), to bear interest from said date at the rate of six per centum per annum until paid. That after-wards, on the day of the date thereof, said warrant was duly presented to said treasurer by plaintiff and payment thereof demanded, but that same was not paid. That said warrant was by said board of commissioners and said president and secretary thereof drawn and delivered to plántiff in lieu and- stead of a previous warrant, numbered 155, theretofore by said first mentioned board and officers issued, delivered and made payable to said T. C. Wilson, or order, and which had been by him, the said Wilson, duly transferred by
“That, on the 16th day of October, 1902, another of said warrants numbered 218, on the treasury of King’s Lake Drainage and Le\ree District, herewith filed and marked ‘Exhibit D,’ was, by the due resolution and order of said last mentioned board of commissioners, duly drawn and signed by C. C. Eastin as president and by T. R. Goodman, secretary of said board, and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the plaintiff, Henry W. Perkins, or order, out of the said treasury and the funds 'thereof, on presentation of said warrant the sum of six hundred and sixty-four dollars and fifty-seven cents ($664.57), to bear interest from said date at the rate of six per centum per annum until paid. That after-wards, to-wit, on the day of the date thereof, said warrant was duly presented to said treasurer by the plaintiff and payment thereof demanded, but. that same was not paid. That the said warrant was by said board of commissioners and said president and secretary thereof drawn and delivered to plaintiff in lieu and stead of a previous warrant, numbered 23, theretofore by said first mentioned board and officers issued, delivered and made payable to said T. C. Wilson, or order, and which had been by him, the said Wilson, duly transferred by endorsement and delivered to plaintiff for value; and which said previously drawn warrant numbered 23 was at the time held and owned
“Plaintiff further states that tbe said mentioned twelve miles of levee so constructed by said T. C. Wilson was contemplated and provided for in tbe original surveys, plats, profiles, plans and estimates made by tbe said first named commissioners and approved and confirmed by tbe said county court in its order duly made and entered in said proceedings on May 25, 1895, as aforesaid; and that at tbe time of entering into said contract for tbe construction of said work by said A. V. Wills & Sons, and at tbe time of the assignment of said contract to said T. C. Wilson, and at tbe time of tbe construction of all said work under said contract by said Wilson, including said twelve miles of said levee, and at tbe time of tbe drawing and tbe delivery to bim, said Wilson, of tbe said several original warrants upon tbe treasury of said district for and on account of said work of construction done, all as aforesaid, there remained unpaid on tbe assessments, of benefits made and confirmed by said court as aforesaid, against tbe lands within said district, an amount largely in excess of tbe sums for which said warrants were drawn.
“And plaintiff further states that the' said twelve miles of levee was also contemplated and provided for in tbe surveys, plats, profiles, plans and estimates so-made by tbe last appointed commissioners, and so confirmed by said county.court by its order of date November 29, 1904, as aforesaid, and that tbe amount of tbe assessments of benefits made by said commissioners, and on said date confirmed by tbe said court, was adequate and sufficient to pay tbe amount remaining
“Plaintiff says that the defendant King’s Lake Drainage and Levee District is a continuation of and is one and the same corporate body as the King’s Lake Drainage and Levee District under contract with and for which the said Thomas C. Wilson constructed the said twelve miles of said levee and which, by its said first mentioned board of commissioners in consideration thereof, executed to him the said warrants as hereinbefore set out. That by accepting, adopting, appropriating and using the said twelve miles of said levee so constructed as aforesaid, and making same a part of the work necessary to be done in protecting and reclaiming the lands within said district, the defendant is, and in equity and good conscience should be, adjudged to be held to have ratified and confirmed the acts of the said William J. Seaman, William IT. Baskett and Prank L. Wilson the first named board of commissioners and their successors in office as aforesaid in constructing same and in the incurring of said indebtedness to said Wilson therefor so evidenced by said warrants now held and owned by plaintiff as aforesaid. And that in equity and good conscience the defendant is and ought to be held and adjudged to be liable to the plaintiff for the amount of said warrants and the interest accrued thereon. And that the defendant and its present corporate authority are, and by reason of the premises ought to be held and adjudged to be, estopped and precluded from denying such liability. That plaintiff is without remedy, recourse or redress “on said warrants or for the value of said work for which samé were issued, or otherwise, in the premises, against said dis
“Wherefore, premises considered, plaintiff prays judgment against the defendant for the said sum of five thousand, six hundred and seventy-two dollars and fifty-six cents ($5672.56), the amount of said indebtedness so evidenced by said warrants with six per cent interest per annum on the respective sums mentioned in said warrants, respectively, from the said dates thereof respectively. And that plaintiff have such other, further and general or special relief in the premises as 'equity may require and as to the court shall seem meet.”
We find ourselves unable to agree with the presiding judge in the opinion prepared and tendered by him. A majority of the court are of the opinion that the bill states a cause of action..
There can be no doubt that the prior drainage district, with which Wilson contracted- and for whom he performed the services in constructing the twelve miles of levee, was a corporation de facto. The judgment of the county court erecting that corporation certainly did not reveal it to be void on its face. It finally failed as an entity because of the fact that Seaman’s wife owned land situated in the district, as wi]l appear by reference to the decision of the Supreme Court overturning it. [See King’s Lake Drainage Dist v. Jamison, 176 Mo. 557, 75 S. W. 679.]
