Opinion
September 4, 1933.
1. DISTRICT SEWER ACT: Repealing Act: Constitutionality. The Act of 1931, repealing the Sewer District Act of 1927, is constitutional though it authorizes the board of supervisors, appointed under the act repealed, to continue in existence for the purpose of making tax levies to discharge obligations incurred by the district.
2. DISTRICT SEWER ACT: Repealing Act. The Act of 1931, repealing the Sewer District Act of 1927, did not leave the board of supervisors of an original district without power to complete a tax levy to discharge the obligations of the district, because it provided that the repeal as to each district should be the same as if the circuit court under Section 11062, Revised Statutes 1929, had found that the estimated cost of improvements exceeded the estimated benefits, and gave the board authority to make additional levies to pay lawful claims and wind up the affairs of the district.
3. DISTRICT SEWER ACT: Taxation: Levy. The board of supervisors of a sewer district organized under the Act of 1927, were in duty bound to make a complete and uniform levy of taxes to discharge lawful claims against the district and, after the repeal of the act, cannot be compelled by mandamus to certify such levy where it had failed to make it uniform.
4. TRIALS: Parties. A judgment in mandamus compelling the board of supervisors of a sewer district to complete a tax levy for the purpose of paying warrants would not bind taxpayers of the district who are not partes to the proceeding.
PEREMPTORY WRIT DENIED.
Ralph, Nolan, Rush Brown for relator.
(1) A holder of warrants issued by a sewer district in payment of preliminary expenses incurred by the district is clearly entitled to mandamus to compel the proper officers of the district to proceed with the assessment, levy, certification and collection of sufficient taxes to pay such warrants. Secs. 11037-11062, R.S. 1929; State ex rel. v. Webster Groves General Sewer District, 37 S.W.2d 905. (2) By express provision of the statute, the duty to levy and collect taxes sufficient to pay outstanding and unpaid warrants remained after repeal, and regardless of whether sewers were actually constructed. Sec. 11062, R.S. 1929; Acts 1931, p. 355; State ex rel. v. Wellston Sewer District, 332 Mo. 547; Houck v. Drainage District, 248 Mo. 373, 154 S.W. 739, 239 U.S. 254; Hunter v. City of Pittsburg, 207 U.S. 161. (3) Assessments for taxes to pay expenses lawfully incurred by sewer districts are not such "taxes" as fall within the purview of Section 3, Article X of our State Constitution. State ex rel. v. Oliver, 273 Mo. 537, 201 S.W. 868; Houck v. Drainage District, supra; Drainage District v. Turney, 235 Mo. 80, 138 S.W. 12. (4) Provisions of Article II, Section 20 of our State Constitution relating to "taking of private property" do not apply to Sewer Law provisions for assessments. St. Louis v. Nicolai, 13 S.W.2d 39; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935. (5) The provisions of the repeal act, 1931, are not in conflict with Section 30, Article II of the Constitution of the State of Missouri or of Section 1 of the Fourteenth Amendment to the Constitution of the United States. Sate ex rel. Becker v. Wellston Sewer District, supra.
S.D. Flanagan for respondents.
(1) Relator's petition does not state any facts showing that the warrants held by him were issued for lawfully incurred costs, obligations or liabilities of respondent sewer district. The Act of the 1931 General Assembly of the State of Missouri, repealing the law under which respondent district was incorporated, found on page 355 of the Laws of Missouri, 1931, limits the authority of respondents to the performance of such acts as are necessary for the purpose of paying outstanding lawfully incurred costs, obligations and liabilities of respondent sewer district. Since the relator has not shown that the warrants described in his petition were issued for lawfully incurred obligations of respondent sewer district, a peremptory writ of mandamus should be denied as such writ will only issue where the relator shows a clear legal right thereto. State ex rel. Buder v. Hackmann, 305 Mo. 342, 265 S.W. 532; State ex rel. Gehner v. Thompson, 316 Mo. 1169, 293 S.W. 391; State ex rel. Brunjes v. Linville, 8 S.W.2d 623; State ex rel. McWilliams v. Armstrong, 320 Mo. 1122, 9 S.W.2d 600. (2) Respondents' return alleges and relator, by his motion for judgment on the pleadings, admits that respondents have not yet determined the amount of the levy necessary to raise a sum equal to the amount of expenses incurred by and on behalf of respondent district. This is so because there are numerous suits pending in which taxpayers are attacking the validity of warrants issued by other sewer districts to relator for similar services and under similar circumstances to those here. Until the aggregate of the valid warrants outstanding is determined and adjudicated, respondents cannot know how much, if anything, is due relator. If all the outstanding warrants are valid, then relator is only entitled to his pro rata share of the total tax realized by the uniform levy of ten cents per square of 100 square feet, and such pro rata share cannot be fixed until the validity of the outstanding warrants has been determined. It is obvious that the rights of taxpayers who are not parties to this suit will be affected if the writ of mandamus is issued. This court has held that a writ of mandamus will not issue when it is apparent that the rights of persons not parties to the suit will be affected by the court's judgment. State ex rel. Davis v. State Highway Comm., 312 Mo. 230, 279 S.W. 689; State ex rel. Hopper v. Cottengin, 172 Mo. 129; State ex rel. Attorney-General v. Railroad Co., 77 Mo. 143; State ex rel. Hughett v. Finley, 74 Mo. App. 213; State ex rel. Hindrichs v. Adair County Court, 177 Mo. App. 12.
