Wilson v. King's Lake Drainage & Levee District

158 S.W. 931, 176 Mo. App. 470, 1913 Mo. App. LEXIS 36

Opinions

NORTON!, J.

This is a suit in equity and the question for decision arises alone on the face of' the bill. Defendant interposed a demurrer to plaintiff’s bill and the court sustained it. Prom this judgment so sustaining the demurrer, plaintiff prosecutes the appeal here. Omitting caption and signatures, the bill is as follows, however the italics employed therein are our own:

“Plaintiff states that at all the-times hereinafter mentioned the defendant was and yet is a body corporate duly incorporated as a drainage district under and by virtue of article five of chapter one hundred and twenty-two of the Revised Statutes of Missouri,' 1899, and by virtue of the proceedings in the county court of Lincoln county, Missouri, in a certain cause therein pending entitled—‘In the Matter of King’s Lake Drainage and Levee District,’ and by virtue of the certain findings, orders and judgments of said court in said cause duly made and entered of record therein on the 25th day of May, 1895-, and on the 29th day of November, 1904.

“Plaintiff further states that the lands embraced and included within and affected by said drainage district lie partly in Lincoln county and partly in Pike county, both in the State of Missouri, and that the greater part of said lands lie in the said county of Lincoln.

‘ ‘ That heretofore, to-wit, on the--day of--, 1894, there was filed in the office of the clerk of the county court of said Lincoln .county a petition duly signed by the majority of the owners of all the lands in said above mentioned district and by the owners of more than half of said lands, all of said petitioners and owners being adults of lawful age, praying and applying for the organization - of a drainage district embracing said lands by the said name of ‘King’s Lake Drainage and Levee District,’ and with the boundaries thereof proposed, setting forth said proposed name and the necessity for said district and the organization thereof,' and for the construction therein and thereby of drains, ditches, levees and other works, and the maintenance and keeping same in repair, with a description of its and their proposed starting point, route and termini, and a general description of the said lands, proposed to he affected thereby, with the names of the owners of all said lands, and praying and applying for the appointment of commissioners for the execution of such proposed work according to the provisions of the act aforesaid; and which said petition was accompanied by an affidavit giving the names and places of .residence of such of the owners of said lands within said district as were nonresidents of said counties of Lincoln and Pike so far as known, and so far as unknown stating that upon diligent inquiry their places of residence could not be ascertained.

“That thereupon the clerk of said county court of Lincoln county duly docketed said matter and cause on the docket and record of his said court for further proceedings therein under and by the name and title, ‘In the matter of the King’s Lake Drainage and Levee District,’ and that all the proceedings in said court hereinafter referred to were had and done in said matter and cause and under the name and title aforesaid, and that he caused due notice of the presentation and filing of said petition to be given in all the modes and within the time provided by law to all the owners of said lands and all others interested therein; which said notices contained a statement that said petition had been filed in said court, the date when same was filed, the starting point, route, termini and general description of the said proposed work, the boundaries of said proposed drainage district and the said name thereof, and that the petitioners would ask a hearing of said petition at the July term of said county court then next to be holden at the courthouse in the city of Troy in said county.

“That thereafterwards such proceedings were duly had in said county court, that, on to-wit, the 17th day of August, 1894, at and during a term and sitting of said court duly held in the courthouse in said city of Troy, the hearing of and upon said petition was duly had by and before court, and the said court, after hearing all competent evidence offered before it for and against said petition and the various matters involved in said proceeding, duly found and adjudged that said petition had been signed by a majority of the owners of all the lands in said district and by the owners of a majority of all said lands; and it further then and there appearing to the said court that the said proposed drains, ditches, levees and other works were necessary and would be useful for the drainage of the said lands proposed to be drained thereby for agricultural and sanitary purposes, the said court then and there duly so found, declared, ordered and adjudged; and thereupon by its further order and judgment in said proceeding said court appointed William J. Seaman and William H. Baskett of Lincoln county and Prank L. Wilson of Pike county as commissioners to lay out and construct said proposed works.