It therefore sufficiently appears from the averments of the. bill that the defendant corporation was organized for the same purposes, to serve the same lands and the same inhabitants, under the same statutes, as the prior one. This being true, the franchises thus gathered together for utilization through the
Both the prior drainage district and the present defendant were municipal corporations under our law as is well settled by the Supreme Court decisions. [See Wilson v. Drainage Dist., 237 Mo. 39, 139 S. W. 136; see also Winkelman v. Levee Dist., 171 Mo. App. 49, 153 S. W. 539; Morrison v. Morey, 146 Mo. 543, 560, 561, 48 S. W. 629.] It is certainly the established rule of decision that municipal corporations do not extinguish their debts by merely changing their names or reorganizing under new charters, and especially is this true in those cases where a new corporation succeeds an old one to conserve the same purposes for the same inhabitants and pertaining to the same territory through utilizing franchises to the same end as its predecessor. [See Hill v. City of Kahoka, 35 Fed. 32.] Touching this question, Judge Dillon says, in his
On the same question the Supreme Court of the United States says, in' Broughton v. Pensacola, 93 U. S. 266, 270: “When, therefore, a new form is given to an old municipal corporation, or such a corporation is reorganized under a new charter, taking in its new organization the place of the old one, embracing substantially the same corporators and the same territory, it will be presumed that the Legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers administer its affairs ; and in the absence of express provision for their payment otherwise, it will also be presumed in such case that the Legislature intended that the liabilities as well as the rights of property of the corporation in its old form should accompany the corporation in its reorganization.” [See, also, Mobile v. Watson, 116 U. S. 289; Dillon, Municipal Corporations, supra; Amy & Co. v. Selma, 77 Ala. 103. For the general principle, see, also, Thompson v. Abbott, 61 Mo. 176; Hughes v. School Dist., 72 Mo. 643.]
The facts set forth in the bill sufficiently reveal that the present defendant is merely a continuation of the former corporation, as we understand the rule with respect to such matters. There can be no doubt that both corporations were erected under the statute
Moreover, though the prior drainage district were not a corporation either de jure or de facto, it would seem that defendant should pay for the benefits thus received, which inured to the lands and inhabitants its charter was issued to conserve. No one can doubt
“The provisions of this article shall be liberally construed to promote the drainage and reclamation of wet and overflowed lands within this State, the building of necessary embankments or levees, and the preservation of any system of drainage heretofore constructed under any law of this State. ’ ’ [Sec. 5573, B„ S. 1909.]
Furthermore, our Supreme Court has but recently declared that “Laws .relating to drainage and protection of overflow land should not receive the same narrow and restricted construction that courts give to laws governing the assessment and collection of the revenue.” [See State ex rel. McWilliams v. Bates, 235 Mo. 262, 138 S. W. 482.] When the charter powers of defendant are thus considered with a liberal view to effectuate the end designed, it appears to be clear enough that defendant acted within the power conferred upon it when it incorporated the twelve miles of levee, theretofore constructed under the- auspices of its predecessor, into the new levee constructed by it. Therefore, though it be true that the mere matters of detail pertaining to employing the old levee were not
From a careful reading of the bill, we find no facts averred therein to the effect that a portion of the account for services in constructing the levee other and distinct from that declared upon here, is outstanding in the hands of other parties. There is nothing in the bill that we have been able to discover which reveals a splitting of demands or that the plaintiff here sues.
Neither do we see anything in the bill to the effect that Wilson performed all of the labor in building the levee while the appeal in tbe case of King’s Lake Drainage Dist. v. Jamison, 176 Mo. 557, 75 S. W. 679, was pending in the Supreme Court and therefore precluded his right in equity. Indeed, it appears the warrants described in the bill were issued at different times from 1896 until the 16th day of October, 1902, but the case was not decided in the Supreme Court until July 2, 1903. It may be, for aught that appears in the bill, that the work was all performed before the appeal was perfected. But we regard this as wholly immaterial in any view of the case, for Wilson was not a party to the suit, but, on the contrary, was a third party under contract with the corporate entity, which appeared, on the face of the judgment of the county court creating it, to be a valid and subsisting corporation possessing full authority to employ him to construct the levee. Obviously the prior drainage district with which he contracted was a corporation de facto at the time and he was authorized to deal with it as such. [Hill v. Kahoka, 35 Fed. 32.] By continuing to execute the contract to which he had become obligated before the appeal was perfected, he forfeited no rights and certainly should not be condemned as without equity. Other points made are overruled.
The judgment should, therefore, be reversed and the cause remanded.
The presiding judge deems the conclusion here reached to be in' conflict with the decision of the Su
Dissenting Opinion
DISSENTING- OPINION.
This is a suit to enforce payment for work done upon a levee by one Wilson, as assignee of the original contractor, appellant’s claim evidenced by warrants issued for part of the work by a body purporting to be the board of commissioners of King’s Lake Drainage & Levee District of Pike and Lincoln counties. The warrants were issued in favor of Wilson and were afterwards assigned to one Perkins. After the institution of this suit, Perkins, the holder of the warrants, died and his administrator, having qualified, was duly, substituted as plaintiff. A demurrer was interposed to the petition, the demurrer sustained and plaintiff perfected his appeal to the Supreme Court, that court then having jurisdiction, the amount involved exceeding $5000. Pending the submission and determination of the case there, the limit of jurisdiction of the Supreme Court was changed so as to cover, where the amount alone conferred jurisdiction, those cases only in which the amount involved exceeded $7500. Holding that the amount here involved, including interest up to the time of the rendition of the judgment in the circuit court, did not exceed $7500", and that no question within its jurisdiction was involved, the Supreme Court transferred the cause to this court. To determine the question of the amount involved and also that of jurisdiction by reason of the character of the party defendant, a levee and drainage district, the Supreme Court found it necessary to examine and pass upon the peti
The cause was argued and submitted here October 12, 1912, and the judgment of the circuit court affirmed February 4,1913, all the members of our court concurring. A motion for rehearing was filed in due time, sustained, and the cause set down for reargument, the judgment of affirmance theretofore rendered being set aside. It was reargued and again taken under submission May 20th.
