Opinion
August 20, 1936.
DRAINAGE DISTRICTS: Assessment of Benefits. Where an assessment of benefits to a township, part of a drainage district, by commissioners appointed by the circuit court was on account of a public road lying wholly within the district, the assessment would have been valid.
But where the assessment was for "decreased maintenance and increased efficiency of three bridges" across a river, and where no part of the bridges were in the drainage district or the township against which the assessment was made, the township was not liable for the benefits assessed.
Appeal from Putnam Circuit Court. — Hon. A.G. Knight, Judge.
AFFIRMED.
E.M. Jayne for appellant.
(1) It is the "public highways" that are assessed benefits and not the owners of same. By the provision of the statute ". . . . they shall assess the amount of benefits . . . that will accrue . . . to . . . public highway. . . ." "The public highway . . . shall be assessed. . . ." Sec. 10755, R.S. 1929. It is the governmental subdivision of the State chargeable with the maintenance of the public highways that is liable to pay the taxes. Harrison Mercer Counties Dist. v. Trail Creek Township, 317 Mo. 933, 297 S.W. 7. (2) It is admitted that some of the district lands and some public roads are in Elm Township. The notice prescribed by Section 10756 only required that "all persons interested in land and other property in the district" be notified and the notice was sufficient as to Elm Township. Sec. 10756, R.S. 1929. (3) The decree of the court affirming the report of the commissioners with respect to the amount of benefits assessed was res adjudicata. Sec. 10757, R.S. 1929; Garden of Eden Dist. v. Trust Co., 52 S.W.2d 632; Little River Drain. Dist. v. Railroad Co., 236 Mo. 110. (4) Respondent having solemnly asserted by its demurrer that Putnam County was not a necessary or proper party to the action is estopped to later contend that the benefits were to property that Putnam County should have maintained. Lilly v. Mienke, 143 Mo. 146; 49 C.J. 124; 21 C.J. 1226. Arch B. Davis and James W. Davis for respondent.
(1) The assessment of benefits here sued on, as shown by the report of the commissioners appointed to assess benefits, the judgment of the court approving the same and, of the supervisors who assessed the annual tax sued on, being on account of "decreased maintenance and increased efficiency of three bridges across the Chariton River within the boundary lines of the drainage district" and, appellant conceding in this court that "no part of either of the three bridges which is in Elm Township is also in plaintiff district and if the assessment is an assessment of the bridges, then the judgment of the trial court was correct," nothing remains to be done except the affirmance of the judgment. (2) The report of the commissioners appointed to assess benefits and damages to property within the district, having expressly declared that said assessment was on account of, "decreased maintenance and increased efficiency of three bridges across the Chariton River within the boundary lines of the drainage district," they thereby expressly excluded any claim that the benefits were on account of public roads. Expressio unius est exclusio alterius. 25 C.J. 220, and numerous Missouri authorities cited on page 221. Appellant is, by the allegations of its petition, precluded from asserting that the assessment sued on was not on account of bridges.
The appellant filed an action on delinquent drainage tax bills under authority of Section 10765, Revised Statutes of Missouri, 1929, against the respondent in the Circuit Court of Putnam County, Missouri. That court rendered its judgment in favor of the respondent and the appellant has duly appealed to this court.
The appellant is a drainage district that lies in Schuyler and Putnam counties, Missouri. It was organized by a decree of the Circuit Court of Schuyler County under what is now known as Article I, Chapter 64, Revised Statutes of Missouri, 1929. The respondent is one of the townships of Putnam County and a part of the drainage district is in that township.
The Chariton River runs through this drainage district. It constitutes the boundary line between Schuyer and Putnam counties. As already stated the appellant drainage district takes in a portion of each county. There are three bridges across the Chariton River in the vicinity of appellant district. These bridges were jointly erected by Schuyler and Putnam counties. The Putnam County ends of these bridges are not within the boundaries of the appellant district.
The appellant contends that the delinquent taxes were on account of benefits that were assessed to public roads of the respondent. On the other hand, the respondent contends that the assessment is on account of "decreased maintenance and increased efficiency of three bridges across the Chariton River," and as no part of the bridges are in the drainage district and the respondent township, the respondent is not liable for the assessment. Other pertinent facts will be stated in the course of this opinion.
