State Ex Rel. Hotchkiss v. Lemay Ferry Sewer District

FRANK, J. Original proceeding by mandamus to compel the levy and collection of additional uniform taxes against the lands in Lemay Ferry Sewer District of St. Louis County, Missouri, to provide funds to pay certain outstanding warrants of the district. Respondent Donworth filed no return. The other respondents filed returns in the nature of demurrers to the petition on the ground that the petition fails to state facts sufficient to constitute a cause of action in that it appears from the face of the petition that the sewer district had theretofore exhausted its taxing power and for that reason the liquidator had no authority to levy an additional tax. The petition alleges, in substance, that respondent sewer district was organized and incorporated under the provisions of Chapter 65, Revised Statutes of Missouri 1929. The board of supervisors proceeded in accordance with the statute to appoint engineers and incur certain expenses in the organization and in the preliminary work of the district, including court costs, the salary of the secretary of the board of supervisors, the per diem of the commissioners, office rent, and the fees of the title company which furnished abstracts and title certificates. For these expenses the board of supervisors issued warrants on the treasurer of the district in the form provided by Section 11052, Revised Statutes 1929. These warrants were duly presented to the treasurer, who endorsed thereon the lack of funds in the treasury, pursuant to the provisions of Section 11057, Revised Statutes 1929. Respondents are the holders of warrants for these expenses. In this district the board of supervisors made a levy of ten cents *660 per square of one hundred square feet on all lands within the district, in accordance with the provisions of Section 11Ó37, Bevised Statutes 1929. A substantial part of this tax has been collected, but it is insufficient to pay the outstanding warrants held by relators and others. At the regular session of 1931, the Legislature passed an act (Laws 1931, p. 355) repealing Chapter 65, Bevised Statutes 1929, the law under which the district was organized, with a saving clause, providing that all the provisions of the law should continue in force for the purpose of paying all outstanding and lawfully incurred costs, obligations and liabilities of all sewer districts and providing that no additional expense should be incurred except that necessary to pay the costs, obligations and liabilities theretofore incurred, and providing that the effect of the act should be equivalent to a finding by the circuit court under the provisions of Section 11062 that the estimated cost of works and improvements of each district exceeded the estimated benefits. At the special session of the Legislature 1933-1931, an act was duly passed terminating the rights and duties of boards of supervisors of these sewer districts and providing for the appointment of an official liquidator for the same. Bespondent Tegethoff was appointed by the Governor and assumed his duties and succeeded to all the rights, powers and duties of the board of supervisors of this district. Bespondent Tegethoff has refused to make any additional levy to pay the warrants held by relators and other costs of winding up the district, upon the ground that the district exhausted its power when it made the ten-cent levy, and for that reason he has no power now even upon the dissolution of the district to make any further levy. No sewer was built in the district in question. The law under which the district was organized was repealed. [Laws 1931, p. 355.] By express provision of the repealing act, the repeal amounted to a dissolution of the district. The sole question presented by the instant proceeding is whether or not, upon dissolution of the district, an additional uniform tax can be levied under the provision of Section 11062, Bevised Statutes 1929, when the preliminary expenses incurred by the district prior to its dissolution exceeds the original ten-cent levy theretofore made under Section 11037, Bevised Statutes 1929. There is no question about the authority of the liquidator to make the additional levy if such a levy is authorized by statute. The question presented involves the proper construction of Sections 11037 and 11062, Bevised Statutes 1929. The pertinent parts of Section 11037 read as follows: “The board of supervisors of any sewerage district organized under the provisions of this chapter may, as soon as appointed and qualified, levy a uniform tax of not more than ten cents per square *661 of one hundred square feet upon all the lands within such district, to be used for the purpose of paying expenses incurred and to be incurred in organizing the district, in making surveys of the same, in assessing benefits and damages, and in paying other expenses necessary to be incurred prior to the time when the said board shall be empowered by subsequent provisions of this chapter to provide funds with which to pay the total cost of works and improvements of the district.” The presumption is that the Legislature had a purpose in enacting Section 11037 and intended that it should have life and operative effect. It is argued that the purpose of the section was merely to provide a working fund so that expenses might be met as they were incurred, to the extent of the ten-cent levy, but that it .was not intended to limit the expenses to the amount of that levy. The section will not admit of the construction contended for. It provides that the board of supervisors may levy not more than ten cents per square of one hundred square feet. It further provides that the ten-cent levy shall be used for the purpose of paying expenses incurred and to he incurred “. . . prior to the time when the said board shall.be empowered by subsequent provisions of this chapter to provide funds with which to pay the total cost of works and improvements of the district. ’ ’ In other words, this section provides that the ten-cent levy shall be used