While counsel filed supplemental briefs, the assignments of error are as before.- These are to the action of the trial court in sustaining defendant’s demurrer to the amended petition and in overruling plaintiff’s motion in arrest of judgment and rendering judgment on the demurrer in favor of the defendant below, respondent here. The demurrer was general, attacking the petition as failing to state a cause of action, as also special, in that the petition showed upon its face that plaintiff’s right of action is barred by the five-year Statute of Limitations.
Learned counsel for appellant advance the proposition that the defendant corporation had a valid de facto existence at the time of incurring the obligation sued on and cannot now escape liability thereon. Those counsel cite many authorities to the effect that a de facto corporation is an association assuming to be, and acting as, a corporation, under color of authority so to do, but without legal right; that if there is a law authorizing a corporation, and a company has attempted to organize under it and has acted as a corporation, it is a de facto corporation and its de jure
Furthermore, this defendant is not the corpora-ton which incurred the obligation or issued the warrants. The averment in the petition, that this defendant has adopted the seal of the defunct organization, is, in itself, of no significance one way or the •other.
It is further argued that, passing the question of the actual identity of the defendant corporation, while acting under and through its lastly appointed commissioners, with the de facto corporate body executing the obligations in suit, acting through the commissioners first appointed, and treating them for the present as distinct and separate bodies, they would still remain a legal identity by succession, and, it is argued, the application of familiar principles of the law to such a situation would render defendant equally liable. Authorities and cases are cited to the effect that where one corporation goes entirely out of existence by being annexed to or merged in another corporation, if no arrangements are made respecting the property and liabilities of the corporation that has ceased to exist, the subsisting, succeeding corporation will be entitled to' all the property and be answerable for all the liabilities of its predecessor.
The'trouble with the application of this rule, invoked by counsel and accepted by my learned associates, to the case at bar, in the first place, is that the body which contracted for the construction of this
The next difficulty with the argument of counsel is this: The organization that issued these warrants, never having been a legally organized body of any kind, has and could have no successor. The order of the Supreme Court in the Jamison case—see page 579, 176 Mo.—to the county court was to take up and try the matter of the establishment of the district, “as if the original petition was presented to it for the first time, and to proceed with the cause without regard to anything that has heretofore been done in the cause, but in conformity herewith and with the statute.” That wiped out the corporation as well as the first board of commissioners as completely as if never'in existence; held, they never had any legal existence. It follows that the board and its corporation could have no corporate successor. The present corporation, defendant here, is an entirely new organization, succeeding no other corporation in rights or' interest, property or obligations. We are not even advised by the petition that the boundaries of the present district are colimitaneous with those of the former one which was • attempted. In point of fact, it is averred that when the county court, in November,
After holding that the present action is not on the warrants, Judge G-raves concludes in the Wilson case, supra (1. c. 45): “What rights plaintiff may have are such as have accrued since the organization of defendant.” That presents the real question here involved, namely, whether defendant has done any acts since its organization as a lawful corporation that make it liable to the plaintiff—rights which this plaintiff can enforce in- this proceeding; whether this defendant is estopped by the fact of user of the twelve miles of levee constructed by Wilson under his assign- or’s contract with the first board.
The estoppel, as pleaded, is: “That by accepting, adopting, appropriating and using the said twelve miles of said levee so constructed as aforesaid, and making same a part of the work necessary to be done in protecting and reclaiming the lands within said district, the defendant is, and in equity and good con
It is not very clear what is meant by the phrase in the prayer, “and its present corporate authority.” But so it is written. Possibly it means, “and its commissioners.” We will treat it as meaning that.
Proceedings for the organization of the drainage and levee district here involved were commenced, as before stated, by filing a petition having that object,' in the county court of Lincoln county, a short time prior to August, 1894. Consequently they are to be tested, in so far as concerns' the organization of the district and the powers and authority of its commissioners and the laying off of the district, by the provisions of the Act approved April 1, 1893 (Laws 1893, p. 188). This act became article 5, chapter 122, Revised Statutes 1899', and is now article 3, chapter 41, Revised Statutes 1909. In so far as the matter before us is concerned, the provisions of the Act of 1893 are carried into the revision of 1909, without change, and for convenience we shall refer to the sections of that revision.
The first section of the article is section 5547, which section authorizes the creation of drainage and levee districts in the manner in the article thereinafter
Section 5549 provides for notice of the application and what the notice shall contain.
Section 5550 provides that the county court in which the petition has been filed may hear the matters covered by the petition at any time and at either a general or special term of the court.
Section 5551 provides that on the hearing of the petition the parties through or upon whose lands any of the proposed work may be constructed, or whose lands may be damaged or benefited thereby, may appear and contest the necessity or utility of the pro
It was for the failure of the court to appoint “three competent” commissioners that all proceedings of the court in the matter following the filing of the petition were held, in the Jamison case, supra; to be invalid, or, as Judge Graves has said in the Wilson* case, supra, were “torn up, root and branch.”