‘ ‘ That thereafterwards the said commissioners after having been duly qualified and having entered into bond according to law, duly conditioned, filed and approved, entered upon the duties of their said office and at their first meeting after their appointment and qualification duly appointed one of their number, viz., the said William H. Baskett, as secretary.

“That thereafterwards and -within the time as directed by said court the said commissioners went upon and duly examined the lands described in said petition proposed to he drained and protected and the lands over and upon which the said work was proposed to be constructed, and thereupon determined and reported to the said court by their written report duly made and filed therein on the 6th day of March, 1895, as follows: First, that the starting point, route and termini of said proposed work and the proposed location thereof were in all respects proper and feasible. Second, the probable cost of the said proposed work, including all incidental expenses and the costs of the proceedings therefor. Third, the probable cost. of keeping the same in repair after the work should be completed. Fourth, what lands, with a particular description thereof, would be injured by said work and the aggregate amount of such injuries, and awarding to each tract, lot, easement or interest, the amount of damages so determined by them. Fifth, what lands, with a particular description thereof, would be benefited by the construction of the said proposed work, and showing that the benefits exceeded the aggregate cost of constructing said work, including all incidental expenses, costs of proceeding and damages; and therein apportioned and assessed the estimated cost of the same on the said lands so benefited, setting down opposite to the correct description of each tract, lot, easement, interest of servitude, the proportion of such costs assessed as benefits thereon. Sixth, that the proposed district as set out in the said petition filed would not embrace all the lands that might be damaged or benefited by the proposed work, and setting forth and reporting what additional lands and a particular description thereof would be benefited or damaged and the amount of benefits and the amount of damages to each said tract of additional land, in the same manner as though such additional lands had been included in the said original petition. And the said commissioners reporting in their said report that the whole cost of such said proposed work would be less than the benefits resulting therefrom, they located, designed, laid out and planned same in the manner as to them seemed best designed to drain and protect the lands of all the parties interested with the least damage and greatest benefit to all the lands to be affected thereby, and had proper surveys, profiles, plans and specifications made for such proposed work and reported to the said court in their said report their conclusions thereon, with á copy of said surveys, pro files, plans and specifications and their recommendations as to the best and cheapest method of doing the said proposed work.

“That upon the filing of said report by said commissioners, the said county court, to-wit, on the 4th day of April, 1895', duly made and entered of record therein an order fixing the 16th day of May, 1895, as the time, and the courthouse in the city of Troy as the place, when and where all persons interested in said report or in the work referred to therein, might appear and contest the confirmation thereof. That thereupon the clerk of said court caused due notice of the said time and place of said hearing and of the amount of benefits and damages assessed and awarded by the said report of the said commissioners and containing a description of the lands affected, by publication thereof for three successive weeks prior to said day so set for such hearing in the ‘Lincoln County News,’ a newspaper published in said county, and also by duly serving a copy of such notice on each of the persons and corporations affected thereby who reside in either Lincoln or Pike county aforesaid, at least twenty days before the said day so fixed for said hearing.

“That thereupon such proceedings were duly had in and before said court that all objections, remonstrances and other questions and issues arising on said report and the assessment of benefits and award of damages made therein and all other matters jurisdictional and otherwise arising out of or concerning the proceedings in said court were duly heard, tried, considered and adjudged by and before said court; and the said court, to-wit,' on the 25th day of May, 1895, having duly found and adjudged that all the proceedings therein had been and were regular and valid, and after having duly modified said report of said commissioners so as to conform to said court’s findings, did, by its order and judgment duly given and entered and yet remaining of record therein, duly confirm said report, and ordered, adjudged, declared and decreed that said report should be effective, binding, final and conclusive, and that the said proposed work and the said drainage district be "authorized and established and the assessments of benefits made therefor approved and confirmed.

“That, upon the entering of record by said court of said order and judgment of confirmation of said report, said drainage district was by the further order and judgment of said court declared to be a body corporate by the name aforesaid. That thereupon immediately afterwards the said commissioners duly adopted a common seal for said corporate body and that said common seal has been and is the common seal of the defendant in this cause.

