State Ex Rel. Jacoby v. Missouri Valley Drainage District

*1008 DOUGLAS, C. J. This is an original proceeding in mandamus. Relator is the assignee of a judgment for $21,076.49 rendered in favor of her late husband Clark E. Jacoby against the Missouri Valley Drainage District of Holt County, a municipal corporation. She brings this action against the district and against the members of its board of supervisors to compel the latter to levy a tax for the purpose of paying the judgment. This court directed the entry of relator’s judgment in the case of Jacoby v. Missouri Valley Drainage District, 349 Mo. 818, 163 S. W. (2d) 930, which we will refer to as the first Jacoby case. The question for decision is whether, under the conditions existing at the present time, the district has authority to levy a tax. If the district has such authority relator’s judgment, under our decision in the first Jacoby case, may be properly paid from the proceeds. The district was created under the act authorizing the organization of drainage districts by the circuit court. (Sec. 12324 et seq. R. S. 1939, Mo. R. S. A.) A tax of fifty cents per acre was levied and collected under Section 12333 for preliminary expenses. Clark E. Jacoby was employed as chief engineer. He prepared a plan for reclamation with necessary surveys. The benefits and damages were assessed, the benefits found to be greater, and the plan was confirmed and approved by the circuit court. Before work on the plan was commenced the United States Government condemned about three-tenths of the area of the district for a game refuge making it impossible to carry out. the plan of reclamation for the district. Since that event nothing further has been done. No move has been made to dissolve the district. The entire proceeds of the tax for preliminary expenses authorized by Section 12333 has been spent. The next levy authorized in organizing a drainage district (Sec. 12340) comes after the benefits and damages are ascertained and the *1009 plan confirmed and approved by the court. When that is done the board of supervisors are then directed to levy a tax of such portion of the benefits necessary to pay the cost of completion of the plan of reclamation. The board of this district could not and can not now make this levy because the intervention of the United States Government has made it impossible to complete the plan as approved. There is another levy authorized if the district is dissolved on the petition of the property-owners (Sec. 12361). When that is done the debts of the district must be paid before dissolution may be decreed and if the district has not sufficient funds on hand to pay such debts the board of supervisors is directed to levy a uniform acreage tax to pay the same. In the first Jacoby case we held the payment of outstanding warrants and other obligations was a condition precedent to dissolution under this section and indicated that the warrants issued to Jacoby were properly payable out of such a dissolution levy. In the meantime the judgment on these warrants stands as a cloud on the title of the land in the district. None of the circumstances under which the statutes authorize a levy of a tax now exist. The plan of reclamation approved can not be completed. No action has been taken to dissolve the district. A tax may not be levied unless expressly authorized by statute. No statute, no tax. State ex rel. American Central Ins. Co. v. Gehner, 315 Mo. 1126, 280 S. W. 416. The power of taxation is exclusively a legislative function. It is not a judicial function. A court may not compel the levy of a tax by mandamus unless there is a specific statute authorizing the tax. State ex rel. Emerson v. City of Mound City, 335 Mo. 702, 73 S. W. (2d) 1017. When authorized, a tax may be levied only within the terms of the statute. Relator argues the decision in the first Jacoby case authorized the levy of a tax to pay the judgment and is res judicata of that question. Such is not our understanding of that decision. The only point decided was that the warrants issued to Jaeoby for his services as engineer constituted a lawful obligation of the district under the facts of that ease, even though the funds raised from the levy of fifty cents per acre for preliminary expenses were exhausted. There was no question presented whether the district was authorized to levy a tax under the conditions then existing and which are now the same. This court has once before had occasion to discuss the extent of our holding in the first Jacoby ease. In State ex rel. Quigg v. Liquidator of Sewer Districts in St. Louis County, 352 Mo. 10, 175 S. W. (2d) 828, we refused to compel a tax levy on authority of the first Jacoby case. Discussing that case we said: “The Jacoby case was not mandamus to compel a levy in connection with the liquidation of a dissolved district, but plaintiff there sought a general judgment upon warrants issued for engineer’s services against a district which was still a going concern. . . . Certainly, if the Missouri Valley Dis *1010 trict was liable on its warrants for services of its engineer in preparing the plan of reclamation already approved by final decree of the circuit court, the question of how it might ultimately pay this debt was not material on the matter of the right of the engineer to a judgment fixing such liability.” Citing State ex rel. Emerson v. City of Mound City, 335 Mo. 702, 73 S. W. (2d) 1017, supra; and Coleman v. Kansas City, 351 Mo. 254, 173 S. W. (2d) 572. Also see our recent decision in State ex rel. County of St. Louis v. St. Johns-Overland Sanitary Sewer District, 353 Mo. 974, 185 S. W. (2d) 780. It is our conclusion the first Jacoby case went only so far, and could go only so far, as to hold the warrants issued for the engineer’s services were a valid obligation of the district, properly payable out of funds raised by taxes when and if levied. Under existing conditions that decision is not sufficient authority to compel the levy sought in this case. We have no authority to order a levy until the conditions required by the statutes have been fulfilled. The peremptory, writ is therefore denied. Hyde, J., concurs in separate opinion; Clark, Tipton and Gantt, JJ., concur and also concur in separate opinion of Hyde, J.-, Ellison, J., dissents in separate opinion; Leedy, J., dissents and concurs in separate dissenting opinion of Ellison, J.