Charles Claflin Allen, Jr., and Williams, Nelson English, amici curiae.
(1) Unless amended by omitting the requirement to pay the proceeds of the tax to relator or unless amended to require the payment of the tax to all warrant holders, the relief asked is broader than relator's right because: (a) The writ does not command a new levy for the benefit of relator alone, but commands the completion of an old levy for the benefit of all warrant holders. (b) It appears from the record that relator is entitled to be paid only a portion of the levy. (c) Other warrant holders are entitled to rights under the old levy. R.S. 1929, secs. 11037, 11062; Laws 1931, p. 355; State ex rel. Waters Pierce Oil Co. v. Baggott, 96 Mo. 71. (2) If the writ be amended to require payment on all warrants, including relator's it should be made peremptory because: (a) The resolution ordering the levy against all lands in the district was passed before September 14, 1931, when the repealing act became effective (Laws 1931, p. 390). (b) The amount to be levied having been determined, it is the duty of the district to complete the same when demanded by the warrant holders. State ex rel. Boatmen's Natl. Bank v. Webster Groves General Sewer Dist., 37 S.W.2d 905.
Relator seeks, in this proceeding, to compel the respondents, Board of Supervisors of Jennings Sewer District of St. Louis County. Missouri, and the secretary and treasurer thereof, to complete a certain tax levy and to apply the proceeds to the payment of warrants in a sum of $10,250, held by relator with interest thereon.
Respondent, sewer district, was organized under the provisions of Chapter 65, Revised Statutes 1929. The law was enacted by the Legislature in the year 1927, and repealed by the Legislature in the year 1931. While its life was of short duration it has had a stormy career. It has been the source of many legal combats.
Relator's petition states that after the organization of the district the board of supervisors employed attorneys and appointed a chief engineer for the district and caused surveys to be made, thereby incurring expenses and debts in organizing the district; that the warrants of relator were executed and delivered for a part of the expenses so incurred. Relator then alleges that the respondent board assessed and levied a uniform tax of ten cents per square of one hundred square feet upon all lands within the district for the purpose of providing funds to pay the expense of the preliminary work. It is charged that all necessary steps have been taken by the officers for the purpose of making a valid levy and assessment except that they have failed and now refuse to certify to the Recorder of Deeds and the Collector of Revenue of St. Louis County the proceedings of the board making the assessment for the purpose of collecting the tax. Relator asks that respondents be compelled to take these necessary steps to the end that funds may be collected for the payment of the warrants held by him and also that the officers be compelled to pay to relator the full amount and interest called for by the warrants.
Relator also alleges that respondent, board of supervisors, has issued warrants for preliminary expenses incurred in a sum in excess of $82,300; that the uniform tax of ten cents per square of one hundred square feet, if all were collected, would amount to only $82.300; that the Circuit Court of St. Louis County has not determined whether or not the estimated cost of the works and improvements of building the sewers of the district would exceed or be less than the benefits assessed against the land of the district; also, that the circuit court has not confirmed any report of commissioners appointed to determine and assess benefits and damages as provided in Section 11042 of the act.
The return of respondents admits many of the material allegations of the petition. In the return respondents, however, assert that in making the levy and assessment as alleged in the petition, the board excluded from the assessment private streets, roads and parks which consisted of 2,531,933 square feet and, therefore, the levy made was not a uniform levy as required by law. Respondents also assert that the repealing statute of the Legislature has left them without power to act, also that the repealing act is unconstitutional because it authorizes the levy of a tax for a private purpose.
To this return relator filed a motion for judgment upon the pleadings. The truth of any facts set forth in the return are, therefore, admitted.
The questions of law raised by respondents' return, as to the constitutionality of the act, have all been definitely settled by this court and we will not consider them again except to refer to the cases wherein the question were decided. The court en banc held the act constitutional. [State ex rel. v. Curtis, 4 S.W.2d 467, 319 Mo. 316.] Section 7 of the act, later Section 11037, Revised Statutes 1929, which is the section giving the board of supervisors the power to levy a uniform tax for the preliminary work, was expressly mentioned in the opinion as being constitutional. [See page 473 (15) of the opinion.] In the case of State ex rel. v. Webster Groves Sewer District, 327 Mo. 594, 37 S.W.2d 905, a mandamus proceeding, the court en banc issued its writ of mandamus compelling the board of supervisors to levy a tax for the payment of expenses incurred by the district incident to the work necessary to organize the district, making surveys, assessing benefits and damages, etc., as provided in Section 11037, Revised Statutes 1929. It was there held that it was the mandatory duty of the board of supervisors to levy a tax for the purpose of obtaining funds to discharge the debts thus incurred. [See State ex rel. v. Webster Groves Sewer District, 327 Mo. 594, 37 S.W.2d l.c. 910 (14, 15).] In the two cases referred to the court en banc disposed of all the constitutional questions affecting the Act of 1927, raised by the return in this case, and on the authority of those cases the points are ruled against respondents.