“Plaintiff further states that after the proceeding and judgment last aforesaid the said commissioners and their successors in office appointed and qualified in the manner provided by statute continued in their duties as such as the same were prescribed by law and by the orders of said court, and immediately proceeded with the building and construction of the said levees, drains, ditches and other work within said drainage district, at all times acting in that behalf for and as the duly constituted corporate authority thereof.

“ That, in the prosecution of the said work of construction, the said named commissioners, acting as aforesaid for and on the behalf of the said drainage district, on to-wit, the-day of--•, 1894, after due advertisement for sealed bids therefor by notice thereof duly published according to" law in a newspaper issued and published in said Lincoln county, duly let and awarded certain work of construction- of said levees, drains, ditches and other work to A. Y. Wills & Sons, they being the lowest responsible bidders therefor; and thereupon, to-wit, on the 21st day of October, 1895, entered into contract with said A. Y. Wills & Sons for the construction of said work so let and awarded to them including the twelve miles of levee hereinafter referred to.

“That thereafterwards, to-wit, on the--day of --, 1895, the said A. Y. Wills & Sons duly assigned and delivered said contract and all their rights and interests therein and thereunder to Thomas C. Wilson for a valuable consideration paid them by him therefor.

“Thereafterwards the said Thomas C. Wilson entered upon the construction of said work, including said twelve miles of levee, under and in pursuance of the terms and provisions of said contract, and from time to time during the progress thereof estimates of the work of such construction upon the said twelve miles of levee done by him were duly made by said commissioners and their successors in accordance with law and the terms of said contract; and for the work of construction so done upon said levee by him, said Wilson, the commissioners from time to time drew and delivered to him the certain treasury warrants of said drainage district for the various sums corresponding in amounts with the value of said work done upon said levee and according to the prices therefor fixed by said contract. That.is to say, that said warrants were, in form, an order drawn in writing, addressed to the treasurer of the board of commissioners of the King’s Lake Drainage and Levee District, signed by one of the said commissioners as president and attested by the secretary under the corporate seal of said drainage district, ordering and directing the payment to said Wilson out of the treasury and funds of said district the certain sums mentioned in said warrants respectively. And plaintiff says that the several warrants hereinafter more specifically set ont and described were issued and delivered to said Wilson in the manner and for the consideration of his said work of construction upon said twelve miles of levee as aforesaid, or were issued to the plaintiff, Henry W. Perkins, the assignee of said Wilson, in lieu and stead of other warrants previously and originally issued to said Wilson in the manner and for the consideraton . aforesaid; and that for each and every of the said warrants hereinafter more specifically set out and described, the said King’s Lake Drainage and Levee District, defendant herein, received full value in the work done by said Wilson in and about the construction of said levee in manner and form as is hereinafter more fully set out. That the said twelve miles of levee, for the construction of which the said warrants were issued and delivered as aforesaid, was constituted and embraced in the work authorized, ordered and directed by said county court both by its order and judgment of the 25th of May, 1895, aforesaid, confirming the said report of said first named commissioners, and by its other and further order and judgment duly made in said cause and proceedings on the 25th day of November, 1904, confirming the report of other commissioners duly appointed by said court in the manner' and for the reason hereinafter set out.

‘ ‘ Plaintiff further states that on the day set for the hearing of the said report of the said first named commissioners in and before said county court one W. ■ D. Jamison, the owner of certain lands within said district and affected by the proposed work, duly appeared in said court and objected to and remonstrated against said report, setting forth various causes for such objections and remonstrance duly verified by affidavit. Thereupon a time was by said court fixed for the hearing of said objection and at the time so fixed and upon due hearing and trial thereof said remon strance and objections were by tbe said court overruled and disallowed, and tbe said report of tbe said commissioners, as the same was modified by order of court, was duly confirmed as hereinbefore stated. That thereupon on due appeal to the Supreme Court of the State of Missouri by said Jamison from said order and judgment of said county court overruling his said remonstrance and objections and confirming said report, the Supreme Court afterwards, to-wit, on the 2d day of July, 1903, by its order and judgment in said cause, reversed the said judgment of said county court on the sole ground that said W. J. Seaman, one of said commissioners, was not a competent person to act in that behalf as such, in that he was interested in certain lands within the limits of said district or affected thereby, and thereupon remanded the cause back to the said county court with directions to take same up for hearing and trial upon the original petition filed therein and proceed with said cause without regard to anything that had been theretofore done therein. Said judgment of reversal and order remanding said cause will be found in the report thereof in volume 176, page 557, of the reports of cases determined in the Supreme Court of the State of Missouri.