The next section of,any moment here necessary to cite, is section 5555, which provides that as soon as may be after their appointment, or within such time as the court may direct, the commissioners' shall examine the land described in the petition proposed to be drained and protected, and the lands over or upon which the work is proposed to be constructed, and shall determine the starting point, probable cost of the proposed work, including all incidental expense, and the -cost of the proceeding therefor, the probable cost of keeping the same in repair after the work is completed, what lands will be injured thereby, the aggregate amount of such injuries; and award to each tract, etc., the amount of damages so determined by them, what lands will be benefited by the construction of the proposed work, whether the benefits will equal or ex-
Section 5556 provides: “If the commissioners shall find that such costs, expenses and damages are more than equal to the benefits that will he bestowed upon the lands to be benefited, they shall so report, and the proceedings shall be dismissed at the cost of the petitioners;” while in.the next section it is provided that if the commissioners report that the whole cost of the proposed work will be less than the benefits, etc., they shall proceed to have the proper surveys, profiles, plans and specifications made and shall report to the court their conclusions thereon, with a copy of the surveys, profiles, plans and specifications, and their recommendations as to the best and cheapest method of doing the proposed work.
Section 5558 provides that the commissioners shall not be confined to the point of commencement, route or termini of the drains or ditches,- or the number, extent or size of the same, or the location, plan or extent of any levee, ditch, or other work to that proposed by the petitioners, but shall' locate, design, lay out and plan the same in such manner as shall seem to them best designed to drain or protect the lands of the parties interested, with the least damage and greatest benefit to all lands to be affected thereby, the power being lodged in the county court, on the application of any person interested, at the hearing thereafter provided for, or on application of the commissioners, to alter -the proposed route by a written order in such manner as shall appear to the court to be just. If the commissioners find that the proposed district, as described in the petition filed, will not embrace all of the lands that will he benefited by the proposed work, or that it will include lands that will not be benefited and not necessary to be included in the district for anv purpose, they may extend or contract the bounda
It will be observed that so far these provisions relate to what may be called the preliminary steps in the matter. All are taken subject to final action to be had after the landowners have had their “day in court. ’ ’ When the necessity of the creation of the district and its boundaries and its cost have been ascertained and commissioners have been appointed and they have filed their report, section 5559 provides that upon the filing of that report, the court shall enter an order, fixing the time • and place when and where the parties interested may appear and contest the confirmation of the report, due notice to be given of this hearing.
Section 5560 which follows, is the one under which the landowners are first heard in court on the whole matter. That section provides that any owner of lands affected may appear on the day named and remonstrate against the whole or any part of the proposed work. The court shall thereupon fix a time and place for hearing the objections and may frame an issue of fact and impanel a jury and take the verdict of the jury upon the trial of such issue, “whether the amount of damages awarded by the commissioners is adequate, and whether the assessments of benefits as made by the report to any remonstrant commanding the review by a jury is too high, and the jury may then assess the same.” All other issues arising on remonstrance are to be tried by the court. • If the court finds from a hearing that the report requires modification, it
With this done, the organization of the district is completed. It will be noticed that in all of the
Sections 5561, 5562 and 5563 provide for the manner in which benefits are to be paid.
Section 5564 relates to the powers of the commissioners. As it is a vital one in the case at bar, we quote it verbatim.
“The commissioners, when qualified in pursuance of this article, may do any and all acts that may be necessary in and about the surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting and maintaining any drain, ditch, levee or other work for which they shall have been appointed, including all necessary bridges, crossings, embankments, protections, dams and lateral drains, clearing out and removing of obstructions from natural or artificial channels or streams within or beyond the limits of the drainage district, procuring, purchasing or condemning, under proceedings similar to the proceedings had on the award of damages hereunder, riparian rights, rights of flowage and water powers, and may use any moneys in their hands arising from assessments for that purpose.”
Following sections provide how the contract is to he let:
Section 5566 provides for making additional assessments. We will refer to it hereafter.
Section 5567 gives the commissioners power to borrow money. It is not material to the question before us.
The Acts of 1909 added three new sections, but having been enacted after the beginning of these proceedings, they do not affect them nor are they material to any of the matters here involved. We mav add that by Act approved April 12, 1911 (Laws 1911, p. 225), the General Assembly repealed sections 5548, 5560, 5565, 5567 and 5572, and enacted new sections in lieu thereof, and also added two new sections. The
In a way, barring what is said by our Supreme Court in the Jamison and Wilson cases, supra, the precise question as to the power of the commissioners, is one of first impression in our courts. But we are not without judicial light to guide us in determining the powers of these commissioners under this article of our law. This law of ours, enacted in 1893, is practically a copy of the law of the State of Illinois relating to the" same matter; .that is, the construction of drains and levees, the creation of levee districts and the powers of the commissioners. The Illinois law was adopted in 1879. [See Session Acts Illinois 1878-79, p. 120.] Gn the well-known rule that when one State adopts the laws of another, and that law, prior to adoption in the adopting State has been construed by the courts of the State of its origin, the interpretation placed upon it by the highest court of the State of its origin is almost without exception recognized and accepted in determining the meaning and construction to be placed upon the law by the courts of the adopting State.
The case in which the Supreme Court of Illinois construed its law of 1878, is that of Badger et al. v. Inlet Drainage District, 141 Ill. 540. There the particular part of the law under consideration was that
“Although we have held that a drainage district is to be classed as a municipal corporation . . . yet we have also held that such a district is organized merely for a special and limited purpose; that its powers are restricted to such as the Legislature has deemed essential for the accomplishment of such purpose, and that it is only authorized to raise funds for the specific object for which it is formed, and that it can do that in no other mode than by special assessments upon the property benefited, which can in no case exceed the benefits to the lands assessed. [Elmore v. Drainage Commissioners, 135 Ill. 277.] So, also, we have held, where the statute prescribed a mode and purpose-of municipal taxation, it must he pursued. No other mode-or purpose can be substituted by those who exercise the power. [Webster v. The People, 98 Ill. 343.]” Mr. Justice Scholeield then quotes various sections of the act under which appellee was organized which, .on comparison, will appear to be practically identical with our own law. -
Continuing, Mr. Justice Scholeield takes up the consideration of section 28 of the Illinois law, which section provides: “Upon, the organization of said drainage district the commissioners so- appointed, shall from thenceforth, have power to contract and be contracted with, sue and be sued, plead and be impleaded, and to do and perform, in the corporate name of said district, all such acts and things as may be necessari^ for the accomplishmeiat of the purposes of this act.” This provision is to all intents and purposes a part of section 5560 of our statute which we have before summarized.
