Watts v. Levee District No. 1

145 S.W. 129, 164 Mo. App. 263, 1912 Mo. App. LEXIS 333

Opinion

REYNOLDS, P. J.

(after stating the facts). — The facts connected with the issue of these warrants are so fully set forth in the opinion by Judge Valliant in State ex rel. Stotts v. Wall, supra, that it is unnecessary to go into them.

Before considering whether these warrants are void, let us see if there are here present such acts of ratification or acquiescence by the corporation as raise an estoppel, conceding for the argument, but not conceding it as a fact, that the proceedings under- which the warrants, of which the ones in suit are a part, were issued, were merely invalid and not void. “An estoppel is a legal consequence — a right — arising from acts or conduct; while acquiescence and ratification are but facts presupposing a situation incomplete in its legal aspect, i. e., not as yet attended with full legal consequences.” [Bigelow on Estoppel (5 Ed.), p. 457.] Let us consider whether there has been an express ratification.

Whether an estoppel can be invoked as against this levee district, arising from the acts of its officers, is a very serious question. The directors of this district are public officers and the district itself a public corporation; although, as held by the Supreme Court in Wilson v. King’s Lake Drainage & Levee District, supra, and cases there cited, the levee districts are not political subdivisions of the state but public, governmental agencies and in no sense private corporations. Certainly no estoppel should be adjudged against them but on clear and unmistakable proof of acts .of ratification and acquiescence, done within the line of their powers and duties. The directors of these levee districts have no power to impose any obligations on the district unless first authorized to do so by vote of the landowners of the district. They are quasi public officers, officers of “a public governmental corporation.” Our Constitution, section 48, article 4, provides that the General Assembly itself, the supreme lawmaking power of the state, shall have no power to grant, or to authorize any county or municipal .authority to grant, any extra compensation to a public officer, agent, servant or contractor, “after service has been rendered or a contract has been entered into and performed in whole or in part, nor pay, nor authorize the payment of any claim hereafter credited against the state or any county or municipality of the state under any agreement or contract made without express authority of law and all such unauthorized agreements or contracts shall be null and void.” While this constitutional prohibition does not literally cover the class of officers or public agencies to which these drainage districts belong, it would seem that its spirit should cover them, and that spirit is against the allowance or payment for public work, services or labor of any kind done in the first instance without authority of law, as was the case here.

There is very positive evidence that at the Crosno meeting, that is, the meeting held in July, 1900, certainly immediately prior to that meeting being called to order, or at least in the act of calling it to order, the members of the board of directors becoming anxious about a favorable vote, distinctly gave notice, through Mr. Hess, one of their number, that the contemplated action on voting for the levee along the whole line of the county and including the whole district, was not to be considered as ratifying the warrants which had previously been issued for the seventeen-mile part of the levee in the north end of the county and that none of the money authorized to be raised by the action of this meeting was to be applied in payment of those warrants. It is true that no minute was made in the records of this meeting of what Mr. Hess then said, but the record of that meeting contains”this entry: “The object and purpose of the meeting were explained to the landowners present by P. J. Hess on behalf of the board of directors, who asked specific instructions from the meeting.” "What Mr. Hess then said is not recorded; it is not usual to do that; but he and others have testified to what he said, as we have seen. This testimony, so far from contradicting, supported what the minutes affirmatively show. Moreover, it has been determined in many cases thatparol evidence of corporate acts is admissible, as in the case of natural persons, and while the records are generally conclusive of what actually took place, this rule does not apply when the record on its face shows its incompleteness. Nor are they conclusive when fraud, or the like appears. [Davis Mill Co. v. Bennett, 39 Mo. App. 460, 1. c. 464. See, also, Preston v. Mo. & Penna. Lead Co., 51 Mo. 43, and cases cited, page 46.] We hold that this evidence, in view of the obviously incomplete entry of what Mr. Hess did state, was admitted properly over the objection of plaintiff, and it tends to prove that the matter of these warrants was brought up at that meeting and that it was distinctly understood that the adoption of the proposition submitted by the board of directors at the meeting of 1900 was not in any way whatever to be held to bind the landowners of the district to the payment of the warrants that had been theretofore issued for the construction of the seventeen-mile piece of levee.

