Elsberry Drainage District v. Winkelmeyer

212 S.W. 893, 278 Mo. 268, 1919 Mo. LEXIS 84

• Court: Supreme Court of Missouri
• Decided: June 2, 1919
• Status: Published

Opinion

BLAIR, P. J.

This is an appeal from a judgment on demurrer to the petition in a suit begun to collect drainage taxes. The petition contained two counts: one for a tax imposed to pay organization and preliminary expenses (Sec. 11, p. 238, Laws 1913), and one to recover an annual installment tax (Sec. 19, p. 243, Laws 1913) levied by tbe board of supervisors in tbe fall of 1914.

Taxf°m I. The board of supervisors, as soon as elected and qualified, on September 13, 1914, levied tbe tax under Section 11 and certified it to tbe collector. Tbis tax was “due and payable as soon as assessed” and, not being paid, became delinquent “by Decem^er thirty-first of the year in which” it was levied, to-wit, 1914. We discover no defect in tbe count based on tbis assessment, and respondent does not contend there is any. He asserts tbis count was overlooked. Tbe record shows simply that tbe demurrer was sustained to the petition. Tbe judgment on tbis count is wrong and cannot stand. The tax became due and collectible in 1914 by plain provision of tbe statute.

Amiuai installment Tax II. Tbe count for tbe annual installment presents a different question. Tbe decree confirming tbe amended report of tbe commissioners was rendered September 2, 1914. Tbe general levy of the total tax (Sec. 18, p. 242, Laws 1913) thought to be necessary for the completion of tbe work was not made until September 30, 1914. Tbe drainage tax book was thereafter made up as tbe same section requires. Subsequently (Sec. 19, p. 243, Laws 3913) tbe board levied an annual installment tax and certified tbis to tbe collector on November 5, 1914. Tbe question on tbis branch of tbe case is whether, in tbe circumstances, this levy of an annual installment tax for 1914 can be enforced as a tax for that year, collectible in that year and delinquent December 31, 1914.