After quoting it as above, Mr. Justice Scholeield says: ‘ ‘ But this is to be construed in connection with the preceding sections, so as to give effect to each, and when this is done, it will he seen that it not a mod
The preceding sections of the Illinois law are similar to sections of our own law which we have noted from section 5547 to section 5561.
Continuing, Mr. Justice Scholfiedd says: “It is also provided in section 36,'that ‘the commissioners, when qualified in pursuance of this act, may do any and all acts that may be necessary in and about the surveying, laying out, constructing, repairing, altering, enlarging, cleaning, protecting and maintaining any drain, ditch, levee or other work for which they shall have been appointed, including all necessary bridges, crossings, embankments, protections, dams and side drains, clearing out and removing of obstructions from natural or artificial’ channels or streams, within or beyond the limits of the drainage district,, procuring or purchasing riparian rights and water powers by agreement with the owners thereof, and may-use any money in their hands arising from assessments for that purpose.’ ”
Comparison of this section so far quoted with our section 5564 shows that the two sections are practically identical in language, 'completely identical in effect. Commenting upon the quoted clause of this, section, Mr. Justice Scholfield says (1. c. 547):
“But since all this may be done under the general power to contract, it cannot be held as an enlargement of the powers granted by section 28 (our section 5560), and must therefore be held to be an'additional limitation or restriction on those powers, and the meaning would therefore have been precisely the same, and more obvious, if the phraseology had been that the commissioners ‘may use any money in their hands arising from assessments,’ for these purposes, repeating them after instead of before this language. It is still further manifest that this section is but an áddi
As before noted, section 36 corresponds to our section 5564. ' This provision of section 39 of the Illinois act is practically covered by section 5556 of our law, which provides that if the expenses and damages are more than equal to the benefits to be bestowed upon the lands to be benefited, the commissioners shall so report and the proceedings shall thereupon be dismissed at the cost of the commissioners, and by our section 5568, which provides that the damages allowed shall be first paid or tendered to the owner before the commissioners shall be authorized to enter upon the land for the construction of any work proposed thereon. This inhibition is repeated practically in section 5569.
Continuing, Mr. Justice Schodkield says (1. c. 548): “It results that, in our opinion, when this drainage district was first organized there was no power in the commissioners to contract for the removal of the dam, etc., of the appellants, and that before the commissioners could make any contract in that respect they must present to the court appointing them a report recommending the enlargement of the
Concluding his opinion, Mr. Justice Scholeieid (1. c. 5491) says: “There was evidence showing that the commissioners had availed of the removal of the dam, etc., and it is contended this estops them to deny the validity of the contract for its removal, and East St. Louis v. East St. Louis Gaslight and Coke Co., 98 Ill. 415, is relied on in support of that contention. It was held in that case, that where the contract of a municipal corporation has no element of illegality, the objection made to it only alleging a defect of power in respect to the terms of its duration, the doctrine that where a corporation has received benefits under a contract which is merely ultra vires it shall pay for those benefits, should apply to the municipal corporation with equal force as in any case of a private corporation. But in such cases there is poiver to do the particular thing, only it is not authorised to he done in the way it is done. (The italics are ours.) The doing of the thing in a proper way is a legitimate charge upon the revenues of the municipality, and so • when it is done, and is accepted and enjoyed by the municipality, the municipality gets what it had authority to get in a different way, and it should therefore pay for it what it would have had to pay had it got it in the right way. In the present case, however, if we are right in the views we have expressed, there was no power in the commissioners to do the particular thing—namely, remove the dam, abutments, etc.— for the reason that the powers of the commissioners are limited to the %oork described in their report and accompanying plans and profiles, etc., and that work is not within the description therein. (Italics ours.)
As before- observed, we have not overlooked the fact that that was an action at law and that this is a suit in equity, but in so far as 'concerns the powers of the commissioners, and the scope of the corporate powers, we think that this decision in the -Badger case is applicable to our own law.
We think that our law carries evidence on its face that the Ueneral Assembly, in enacting it, has been exceedingly careful to expressly place limitations upon the powers of the commissioners, and for that mat ter upon those of the corporation itself and to leave nothing to implication. While the section expressly
As before observed, we have had in this State no distinct construction of this particular article of our statute to which we can refer as an authoritative exposition of it so far as relates to the powers of these commissioners. But we have many decisions in line with the Badger case. The question of the powers of commissioners under article 9, chapter 41, Revised Statutes 1909, was before our Supreme Court in State ex rel. McWilliams v. Bates, 235 Mo. 262, 138 S. W. 482, but the issue there in decision is not involved here, and while counsel for appellant cite and seem to rely upon it as helping them out, we cannot so construe it. It turned on the power of the commissioners to make extra assessments, a point not here involved and under provisions not identical with those in article 3 of the same chapter.