Apart from that, however, the proposition submitted, which was adopted by the resolution of a decided majority of the landowners there present and voting, contains intrinsic evidence of the fact that there was no ratification whatever of the action of part of the landowners of the district at the meeting held in November, 1893, in authorizing a tax to pay for the old levee. The proposition itself, as submitted, was for the construction of a levee “from the New Madrid county line in the Mississippi river northward along the north bank of Big Lake to the Still House; and it is further ordered and determined that the levee heretofore built shall be strengthened, . . . and that it is necessary to construct a levee and strengthen and repair the old levee as above set forth.” The proposition submitted to the landowners in the form of a resolution was “that in order to defray the expenses of surveys, estimates of levees to be built and cost thereof, and to pay the officers, agents, servants and employees of said levee district, we do hereby order the assessment of a tax,” etc. In the notice to the landowners, after describing the line of the levee as taking in the whole east and north sides of the county, they were notified to appear at the meeting of July, 1900, to show cause if any they had why the land should not be assessed with their proportionate part of the cost of said work and an estimate of the probable cost of the work and of the amount of assessment “as will be necessary to pay for said work,” would be made known to the landowners present, “and a vote will be taken whether the proposed work shall be done in said district as above described.” The report and estimate of the engineer and the assessment of the assessor, “were- laid before the landowners present, showing that the probable cost of the levee wonld be $262,781 and that the probable rate per centum therefor on the valuation of said lands as increased by said work would be forty per centum, and the proposition was then submitted to the landowners in said district benefited by the work present in person or by agent or attorney whether said work should be done, whether said levee should be built and the said forty per centum be assessed against said lands to build said levee.” This was the proposition submitted, voted on and adopted.

It would be hard to use words that more clearly indicated that the proposed tax was to pay “for work thereafter to be doné;” to “thereafter construct a levee;” to. “repair the old levee.” No one reading the resolution as adopted could by any possibility have supposed that authorization for payment of work theretofore done was contemplated. In the estimate submitted, when the old levee is referred to, the language used is, that the estimate submitted and the ratification which is asked of the landowners, embraces the cost, not of the building of the original seventeen miles, but “that a levee shall be built around and along the river front of said levee district from the New Madrid county line in the Mississippi river northward along the north bank of Big Lake to the Still House; and it is further ordered and determined that the levee heretofore built shall be strengthened, that such levee and such repairs are necessary to protect the district from inundation and overflow from rivers; . . . that it is necessary to'construct a levee and strengthen and repair the old levee as above set forth.” Counsel for appellant themselves say in their reply brief: “Bear in mind that seventeen miles of this same levee which the board was ordering- built at this time, had been constructed and paid for by the warrants in suit and others of similar import. Notwithstanding this.levee had been built, the board of directors ordered it built again and submitted that proposition to the landowners at the Crosno meeting and they decided to build it and voted a tax for that purpose.” But none of the warrants here involved were for rebuilding the old levee; the expenditures authorized were to repair that, not to pay for the old work but to pay for new work. It therefore is very clear that all that was contemplated in connection with the old levee was to repair and strengthen it, if necessary even rebuild it; not a word is used looking to payment for work before then done in building- the old levee. There was a distinct declaration that the fund derived from the taxation to be ordered and to be levied under the action of the landowners of the district had in 1900, was solely for payment of work thereafter to be done. Hence we find there was no express ratification of the issue of these warrants.

But it is said that an estoppel has arisen by. the act of the directors in using the old levee or in repair • ing it, and that the district is estopped by that from refusing payment of these warrants.

There is testimony to the effect that this part of the levee constructed under the vote of 1893 is in. use and has been repaired. For that matter, it may be noted that there is testimony that parts of a levee constructed in 1854 and afterwards are also in use. That the seventeen miles built under the orders of 1893 were there, is certain. What were the people of the district to do with it? Were they to tear it down and start over? Were they to refuse to repair it as needed? In short, unless these public officers of the district, or the public, the landowners who constituted the district, were to abandon this levee entirely, were they to pay for its construction? We do not consider it necessary to here pass on that. The question here is as to payment of these warrants, and as to whether the district can, in this action, he required to pay them, to pay these warrants drawn without authority of law and for this old unauthorized work. In the Wall case-the Supreme Court had before it the question of the validity of the assessment and levy of taxes from which to pay these warrants. It was there held that a tax assessment could not be laid unless authorized by a meeting of the whole district, and when an assessment is laid it must cover all the lands in the district; that in the case then before the court, the board of directors had undertaken to say that some lands in the district would be improved and some not and they undertook to divide the district, notifying only the landowners of a part of the district, and giving protection to the part they thought needed it and leaving unprotected the part they thought did not need it, and imposing an assessment on a part to the exemption of the rest, and the court said (1. c. 221): “The board of directors have no such power, nor can the county court confer that power on them, nor would it change the case if their action was prompted by an understanding on their part that the landowners in the portion of the district left out did not wish to come in. While the district remains as the county court organized it, it is a unit that no one else can devide.” And further, at page 223, the court held: “It is only in a meeting to which all the landowners in the district are called, with the notice and in the manner prescribed in section 6681 (R. S. 1889), that authority to build a levee and lay an assessment to meet the cost can be given, and even in such meeting the assessment cannot be partial; it must cover all the lauds in the' district, or it will be binding on none. It follows from the foregoing interpretation of the provisions of chapter 101, Revised Statutes 1889, that the meeting of November 28, 1893, which essayed; to authorize the construction of the levee and the assessment to. pay for it was itself without authority and all its acts invalid.”