The assessment as made by the commissioners appointed by the Circuit Court of Schuyler County to assess benefits and damages of the appellant district is as follows:
"Township 65 N Range 16 W Putnam County, Mo. Owner of Amount of Tract Property Description No of Benefits No. Ass'd of Property Ass'd Acres Ass'd Ass'd PUBLIC ROADS Putnam Co. Decreased maintenance and increased efficiency $5000.00 of 3 bridges across the Chariton River within the boundary lines of the drainage district."
The decree of the Circuit Court of Schuyler County approving the report of the commissioners is in like form. The drainage tax records on file in the office of the recorder of deeds of Putnam County is the same. The annual assessment, made by the Board of Supervisors of appellant district which is the basis of this suit is as follows:
"Year Description of Property Assessed Amount
1928 PUBLIC ROADS Decreased maintenance and increased efficiency of $190.00 three bridges across the Chariton River within the boundary lines of the Drainage District.
1929 PUBLIC ROADS Decreased maintenance and increased efficiency of 145.00 three bridges across the Chariton River within the boundary lines of the Drainage District.
1930 PUBLIC ROADS Decreased maintenance and increased efficiency of 305.50 three bridges across the Chariton River within the boundary lines of the Drainage District.
1931 PUBLIC ROADS Decreased maintenance and increased efficiency of 205.50 three bridges across the Chariton River within the boundary lines of the Drainage District."
Section 10755, Revised Statutes of Missouri, 1929 (one of the sections under which the appellant was organized), among other things provides: "The public highways, railroad and rights of way, roadways, railroad and other property shall be assessed according to the increased physical efficiency and decreased maintenance cost of roadways by reason of the protection to be derived from the proposed work and improvement. . . ."
If the assessment were on account of the public road of the respondent lying in the appellant district, then the respondent would be liable for the assessment. [Sec. 10755, supra; Harrison and Mercer County Drainage District v. Trail Creek Township, 297 S.W. 1, 317 Mo. 933.] This proposition is not disputed by the respondent when the proceedings organizing the district have complied with the circuit court drainage law. However, the appellant concedes: "If the assessment is an assessment of `bridges' then the judgment of the trial court is correct."
It is our duty in construing all documents to give the words and phrases used therein their plain, ordinary and usual meaning. With this rule of law in mind, the sentence "Decreased maintenance and increased efficiency of three bridges across the Chariton River within the boundary lines of the Drainage District" can only mean that these three bridges are benefited by the organization of the drainage district. If the public roads of the respondent were meant then the commissioners should have described them, but they did not. Section 10755, supra, also provides: "The board of commissioners shall prepare a report of their findings, which shall be arranged in tabular form, the columns of which shall be headed as follows: Column one, `owner of property assessed;' column two, `description of property assessed;' column three, `number of acres assessed;' column four, `amount of benefits assessed;' column five, `number of acres taken for right of way;' column six, `value of property taken;' column seven, `damages.'" The commissioners in their report to the Circuit Court of Schuyler County did not describe any public road in respondent township. Evidently, they came to the conclusion that no public road in respondent township was benefited by the proposed improvement. In fact there was no entire road in both the appellant district and the respondent township except the north half of a road 1226½ feet long, and the commissioners' report did not describe it. When the commissioners assessed the benefits to the roads in Schuyler County, they described them with particularity.
The caption "Public Roads" used in the commissioners' report is not a description of any public road, but is a subheading for the "column," "the description of the property." The description of the property under this column is three bridges across the Chariton River. Of course bridges are a part of a public road, and could be properly placed under the caption or column "Public Roads." Under the phrase "and other property" referred to in Section 10755, supra, the commissioners would have authority to assess benefits to bridges located in the drainage district.
This leads to the inevitable conclusion that the commissioners attempted to make an assessment on account of the benefits to the three bridges. By the admission of the appellant under these circumstances, the judgment of the trial court was correct. The judgment, is, therefore, affirmed. All concur.