These commissioners, respondents here, whose acts in taking up the old levee are claimed to amount to an estoppel against the district, had no authority
It is true it is pleaded that the commissioners in-some form or manner allowed those who had paid fo.r the construction of this old work a credit on their assessments. The demurrer admits that that was done, but if it was, there is- nothing whatever in the law by which the commissioners in doing it were acting within any of the powers conferred upon them by the statute. So far as pleaded this was an illegal act. Surely no estoppel arises against the district on an illegal act of the commissioners. All the power over old levees, levees previously constructed, which could be vested in the commissioners, even by order of the court, was to provide for repairing and keeping an old levee in repair. The statute gives no power to buy it—to pay for its construction. .We are not here passing on this action of the commissioners, in allowing for assessments paid in the construction of the old levee, any further than to say that it presents no ground of estoppel, as pleaded, against the commissioners of the district in this present case.
In the view I take of the construction to be placed upon our la-w, supported in that view by the decision of the Supreme Court of Illinois in the Badger case, supra, and in line with the decisions of our own courts on cognate matters, I hold that there was no authority whatever in the commissioners of this district to
There is nothing pleaded in the petition which amounts to an estoppel npon the part of the landowners themselves, nothing whatever to show that they had their day in court to pass upon the question as to whether they would use and repair or keep up the old levee, much less, would pay for it, and until that occurred there is no estoppel at law or in equity against them by the mere fact of their commissioners nsing this before-constructed piece of levee.
We held in Watts v. Levee District No. 1, Mississippi County, 164 Mo. App. 263, 145 S. W. 129', that the fact that the new levee had been built along the line of the old one and that the old one had been used in the construction of the new, did not, in itself, make the district liable for warrants illegally issued in the construction of the old levee. There we called attention to the location of the old levee and asked (1. e. 286): “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 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 held in that case that they were not, unless there were other acts amounting to an estoppel, and we found none.
Absent the option of acceptance of rejection, there is no estoppel by leaving and using the old levee. [16 Cye., p. 787, par. b; 31 Cyc., p. 1270.] At the latter place it is said: “The rule of ratification by the acceptance of benefits also implies the -power of election to accept or reject what has been received, and does not apply where the benefit has been received
It is true that this- extract from 31 Cye., is under the law treating’ of the relation of principal and agent; so are the cases cited in support of it. But that does not detract from its application here. This defendant, a corporation, could act only through the commissioners, who are its agents. The acts of estoppel urged are the acts of the agents, and the principal is no more estopped in equity than in law, unless the estoppel arises on an act of the agent, done within the scope of his authority. This district, its members, the landowners themselves did no act of acceptance. Whatever was done is 'charged to have been done by the commissioners.
It has been settled by a long line of decisions in our State that this peculiar class of corporations, that is to say public, municipal, corporations, can only make such contracts so authorized and in the manner authorized by law. While officers, directors, members of private corporations, stockholders of private corporations, may waive irregularities by subsequent assent and so be subject to a plea of estoppel and in many cases debarred from a plea of ultra vires, such acts are not available as against the public, particularly taxpayers whose lands or property are proposed to be taken or bound by the acts of their repre
In Johnson v. School District, 67 Mo. 319, it was held that the fact that the articles which had been by a majority of the directors purchased without compliance with the law, were not chargeable against the school district, and that although they were purchased for the use of the district and had been used in its school, the fact of this acceptance and user did not amount to a ratification of the purchase or impose upon the district any obligation of payment. This case has been often cited and always with approval, as see State v. Lawrence, 178 Mo. 350, 77 S. W. 497.
. In Maupin v. Franklin County, 67 Mo. 327, it was held that contracts with a county court could not be established by parol evidence and that where a verbal contract had been made by that court with an individual and the court had paid out part of the money under it and the work had been completed and accepted and used by the county, there was no estoppel against the county, and it was not liable for the payment of the debt so incurred.
In Heidelberg v. St. Francois County, 100 Mo. 69, 12 S. W, 914, a contract for the erection of a bridge was let contrary to provisions of the law. The work was done, the bridge accepted. At the time section 1218, Revised Statutes 1879 (now section 3728, Revised Statutes 1909), was in force, which provides that, “If a claim against a county be for'work and labor done, or material furnished in good faith by the claimant, under contract with the county authorities, or
In line with the case of East St. Louis v. East St. Louis Gaslight & Coke Co., 98 Ill. 415, cited by the Supreme Court of Illinois in the Badger case, supra, is the decision of our Supreme Court in State ex rel. v. Milling Co., 156 Mo. 620, 57 S. W. 1008, There it. is held (1. c. 634) that a municipal corporation may ratify an act done in its name, which was within its corporate powers, but which was not done in the manner prescribed by law. Quoting from Tiedeman on Municipal Corporations, sec. 170, and referring 'to that and cases cited, it is said that a municipal corporation is not bound by a contract made by its agent or officer which the agent or officer had no authority to make, “but if the contract is for a corporate purpose, and within the powers conferred upon the municipality by its charter, or by the general law, it may be ratified by the corporation and become binding upon
In Phillips v. Butler County, 187 Mo. 698, 86 S. W. 231, the rule announced in Heidelberg v. St. Francois County, supra, that a county court cannot, even by order of record, ratify the void acts of one of its officers and that it must logically follow that if it could not, even by entry of record, ratify the void order of one of its officers, it could not ratify one of its void acts, is reiterated, the court saying in the Phillips case that there is no difference in principle between the ratification of its own void acts and the void acts of one of its officers. Says the court (l. c. 713): “The reason is that a void act is incapable of ratification.” Eeferring to Wolcott v. Lawrence County, 26 Mo. 272, and Heidelberg v. St. Francois County, supra, it is further held in the Phillips case (l. c. 714), that the fact that plaintiff rendered services by and with the knowledge and consent of the county court of the county, did not amount to a ratification hy the court of his supposed contract of employment nor does the doctrine of estoppel apply to counties.