“That upon the filing in said county court of the said mandate and directions of the Supreme Court, the said'county court proceeded in said matter and cause as by said mandate directed, and that such further proceedings were had therein that on, to-wit, the 13th day of November, 1903, the said petition for the establishment of said drainage district again came on to be heard and the said court then and there again duly found, declared and adjudged that the establishment of said drainage district in accordance with the prayer of said petition was necessary for the drainage and reclamation of the lands in said district for agricultural purposes, and thereupon, by its further order and judgment duly given and entered in said cause' and proceeding, appointed Jesse J. Shaw and the said W. H. Basket of Lincoln county and Harry Wells of Pike county, Mo., three competent householders and resident taxpayers of said counties, as commissioners to lay out and construct the propósed work in accordance' with the statutes in such cases made and provided in all respects as if and as though much of said work had not already been accomplished and done under and by virtue of the earlier proceedings in said cause, whereas in truth and in fact much of said work had been done under and by virtue of said earlier proceedings including the construction by said Thomas C. Wilson of said twelve miles of levee, all as herein-before fully set out.

“That thereafterwards said last named commissioners were duly qualified according to law and entered upon the discharge of their duties in that behalf and that they and their duly appointed and qualified successors in office have since been and are yet the duly appointed qualified and acting commissioners of the said King’s Lake Drainage and Levee District, defendant herein.

“That afterwards, to-wit, on the 9th day of August, 1904, the said last named commissioners, having fully performed their duties in the premises, duly filed in said court in said cause and proceeding their report setting out therein all the matters as required by law. Thereupon such further proceedings were duly had in said cause that on November 29, 1904,- said report of said commissioners came to be heard and for trial in and before said court, and the' same having been modified in accordance with the previous orders and directions of said court duly given and entered therein, was, by the finding, judgment and order of said court duly given and entered of record, in all-respects approved and confirmed and the said work established and authorized as set forth in said, report as modified and the assessments of benefits as made and shown in said report together with the various' credits allowed upon snch assessments as hereinafter more particularly shown, duly approved and confirmed and the said district duly adjudged and declared to be a drainage district by the name of ‘King’s Lake Drainage and Levee District,’ and to be a body corporate according to statute in such cases made and ■provided, by the name aforesaid.

“Plaintiff further states that in their said report, as the same was so aforesaid finally by said court approved and confirmed, the said commissioners found and reported that on the route of the levee as prayed for in said petition and as located hy them there was at the time an old levee extending the full distance of twelve miles which had theretofore been constructed and built by the former commissioners of said district and which said old levee the said commissioners further reported could, and would be, and had been, by themadopted, availed of and used as a part of the work committed to them to be done. And plaintiff says that said old levee so by said commissioners referred to, adopted, availed of and used., is the same levee built by said Wilson under and in pursuance of the said contract entered into with the commissioners of said levee district first appointed, all as is fully hereinbefore set out and declared.

“That upon the final confirmation of said report in and by said court as aforesaid, the said commissioners last appointed proceeded with the construction and thereafterwards completed .the levees, drains, ditches and other work proposed in said original petition and embraced and described in their said report, all as required by law and the various orders, judgments and directions of said county court duly made and entered in said cause and proceeding. That in the construction of said work said commissioners adopted, appropriated and used said old levee its entire length of twelve miles and made same a part of and Mcluded same in the works so by them to be done as such commissioners for and on the behalf of and as the corporate authority of the defendant King’s Lake Drainage and Levee District, which thereupon and thereby received, accepted and appropriated the same with all the advantages and value thereof; and further, that in pursuance of said report of said commissioners and of- the said order and judgment of said court confirming same, large credits were given and allowed to the various landowners in said district on their' assessments of benefits, for and on account of said twelve miles of levee so adopted, appropriated and used, thereby indirectly saving to the commissioners the full cost and expense originally incurred in the construction of said levee and for which the indebtedness herein declared on then existed and then and noto remains unpaid.