It is contended hy the learned counsel for appellant in this case, that that decision is neither between the same parties nor does it declare these warrants void, and that the remarks of .Judge Valliant, who delivered the opinion, that all the acts of the meeting of November 28, 1893, were “without authority and invalid,” are mere dicta. It is true that that case was not between these same parties and that it arose, not on the payment of the warrants but on the validity of an assessment of taxes to raise funds with which to pay the warrants. But we do not consider these words of Judge Valliant mere dicta, and the opinion does declare the law for us and is conclusively binding upon us in determining that the meeting of a portion of the landowners in the district, held in 1893, was not such a meeting as provided for by law; that all its proceedings were invalid, and that the assessment levied to pay warrants, issued for that work, was invalid. It is difficult to escape the conclusion that invalid as here used means void, although it is true that the two words are not always synonymous. But it is clear that by this decision, as is said by our Supreme Court -in Wilson v. King’s Lake Drainage & Levee District, supra, when referring to the decision of the court in King’s Lake Drainage & Levee District v. Jamison, 176 Mo. 557, 75 S. W. 679, that the proceedings before had in the creation of the district and levy of the tax were “torn up root and branch. . . . With that opinion the contracts made and the warrants issued by the old board fell to the ground.” Our Supreme Court, in the Stotts-Wall case, certainly has announced that in cdhsequence of the invalidity of the proceedings of the meeting of 1893, no tax levy can be made or enforced in payment of "these warrants. The validity of these warrants de pends on the validity of the proceedings of the meeting hy which their issue was ordered. Those proceedings falling, these warrants fall. If we were now to say that the funds arising under the levies made by authority of the proceedings of July, 1900, can be reached dr, more properly speaking, that these warrants can be merged into a judgment, to be enforced against the only fund which this board of levee commissioners has at its disposal, namely the funds derived from the assessment and levy authorized by the meeting of July, 1900, we would virtually be overturning the decision of the Supreme Court in the above case, a thing we cannot do. That court has there specifically held, and as applying to the tax levied or ordered to be levied in October, 1893, for the construction of this seventeen miles of levee, that no tax levy can be made for that purpose because the proceedings authorizing it were invalid. As before noted, as said in the Wilson case, supra, of another case, the StottsWall decision tore up and destroyed, root and branch, all of the proceedings held for the construction of the seventeen miles of levee. We cannot escape the conviction that destroying or holding invalid the proceedings under which .the warrants were issued, destroyed, made void, warrants, and we so hold.

Furthermore, and as a reason why this action on these warrants cannot be maintained, it is to be remembered that there is no pretense that there is any fund at hand or at the disposition of defendant, arising from that previous tax levy. The only funds now available are the funds arising from the tax assessment and levy authorized by the meeting of July, 1900. Clearly, therefore, unless we are to overturn the decision of the Supreme Court in the Wall case, we cannot require these warrants to be paid out of any part of the tax levy authorized by the meeting of July 21, 1900, and to be used in payment of work thereafter to be done. To sustain a judgment here for plaintiff, we would in effect be doing that.

Whether the levee district is liable to pay for that part of the levee which was built under the authorization of 1893, by reason of acceptance of all of it, is not before us. This, unlike the Wilson case, is an action on these invalid warrants. Whether an action can be successfully- maintained for the work and labor done in the construction of this seventeen miles of levee (see Louisiana v. Wood, 102 U. S. 294), is not now before us. It is beyond question that these warrants, drawn in payment against the tax authorized by the district in July, 1900, cannot be paid out of the tax levee authorized under the action then taken and the resolution then adopted. None of that fund can be diverted to the payment of work before then done, nor can payment of these warrants, as warrants, be enforced against this district.

We think the learned trial court committed no error in refusing the .declaration of law asked for plaintiff and that its conclusion upon the facts in the casé, under the evidence in the case, is not only sustained by the evidence in the case but is a correct conclusion of the law under that evidence. The judgment of the circuit court is affirmed.

Norloni and Caulfield, JJ., concur.