In Seaman v. Levee District, 219 Mo. 1, 117 S. W. 1084, where the drainage commissioners had employed one of their number as an engineer and the person so appointed attempted to recover páy for his services, the court held that the employment, in the face of the prohibition of the statute against any commissioner being directly or indirectly interested in any contract for the construction of any ditch or drain, made the contract illegal and void, and that notwithstanding the fact that the commissioners had accepted the work done by this engineering member and had used it. in the course of their work as commissioners, the person so employed could not recover from the district the value of the work done by him as engineer, nor is the district inhibited from invoking the invalidity of the contract for that the work was fully per
Learned counsel for appellant place great stress upon this last cited decision. In my view that decision, instead of supporting, makes against plaintiff, appellant- here. Those counsel urge that it was the express prohibition that rendered the employment void. That is true. But it is also true, as shown by the cases cited above, that when there is absence of authority in the public body to do the act at all, the act done is void and can confer no obligation on the public.
In Union National Bank of Kansas City v. Lyons, 220 Mo. 538, 119 S. W. 540, also relied upon by counsel for appellant, it is said that the suit was not bottomed on the note, and that the plaintiff’s success in the case did not depend upon the validity of that instrument. “It is sufficient,” says the court (1. c. 556), “that appellant (defendant) had the power to borrow the money and that it did in fact borrow it. . . . If the bank obtained the money and by mistake or without authority of law executed therefor an invalid note, then it was its duty under this general obligation
Nor am I impressed with any equities existing in favor of plaintiff, his intestate, or of intestate’s assignor, the contractor. The work which was done by Wilson, contractor, was done at the instigation and on the employment and under contract with a body purporting to represent the people of a certain district and that body, our Supreme Court has held, both
It is true that it does not specifically appear by the petition when the work of this levee was done by the contractor. It does appear, however, by the averments of the petition, that the contract was let to-the original contractor on the 21st of October, 1895. The warrants which were issued in part payment for part of the work were issued as the work progressed ' and under -the law could odIv be issued for such part of it or such portion of it as had been completed. The first of the warrants, No. 51, bears date May 22, 1896. Another, numbered 92, bears date December 14, 1897. The other two (there were four warrants in all involved in this suit) are dated respectively February 4,1901, and October 16,. 1902. It is stated in the latter, however, that it is issued in part for a warrant numbered 23, issued to Wilson, and as these warrants are-evidently part of a series, the warrant for which this one was issued must have been of date prior to May 22, 1896, which is the date of warrant No. 51, and the warrant of February 4, 1901, purports to be issued in part for warrant No. 155, which had been taken up. There are no data upon which we can fix the date-of this warrant No. 155, but the warrant issued in-part for it, No. 189, is dated February 4,' 1901, so that, of course, No. 155 was issued prior to February 4,. 1901.
It was after this that the contract was awarded for the construction of the levee to the firm of A. V. Willis & Sons, who afterwards assigned it to Wilson. It further appears by the petition in this case that on the day set for the hearing of the report of the commissioners, that is to say, May 16, 1895, one Jamison, the owner of certain lands within the district, appeared in the county court and objected and remonstrated against the report. His objections and remonstrances were overruled. He appealed from that to the circuit court in May, 1895', and from the circuit court to the Supreme Court and there the case which we have before referred to, entitled King’s Lake Drainage & Levee District v. Jamison, was not determined until July 2, 1903, on .which last named date the Supreme Court affirmed the judgment of the circuit court overturning that of the county court and remanded the cause to the county court of Lincoln county, “to be by it taken up and tried as if the original petition was presented to it for the first time, and to proceed with the cause without regard to anything tha’!' has heretofore been done in the cause, but in conformity herewith and with the statute.”
This is the judgment by which, as said by Judge Graves in the Wilson case, supra (1. c. 45), “The old proceeding was torn up, root and branch .... and such opinion becomes the law of this case whether right or wrong.” So that it appears beyond room for cavil, and, indeed, it was practically admitted by counsel before us in the argument of the case, that all of the work which Wilson, the contractor, did in con
We say that Wilson, the contractor, did the work with knowledge and at his peril, for he, in common with all people is assumed to know the law and to assume that when the Supreme Court decided the Jamison case that it was making no new law but simply stating the law as it is and as it always had been. As said in Barnard & Co. v. Knox County, 105 Mo. 382, l. c. 390, 16 S. W. 917, “It is the duty of persons dealing with counties and county officials, as well as of county officials themselves, to take notice of the limit prescribed by the Constitution. . . . Soliciting agents, contractors and others who deal with county officials must see to it that the limit of county indebtedness is not exceeded, and, if they fail to do this, they must suffer the consequences.”
But appellant says he is not here basing his claim upon the warrants, but really for work and labor done, and seeking, by invoking equity, to impose the value of that work on the district. If we are to treat this as an action to recover for work and labor, it must be for work and labor done under a lawful contract, express or implied, and for all the work and labor done under the one contract, not for a part; not for only so much of it as is represented by these warrants assigned to or issued to plaintiff’s intestate; provided there has been an assignment of part of the claim, the assignment lawfully assented to by the debtor. It may be gathered from the petition that these are not the only outstanding warrants given for the old work still outstanding and unpaid; that they do not cover all the claim for that work. It was distinctly admitted in the case at bar that other warrants of like kind are outstanding and in suit, that suit awaiting the determination of this. Plaintiff is therefore confronted with the settled rule that one cannot split his cause of action; cannot assign part of a debt due so as to make his debtor responsible to several parties, without the assent of his debtor. No such assent is here pretended.