“Plaintiff says that the cost of said twelve miles of levee to the first or original commissioners of said district and their successors so appointed as aforesaid was the sum of $18,690.92, and that same was and is reasonably worth that sum; and that for the building of same the said first named commissioners or their successors were unable to pay in full, but that said district was, at the time of the appointment of said last named or present commissioners and is'yet, still largely indebted to plaintiff for the work of building the same; said indebtedness being evidenced by the treasury warrants hereinbefore referred to and then and now owned and held by plaintiff, all as aforesaid, and which said warrants are next hereinafter set forth filed and described as follows, to-wit:

“Plaintiff states that on the 22d day of May, 1896, one of said warrants, numbered 51, on the treasury of said King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit A,’ was, by the due resolution and order of the then acting board of commissioners of said district, duly drawn and signed by W. J. Seaman, president, and'by "W. H. Baskett, secretary, of said board and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the said T. C. Wilson or order ont of the said treasury and funds thereof on presentation of said warrant the sum of four thousand, four hundred and thirty-seven dollars and ten cents ($4437.10'), to bear interest from said date at the rate of six per centum per annum till paid. That afterwards, to-wit, on the day of the date thereof said warrant was duly presented to said treasurer for payment and payment thereof demanded by him, the said Wilson, but that same was not paid. That after-wards, to-wit, on the 5th day of December, 1896, the said T. C. Wilson for a valuable consideration duly assigned by endorsement thereon and delivered said warrant to the plaintiff. That plaintiff is still the legal holder and. owner thereof. That no part of same nor any of the interest accrued thereon has-ever been paid, but that the said amount thereof and all interests accrued thereon are yet due the plaintiff and remain wholly unpaid.

“That on the 14th day of December, 1897, another of said warrants, numbered 92, on the treasury of said. King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit B,’ was, by the due resolution of the then acting board of commissioners, duly drawn and signed by Prank L. Wilson as president and by W. H. Baskett, secretary of said board, and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the said T. C. Wilson or order out of the said treasury and the funds thereof on presentation of said warrant the sum of two hundred and ninety-one dollars and ten cents ($291,100, to bear interest from said date at the rate of six per centum per annum until paid. That afterwards, to-wit, on the day of the date thereof, said warrant was duly presented to said treasurer for payment and payment thereof demanded by him, the said Wilson, but that same was not paid. That after-wards, to-wit, on the 8th day of January, 1898, the' said T. C. Wilson for a valuable consideration assigned by endorsement thereon and delivered said wax*rant to plaintiff. That plaintiff is still the legal holder and owner thereof. That no part of same nor any of the interest accrued thereon has ever been paid, but that the said amount thereof and interest accrued thereon are yet due the plaintiff and remain wholly unpaid.

“That on the 4th day of February, 1901 another of said warrants, number 189, on the treasury of said King’s Lake Drainage and Levee District, herewith filed marked ‘Exhibit C,’ was, by the due resolution and order of the then acting board of commissioners of said district, being the successors in office of said first named board appointed and qualified as by statute provided, duly drawn and signed by C. C. Eastin as president and T- E. Goodman, secretary of said board and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the plaintiff, Henry W. Perkins, or order, out of the said treasury and the funds thereof, on presentaton of said warrant, the sum of two' hundred and seventy-nine dollars and seventy-nine cents, ($279.79), to bear interest from said date at the rate of six per centum per annum until paid. That after-wards, on the day of the date thereof, said warrant was duly presented to said treasurer by plaintiff and payment thereof demanded, but that same was not paid. That said warrant was by said board of commissioners and said president and secretary thereof drawn and delivered to plántiff in lieu and- stead of a previous warrant, numbered 155, theretofore by said first mentioned board and officers issued, delivered and made payable to said T. C. Wilson, or order, and which had been by him, the said Wilson, duly transferred by endorsement and delivered to plaintiff for value; and which said previously drawn warrant, numbered 155, was at the time held and owned by plaintiff and was by-him at-said time duly surrendered to said board and cancelled. That plaintiff is still the legal holder and owner of said warrant number 189. That no part of same nor any of the interest accrued thereon has ever been paid, but that the said amount thereof and interest -accrued thereon are yet due the plaintiff and remain wholly unpaid.