for the purpose of paying expenses incurred and to be incurred over a definite and fixed period of time, and that period of time, under the language of the statute, dates from the organization of the district to the time when the construction of the Sewer is authorized, or the district is dissolved. Expenses incurred and to be incurred necessarily mean the entire expense. Since this section provides that the ten-cent levy shall be used for the purpose of paying such expenses, there is no room for argument that such expenses, or any part of them, should be paid from any other levy. There is no doubt but what Section 11037, standing alone, limits the levy for preliminary expenses to the authorized maximum levy of ten cents per square of one hundred square feet. This brings us to a consideration of Section 11062 upon which relators rely as authorizing additional levies above the ten-cent levy authorized by Section 11037. The pertinent part of Section 11062 reads as follows: “If after determining the objections made to the commissioners’ report, the court shall find that the estimated costs of works and improvements as reported by the board of commissioners, or as amended by the court exceed the estimated benefits, the court shall then render its decree declaring the incorporation of the district to be dissolved as soon as all costs incurred, which shall include court costs and all obligations and expenses incurred in behalf of the district by the *662 board of supervisors, shall have been paid, and if the uniform tax levied under the provisions of this chapter be found insufficient to pay all such costs, the board of supervisors shall make such additional uniform tax levies as will be necessary to pay such deficiency.” A literal construction of Section 11062, standing alone, would destroy the limitation placed on the levy by Section 11037, allow the district to incur preliminary expenses in any amount it saw fit, without limit, "and, upon dissolution of the district, permit additional levies to be made to pay the outstanding obligations of the district, even though the combined levies be far in excess of the maximum levy of ten cents authorized by Section 11037. It thus appears that when these two sections are considered separately, they appear to be in hopeless conflict. However, as they are parts of the same act, and relate to the same subject matter, they should be read and construed together and both be given force and effect, if by so doing we can effectuate the intention of the Legislature, and at the same time not violate any recognized rule of statutory construction. As heretofore seen, Section 11037 fixes the maximum levy which can .be made for the purpose of paying preliminary expenses incurred and to be incurred, at ten cents per one hundred square feet, but it does not require that the maximum of ten cents per square be levied in the first instance. The Legislature knew that fact. If a district should levy less than the maximum limit of ten cents, then incur expenses in excess of the levy made, but within the authorized limit of ten cents, such deficiency should be paid because incurred within the limit authorized. Evidently the Legislature intended by the enactment of Section 11062 to care for such a deficiency by providing for additional levies within the limit authorized, to pay deficiencies within, but not in excess of such authorized limit. We so construe Section 11062. Such a construction is not only reasonable but it accredits the Legislature with a laudable purpose in enacting both sections and gives to both sections life and operative effect. The presumption is that the Legislature had a purpose in enacting both sections and intended that both should be effective. To give the sections the construction contended for by relators would emasculate Section 11037 by removing the limit placed on the levy by that section, and make possible the incurring of useless and unnecessary expenses which would finally result in the imposition of unjust and unfair tax burdens. Relators make the further contention that the language of the repealing act shows that the Legislature had in mind that additional levies might be necessary. The part of the act relied upon reads as follows: “Provided, that all of the provisions of the law hereby repealed shall continue in force for the purpose of paying all outstanding *663 and lawfully incurred costs, obligations or liabilities of all sewer districts.” It "will be noted that this statute continues tbe existence of the district for the purpose of paying lawifullif incurred obligations. Obligations incurred in excess of the authorized maximum levy of ten cents per square of one hundred square feet are not lawfully incurred' obligations, and therefore, are not the character of obligations referred to in' the repealing act. The district in question has made the maximum levy of ten cents per one hundred square feet. Relators by this proceeding seek to compel an additional levy in excess of the ten-eent levy heretofore made. Relators call attention to the provisions of Section 11040 and 11044. Section 11040 provides, among other things, the following: “By and with the advice of the engineer of the district they shall also estimate the cost of the sewers, outlets and other sewer improvements set out in the sewer plans, which estimate shall include the cost of property required for right óf way, outlets and other sewer improvements, and the probable expense of organization and administration as estimated by the board of supervisors, and shall tabulate the same.” Section 11044 provides that after it is determined from the commissioners’ report that a sewer is to be built, and after the list of land with assessed benefits has been filed, a tax levy shall be made of such portion of the benefits and. in proportion thereto “as may be found necessary by the board of supervisors to pay the cost of the completion of the proposed works and improvements, as shown in the sewerage plan and in carrying out the objects of the district.” It is argued