This is not the case presented in City of Louisiana
It is suggested that the rule against the splitting of a cause of action applies only to actions at law, and not to suits in equity. We are referred to no case which makes any such distinction. Nor do we see any reason for applying a different rule.
In the ultimate analysis, and to reiterate, to enable plaintiff here to recover, he must have a valid claim. An estoppel never rests on an unlawful, void demand. If we were proceeding according to the old common law form of practice, where actions at law were, carefully separated from suits in equity, the plaintiff here would first be compelled, in an action at law, to establish his demand as a valid legal obligation, that is, reduce his claim to judgment, and then, applying to a court of equity, enforce that against the property of the defendant; enforce against him his established demand. We have cut short all such tortuous proceedings and allow the same purpose to be accomplished in one action, but in doing that we have not abandoned the rule that it is essential to a recovery that it must be for the whole demand, cover all
One of the grounds of demurrer specially invoked is tbe five-year Statute of Limitations in bar of the action. That may be done by special demurrer. [Burras v. Cook, 215 Mo. 496, l. c. 503, 114 S. W. 1065.] But in the view I take of the case, I do not consider it necessary to pass upon that ground. My associates have not noticed it.
With every disposition to compel those who are enjojdng the fruits of another man’s industry, or who have received money from him, to compel compensation or payment, I cannot, under the facts of this case, as set out in the petition, bring myself to the conclusion sustaining this present action, without, as I think, violating fundamental principles that lie at the very foundation of correct administration of the law and application of the principles of equity, and going contrary to settled rules governing- the creation of obligations against the public. Our people are engaged in no more meritorious or important work than that involved in the rescue of their lands from devastation by overflow, and to make waste places tillable. To do so involves vast expenditure—often grave sacrifice to the landowners. The burden for the accomplishment of this, when cast upon -them, must be by their consent and through their officers legally authorized so to do. That has not been done here and the landowners of this district should not be subjected to taxation to meet this claim. So we held when this case was first argued and submitted. On careful reconsideration of the case and with the arguments of the learned and industrious
Tbe judgment of tbe circuit court accordingly should be affirmed.
With a few verbal alterations and the elimination of some rather long- quotations which I thought necessary to make if my opinion was to be accepted as that of the court, the foregoing is the statement of facts and conclusions thereon which I prepared in the case. As stated above when the case was formerly argued and submitted, we all agreed to affirm the judgment of the circuit court in sustaining the demurrer. Rehearing granted, counsel submitted additional briefs in support of their position, and while I saw no reason to change my views, I thought it proper, out of respect to counsel, to discuss the points involved more fully. As my learned associates, however, on further consideration, have arrived at a different conclusion, in which I cannot concur, I file my opinion as prepared on reargument, with these added observations, made necessary by the position taken by my brethren.
It seems to be intimated in the opinion of the majority members of the court that I have gone outside of the averments of the petition by statement of facts and conclusions and arguments based thereon. If that is meant, I do not think that it finds support in anything that I have said. I have confined myself strictly to the petition to which the demurrer was interposed, not however touching on that part of the demurrer which invoked the Statute of Limitations. Possibly my opinion is open to the criticism that I have gone to the decisions of our court in the Jamison and Wilson cases for some dates, but that, I understand, is always open to the court to do. The Supreme Court, in this very Wilson case, has said (1. c. 45), that the opinion in the Jamison case “becomes the law of this case, whether right o.r wrong,” and I have used the
My learned associate, Judge Nortoni, places great stress upon the opinion of Judge Thayer in Hill v. City of Kahoka, 35 Fed. 32, as well as on several decisions of the Supreme Court of the United States and on the great authority of Judge Dillon in his work on Municipal Corporations. I do not think that these decisions apply in our State to the extent claimed, nor that they are in line with the decisions of our own courts on kindred matters. It is a well-known fact that the decisions of the Supreme Court of the United States and of the subordinate Federal tribunals have gone to a much greater length in enforcing obligations of municipalities than have the courts of our State, as witness the litigation growing out of the Cass county bonds and out of what are known as the M. & M. River Railroad bonds, with which decisions doubtless all are familiar. Judge Dillon, thoroughly in line and sympathy with these decisions, has written in that spirit. In effect, these decisions hold that however lacking in authority the officers may have been who issued the obligation of a community, where the community has had the benefit of these unauthorized acts and, in other cases, as in the M. & M. River Railroad bonds, even where the community received no benefit whatever from them, the people are liable either on the bonds, or fox the work done or money received. For illustration of the difference in decision between our
My learned Brother Nortoni lays some stress upon section 5573, which is to the effect that the pro
This ease will present a very curious situation, if, under the law as announced by the majority of our court, the plaintiff recovers. Before the commissioners can pay for a levee, funds will be required to meet the payment. The commissioners can only assess damages under approval of the county court, made after the landowners of the district have been heard. We order a judgment and direct an assessment for its payment. By what right? Have we any higher right or more power than the county court or the commissioners? We are an appellate court, with no original jurisdiction in this matter. Our jurisdiction is as surety derivative as is that of a circuit court on ap
It seems to me that all that there is in this case as a question of estoppel, that is the real point in decision and as I understand the decisions of our own ■State courts, the law and doctrine of estoppel has no application as against the public when estoppel is attempted to be invoked on the basis of illegal acts of public officers or on the acts of those who were not de jure officers authorized to contract for the public. Entertaining a very strong opinion to that effect, justified in it as I think by the decisions which I have cited from our own Supreme Court from the Johnson ■case down to the Seaman case, I think that the conclusion arrived at by my brethren is contrary to those ■decisions and I most respectively ask that on that ground this cause be certified to the Supreme Court for its determination.