“That, on the 16th day of October, 1902, another of said warrants numbered 218, on the treasury of King’s Lake Drainage and Le\ree District, herewith filed and marked ‘Exhibit D,’ was, by the due resolution and order of said last mentioned board of commissioners, duly drawn and signed by C. C. Eastin as president and by T. R. Goodman, secretary of said board, and dated the day aforesaid, wherein and whereby the treasurer of said board was ordered and directed to pay to the plaintiff, Henry W. Perkins, or order, out of the said treasury and the funds 'thereof, on presentation of said warrant the sum of six hundred and sixty-four dollars and fifty-seven cents ($664.57), to bear interest from said date at the rate of six per centum per annum until paid. That after-wards, to-wit, on the day of the date thereof, said warrant was duly presented to said treasurer by the plaintiff and payment thereof demanded, but. that same was not paid. That the said warrant was by said board of commissioners and said president and secretary thereof drawn and delivered to plaintiff in lieu and stead of a previous warrant, numbered 23, theretofore by said first mentioned board and officers issued, delivered and made payable to said T. C. Wilson, or order, and which had been by him, the said Wilson, duly transferred by endorsement and delivered to plaintiff for value; and which said previously drawn warrant numbered 23 was at the time held and owned by tbe plaintiff and was by bim at said time duly surrendered to said board and cancelled. That plaintiff is still tbe legal bolder and owner of said warrant numbered 218. That no part of same nor any of tbe interest accrued tbereon bas ever been paid, but that said amount thereof and tbe interest accrued tbereon are yet due tbe plaintiff and remain wholly unpaid.

“Plaintiff further states that tbe said mentioned twelve miles of levee so constructed by said T. C. Wilson was contemplated and provided for in tbe original surveys, plats, profiles, plans and estimates made by tbe said first named commissioners and approved and confirmed by tbe said county court in its order duly made and entered in said proceedings on May 25, 1895, as aforesaid; and that at tbe time of entering into said contract for tbe construction of said work by said A. V. Wills & Sons, and at tbe time of the assignment of said contract to said T. C. Wilson, and at tbe time of tbe construction of all said work under said contract by said Wilson, including said twelve miles of said levee, and at tbe time of tbe drawing and tbe delivery to bim, said Wilson, of tbe said several original warrants upon tbe treasury of said district for and on account of said work of construction done, all as aforesaid, there remained unpaid on tbe assessments, of benefits made and confirmed by said court as aforesaid, against tbe lands within said district, an amount largely in excess of tbe sums for which said warrants were drawn.

“And plaintiff further states that the' said twelve miles of levee was also contemplated and provided for in tbe surveys, plats, profiles, plans and estimates so-made by tbe last appointed commissioners, and so confirmed by said county.court by its order of date November 29, 1904, as aforesaid, and that tbe amount of tbe assessments of benefits made by said commissioners, and on said date confirmed by tbe said court, was adequate and sufficient to pay tbe amount remaining due and unpaid for the construction of said twelve miles of levee and evidenced by said warrants and other like warrants, if the whole amount of said assessments had been, as of right and good conscience they should have been, demanded by and paid-to said commissioners in cash.