Tbis system of organizing drainage districts bad its origin in 1879. [Secs. 6207, et seq. R. S. 1879.] Under Section 6218, Eevised Statutes 1879, it was provided that as soon as the district had been organized, the board of supervisors, in order to pay all expenses, including cost of survey, construction, maintenance and administration, might “order the assessment of a tax, not exceeding fifty cents on each acre of land in the district, . . . for each and every year, and until no further expenditure of money in that behalf shall be necessary.” ibis tax was required to be certified to the clerk of the county court and by him extended on the general tax book like other taxes, and collected by the collector of the county. This section, except for the assessment, adopted the 'general taxing machinery in use under the general law. [State ex rel. v. Angert, 127 Mo. l. c. 463; Drainage Dist. v. Daudt, 74 Mo. App. l. c. 585.] Under this statute the' taxes were extended and the tax book delivered to the collector within ninety days after the correction of the book, which was made immediately after the county board of appeals and the state board of equalization acted, usually in April. [Sec. 6671-6676, 6748, E. S. 1879.] It is clear the first assessment under Section 6218 could not go on the tax book unless it was certified to the county clerk prior to the time he was required to deliver that book to the collector. The conclusion must be that Section 6218 contemplated that the first fifty-cent-per-acre assessment was to be extended on the tax book which was made up and certified by the county clerk to the collector next after the assessment was made by the board of supervisors. Had Section 6218 been in force in 1914 there can be no doubt a levy after September 30th of that year, as in this case, would not have been collectible before the fall of 1915. There would have been nothing upon which to base an earlier collection. In other words, Section 6218 would not have empowered the board to make an assessment in October or November, 1914, which could have been the basis of a tax collectible in that year. Section 6218 remained unchanged until 1905. [Sec. 6528, E. S. 1889; Sec. 8262, R. S. 1899.] Section 8203b (Laws.1905, p. 199), which amended Section 8262, Revised Statutes, 1899, provided that as soon as the decree confirming the report of the commissioners had been filed in the office of the county clerk, the board of supervisors should levy upon benefited lands a tax equal to the expense of organization and preliminary work and estimated cost of construction, administration, etc., and cértify this levy to the county clerk, whose duty it became to record it. Section 8263b (Laws 1905,. p. 200) closed with that provision. Section 8263c began thus: “The said board of supervisors shall annually thereafter determine, order and levy the amount of the installment of the tax named in the next preceding section, which shall become due and be collected during said year at the same time that state and county taxes are due and collected, which annual installment shall be ■ evidenced and certified by the said board not later than March 1st of each year to the county clerk,” etc. The form of the board’s certificate is set out and contains the following: “The said installment of tax shall be collectible and payable the present year,at the same time state and county taxes are due and collected.” The clerk was required to record the certificate in a drainage district book and to set out therein the names of owners, description of lands and dmount of the installment, and to certify this as “true copies of the certificates of total and annual --drainage district installment tax for the year A. D. 190 — and,” etc. This certified record the clerk was required to deliver “each year to the collector” at the time the collector commenced the collection of state and county taxes. Thenceforward the act retained in force the provisions of the general revenue law concerning collection of taxes. Section 8263g provided that the tax was to become delinquent December 31st of the year for which said taxes were levied. The principal change made by this act, affecting the question in this case, is the omission of the requirement that the county clerk should extend the drainage tax on the general tax book. For this it substituted the requirement that the clerk should make out a separate tax book and extend the taxes thereon. It is apparent that the Act of 1905 dealt with calendar years. It is certain it required the board to certify the tax. to the county clerk by March 1st, and required him to make up the drainage tax book thereafter an¡I by the time the collector commenced the collection of state and county taxes. The time for the extension of taxes by the clerk was fixed definitely, as it had been under the former law. The difference was merely in the book upon which .the extension was oto be made. Under this act a levy of an installment made in October by a district which had not earlier reached a stage in organization at which it could make such levy, could not have been certified to the clerk until after the time the collector was required to begin his collections of state and county taxes. Under that act, when a levy made in October or November was certified to the clerk “by March 1st” it would have been the clerk’s duty to make up a tax book for the calendar year following the levy. This is clear from the provisions of the act which have been quoted.

The acts of 1909 (Sec. 55Í9 et seq., R.. S. 1909) and of 1911 (Laws 1911, p. 213, et seq.) made no changes which materially affect the question in this case.

Section eighteen of the Act of 1913 (Laws 1913, p. 242) requires that the board of supervisors, after the recording of the decree of confirmation of the amended commissioner’s report, shall, without unnecessary delay, levy a tax equal of such portion of the benefits assessed as shall be necessary to pay the cost of construction and ten per cent. The secretary of the board is then required to make out a “drainage tax record.” Section 19 reads thus: “Section 19. The said board of supervisors shall each year thereafter determine, order and levy the amount of the annual installment of the total taxes levied under the preceding section, which shall become due and be collected during said year at the same time that state and county taxes are due and collected, which said annual installment and levy shall be evidenced and certified by the said board not later than September 1st of each year to the collector of revenue of each county in which lands and other property of said district are situate.” A form of certificate is then set out. This certificate states that the tax cerified is “for the year 19 — ” and that “said taxes shall be collectible and payable the present year at the same time that state and county taxes are due .and collected, and you are directed and ordered to demand and collect the said taxes at the same time you demand and collect the state and county taxes due on the same lands and other property,” etc.

It is to be remembered the decree confirming the commissioner’s report was rendered September 2, 1914, the levy of the total cost tax (Sec. 18), was made September 30, 1914, and the annual installment was levied after this was certified and recorded, and was certified to the collector November 5, 1914.

Appellant’s contention is that this first annual installment was due and collectible in and for the year 1914. To maintain this position it contends that the words “each year thereafter” should be-construed as if they read “thereafter each year.”