that the parts of the two sections last above quoted when read together clearly show that if the total cost does not exceed the benefits, and if the sewers are to be built then all of the administration costs over and above the ten-cent levy, as well as the construction of the sewers, will be paid in proportion to the benefits against each lot rather than on an area basis, but no limitation is placed by either of these sections upon the amounts so to be expended. We do not agree with relators’ contention. The two sections of the statute to which relator calls attention not only do not support their contention but conclusively show that there is no merit in the contention made. It is true that the first section to which attention is called, Section 11040, provides that the commissioners shall include in their estimate of costs, the probable expense of organization. The organization expense which by express provision of Section 11037 is to be paid out of the preliminary levy of not to exceed ten cents per one hundred square feet, is a part of the total cost of the project. The only purpose of requiring the commissioners to include organization cost in *664 their estimate of cost is to place the circuit court in a position to determine whether or not the estimated total cost of the project would exceed the total benefits. It clearly appears from the next section to which áttention is called, Section 11044, that if the sewer is to be constructed, organization cost is not to be included in the levy to be made to pay the cost of construction. That section provides that the board of supervisors shall make a levy sufficient to pay the cost of the completion of the proposed works cmd improvements as shown in the sewerage plan and in carrying out the objects of the district. The completion of the work means to finish what was theretofore begun. Necessarily, therefore a tax to pay the cost of the completion of the works . and improvements does not include the preliminary work theretofore done and paid for by a maximum levy of ten cents authorized by Section 11037 for that purpose. Again, the levy authorized by Section 11044 is to pay for the completion of the works and improvements, and not to pay for the preliminary surveys and attendant expenses, for the purpose- of determining whether or not the improvement should be made. Appellants rely upon" the ease of State ex rel. Becker v. Wellston Sewer District of St. Louis County, 332 Mo. 547, 58 S. W. (2d) 988. The Wellston Sewer District and the district involved 'in the instant action were both organized under provisions of Chapter 65, Revised Statutes 1929. After the Wellston Sewer District was incorporated, and prior to the repeal of the law under which it was incorporated, it did certain preliminary work in the preparation of a sewer plan and necessarily incurred preliminary and administration expenses for which preliminary tax levies were made. After the repeal of the law under which the district was incorporated, the board of supervisors refused to go further. Certain property owners in the district brought mandamus to compel the board of supervisors to proceed with the sewer plan, contending the organization had progressed to a point such as gave them a vested right to have the sewer project carried out, and asserting that such right was violated by the repealing statute. The sole question in that case was whether the board of supervisors could be compelled by mandamus to proceed with the sewer project and construct the sewer after the law providing for the incorporation of the district and the construction of the sewer had been repealed. The question of the authority of the board of supervisors to levy for preliminary or organization expense, more than the maximum of ten cents per square authorized by Section 11037, was not in that case. It is true the opinion in that case contains language, by way of recital, which indicates that the board did have such power, 'but the opinion does not discuss the question. We do not think the writer either intended to or did decide that question. *665 No case has been cited in the briefs of either party deciding the question presented in this case. There is a decision of the Kansas City Court of Appeals which decides the question on similar statutes in a drainage act. [Macon County Levee District No. 1 v. Goodson, 22 S. W. (2d) 651, 652.] In that case the statute, Section 4608, Revised Statutes 1919, provided that the board of supervisors should levy a uniform tax of not more than twenty-five cents per acre to be used for the purpose of paying expenses incurred and to be incurred in organizing the district, making surveys, etc. Pursuant to this statute the board made a levy of twenty-five cents per acre. Later, upon dissolution of the district, it was found that the twenty-five-cent levy theretofore made was not sufficient to pay the costs and obligations incurred by the board of supervisors. Section 4633, Revised Statutes 1919, provided that if upon dissolution of the district it was found that the levy theretofore made was insufficient to pay costs and obligations of the district, the board should make additional levies necessary to pay the deficiency. Pursuant to this session, the board of supervisors made an additional levy of fifty cents per acre. Defendant in the cited case resisted the payment .of the additional levy against his land. He lost in the court below and appealed. The Court of Appeals, without discussing the question, said, ‘ ‘ The statutory authority to levy the additional tax is quite plain,” and upheld the levy. The decision is unsound and should be and is overruled. Our conclusion is that the board of supervisors cannot be compelled to make an additional tax levy in excess of the maximum levy of ten cents per square authorized by Section 11037, Revised Statutes 1929. The alternative writ of mandamus heretofore issued should be quashed. It is so ordered. Gantt. Collet, Leedy and Tipton, JJ., concur; Ellison, C. J., dissents in separate opinion in which Says, J., concurs.