Respondents also challenge the validity of the repealing statute and assert that it is unconstitutional because it authorizes the board to continue in existence for the purpose of making tax levies to discharge the legal obligations of the district. The repealing act was held constitutional by the court en banc in State ex rel. v. Wellston Sewer District, 332 Mo. 547, 58 S.W.2d 988. This act does not confer any new powers upon the board but continues its existence until such time as its affairs may be settled. The contention of respondents that the repealing act is unconstitutional because it authorizes a levy of a tax for a purely private purpose, was fully answered adverse to respondents in State ex rel. v. Curtis and State ex rel. v. Wellston Sewer District, supra; Egyptian Levee Co. v. Cummins, 27 Mo. 495, 72 Am. Dec. 276; Houck v. Little River Drainage District, 154 S.W. 739, 248 Mo. 373, 239 U.S. 254.
The contention that the repealing statute left the board without any power to act is without merit. The repealing act expressly provides that it shall have the same effect "as if the circuit court had, under the provisions of Section 11062, Revised Statutes of Missouri, 1929, found that the estimated costs of the works and improvements exceed the estimated benefits." The effect is that the incorporation of the district shall be dissolved as soon as all costs incurred shall have been paid. Section 11062 is explicit in its terms. It is mandatory upon the board to take the necessary steps to wind up the affairs of the district and to discharge all lawful debts existing against it. Under the plain terms of the statute and the decisions above cited the respondents are bound to make and complete a uniform tax levy so that the lawful claims existing against the district may be discharged. The return of respondents does not contain any legal excuse why they should not do so. The respondents, however, state in their return that the levy made, the completion of which the relator seeks to compel by this proceeding, was not a uniform tax levy as required by Section 11037 of the act; that a substantial amount of area was omitted from the assessment. Under the pleadings we must take this allegation of the return as true. Relator has not denied the allegations of the return.
Under the terms of the statute the tax levy must be uniform upon all lauds within the district. Respondents are in duty bound to make and complete such a levy. It would be futile, however, to compel respondents to certify the levy made because, according to the return, it is not uniform. This being true it is unnecessary to consider other questions raised.
By permission of the court two amici curiae briefs were filed in this case. One by attorneys representing other warrant holders and another by attorneys representing taxpayers of the district. In the brief filed on behalf of other warrant holders it is urged that relator is not entitled to have his warrants paid in full to the exclusion of warrants held by other persons; that the levy of ten cents is not sufficient to pay all outstanding warrants and, therefore, the petition and writ should be so amended that all warrant holders will share equally and unless amended the peremptory writ of mandamus should be denied.
Attorneys representing certain taxpayers of the district contend that the relief prayed for should be denied because the taxpayers are vitally interested in the outcome of this litigation and are not parties to the suit; that the warrants described in relator's petition were issued in pursuance of an ultra vires contract and the legality thereof should be first determined before a mandamus be issued to compel the payment thereof. In their brief we read:
"It is apparent that the proceeding was instituted for the express purpose of enforcing a tax against taxpayers without giving the taxpayer his right to a day in court or any opportunity to defend in his own behalf.
"We suggest that the procedure of the respondent Sewer District, and other sewer districts organized and existing in St. Louis County, under the same law, have been so notorious, so oppressive and of such common knowledge, through the press and channels of litigation, that this court ought not grant its writ of mandamus. in this case without having all the facts before it, and without giving the oppressed an opportunity to appear in court, plead and defend to the end that justice may prevail."
This apprehension is without foundation. Irrespective of the outcome of this suit it would not bar a proceeding to cancel the warrants if illegally issued. The taxpayers are vitally interested. They must pay the bills. Since they are not parties to the suit any judgment entered would not affect their rights in the subject matter of the litigation. The validity of the warrants can be litigated in some proceeding commenced in the circuit court. From what we have said it is evident that the peremptory writ must be denied and, therefore, it is not necessary to consider the questions briefed by the other warrant holders.
The writ is denied on the ground that the levy made is not uniform. Respondents should not find it difficult to ascertain their duty under the law. They have as a guide the cases of this court en banc above cited. These cases and the provisions of the statute ought to be sufficient to point the way for an early settlement of the affairs of the district. The board of supervisors ought to levy a uniform tax upon all of the lands of the district in order that funds may be obtained for the payment of all lawful claims existing against the district. This ought to be done at an early date so that the law, which the Legislature has repealed and which has caused much litigation, may be put at rest.
The peremptory writ is denied. Cooley and Fitzsimmons, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.