In construing statutes it is the duty of this court, “unless such construction be plainly repugnant to the intent of the Legislature or of the context of the State statute,” to construe words and phrases “in their plain, ordinary and usual sense.” [Sec. 8057, B. S. 1909.] If the words, in their natural sense, as used, and “in order of grammatical arrangement” in which they are used, “embody a definite meaning, which involves no absurdity and no contradiction between the different parts of the same writing,” that is the meaning it is our duty to ascribe to them. [State ex rel. v. Board of Curators, 268 Mo. l. c. 608, 609.] It is not contended the words “each year thereafter” do not have a plain and nsnal meaning which involves no absurdity, nor is it contended that if such meaning is given them appellant’s position can be maintained. The argument is that the proposed work would be delayed in some cases if the words were so employed; that the act is remedial, and the beginning of the work of improvement should not be thus postponed. The word “thereafter” in a connection like this ordinarily means “after that; afterward.” “The time or period following an event or date.” [Standard Dict.; Webster’s International Dict.; Century Diet.; State v. Ryan, 120 Mo. l. c. 93; State v. Murray, 237 Mo. l. c. 168.] Used in its ordinary sense the word “thereafter” in Section 19 refers to “the time or period following an event or date” previously fixed in'the same act. No such time or date is fixed in that part of Section 19 which precedes that word. It must refer to some time' or date fixed in a previous section. Section 18 provides for the levy of the general tax covering the estimated total cost of the proposed work. This levy is a step necessarily precedent to the annual levies contemplated by Section 19. Likewise the apportionment of the general levy to the respective tracts in the district and the filing in the recorder’s office, for lien purposes, of a certificate showing such apportionment (Sec. 23) are things required to be done prior to the levy of the annual installment, as is clear from Sections 18, 19 and 23 and the forms set out therein.

The Legislature was at no loss for language to provide for the immediate collection of a tax when it desired it to be so collected. In Section 11 of the same act it had, as pointed out, provided that “the board of supervisors ... shall, as soon as elected and qualified, levy a uniform tax of not more than fifty cents per acre,” and “such tax shall be due and payable as soon as assessed, and if not paid by December 31st 'of the year in which it has been levied, the same shall become delinquent.” This language is plainly effectual to accomplish, with respect to the acreage tax under Section 11, exactly what appellant argues was intended, with respect. to the first annual installment tax, under the quite different language of Section 19. The natural import of the words in Section 19 is different from that of the words quoted from Section 11. It would be a little remarkable if the Legislature could- be held to have intended to express the same thing by two formulas so divergent in their usual and natural meaning. There is nothing in the act which can be construed to conflict with the natural interpretation of the words “each year thereafter.” The danger of delay apprehended by appellant is obviated by a provision empowering the board to issue bonds (Sec. 42, p. 256, Laws 1913) and thus anticipate its revenue and provide at once a fund for the work of construction. The acreage tax (Sec. 11) provides for the preliminary expenses. Section 19 grew by amendment gradually out of Section 6218, Revised Statutes 1879. All along its course it carried the meaning which the usual and ordinary sense of the words “each year thereafter” gives to Section 19.

This is not a case in which an official has neglected to comply with some regulation designed to secure order, system and dispatch in proceedings for the assessment and enforcement of taxes (State ex rel. v. Phillips, 137 Mo. 259), but is one in which the question is whether the board had the ■power to impose an installment tax for a particular year.

When the words in Section ,19 are construed as the statute (See. 8957) requires, no obstacle to such construction appearing in this case, it is clear the board had no power to make a levy collectible in 1914. The delay was not due to the dereliction of any official concerned in the matter, but arose from the absence of statutory authority to make the levy. As already pointed out, the Legislature has provided means whereby the district board may avoid any consequent delay in the work of the improvement. This count stated no cause of action.

III. Because of the error pointed out in Paragraph I, the judgment is reversed and the cause remanded.

All concur; Bond, Jin the result.