“Plaintiff says that the defendant King’s Lake Drainage and Levee District is a continuation of and is one and the same corporate body as the King’s Lake Drainage and Levee District under contract with and for which the said Thomas C. Wilson constructed the said twelve miles of said levee and which, by its said first mentioned board of commissioners in consideration thereof, executed to him the said warrants as hereinbefore set out. That by accepting, adopting, appropriating and using the said twelve miles of said levee so constructed as aforesaid, and making same a part of the work necessary to be done in protecting and reclaiming the lands within said district, the defendant is, and in equity and good conscience should be, adjudged to be held to have ratified and confirmed the acts of the said William J. Seaman, William IT. Baskett and Prank L. Wilson the first named board of commissioners and their successors in office as aforesaid in constructing same and in the incurring of said indebtedness to said Wilson therefor so evidenced by said warrants now held and owned by plaintiff as aforesaid. And that in equity and good conscience the defendant is and ought to be held and adjudged to be liable to the plaintiff for the amount of said warrants and the interest accrued thereon. And that the defendant and its present corporate authority are, and by reason of the premises ought to be held and adjudged to be, estopped and precluded from denying such liability. That plaintiff is without remedy, recourse or redress “on said warrants or for the value of said work for which samé were issued, or otherwise, in the premises, against said dis trict or the lands embraced and included therein or the owners thereof, except through or against the now legally constituted corporate body thereof, to-wit, the defendant herein. And that by reason of the premsies an action hath accrued to the plaintiff to demand and recover against the defendant the sum of five thousand, six hundred and seventy-two dollars and fifty-six cents ($5672.56), the amount of the principal sum of said warrants numbered 51, 92., 189, and 218, and also lawful interest on the said several sums mentioned in said warrants respectively from their respective dates as aforesaid.

“Wherefore, premises considered, plaintiff prays judgment against the defendant for the said sum of five thousand, six hundred and seventy-two dollars and fifty-six cents ($5672.56), the amount of said indebtedness so evidenced by said warrants with six per cent interest per annum on the respective sums mentioned in said warrants, respectively, from the said dates thereof respectively. And that plaintiff have such other, further and general or special relief in the premises as 'equity may require and as to the court shall seem meet.”

We find ourselves unable to agree with the presiding judge in the opinion prepared and tendered by him. A majority of the court are of the opinion that the bill states a cause of action..

There can be no doubt that the prior drainage district, with which Wilson contracted- and for whom he performed the services in constructing the twelve miles of levee, was a corporation de facto. The judgment of the county court erecting that corporation certainly did not reveal it to be void on its face. It finally failed as an entity because of the fact that Seaman’s wife owned land situated in the district, as wi]l appear by reference to the decision of the Supreme Court overturning it. [See King’s Lake Drainage Dist v. Jamison, 176 Mo. 557, 75 S. W. 679.]

It lias been said the judgment of the Supreme Court in that case “cut up the prior drainage and levee district root and branch.” [See Wilson v. King’s Lake Drainage & Levee Dist., 237 Mo. 39, 139 S. W. 136.] It is no doubt true that the ostensible corporate entity there involved fell to the ground, but it seems the root remained, under the express ruling of the Supreme Court to that effect. By the judgment of the Supreme Court overturning the prior corporation, the right was reserved to the petitioners to proceed and incorporate the same territory and the same inhabitants under the same statutes, and thus become clothed with the same franchises, to the same ends, on the same petition, which afforded the basis for the prior incorporation. Touching this matter, the Supreme Court said, “The judgment of the circuit court must therefore be affirmed, and the cause remanded to the county court of Lincoln county, to be by it taken up and tried as if the original petition was presented to it for the first time, and to proceed with the cause without regard to anything that has heretofore been done in the cause but in conformity herewith and with the statute.” [See King’s Lake Drainage Dist. v. Jamison, 176 Mo. 557, 579, 75 S. W. 679.] Therefore, though the corporate entity went out of existence and its branches fell, by virtue of the judgment of the Supreme Court, the “root” remained, and it appears from the facts set forth in the bill that the present defendant corporation springs forth from the “root” mentioned—that is, the identical petition upon which the former corporation de facto at least came into existence.

It therefore sufficiently appears from the averments of the. bill that the defendant corporation was organized for the same purposes, to serve the same lands and the same inhabitants, under the same statutes, as the prior one. This being true, the franchises thus gathered together for utilization through the corporate entity are to be regarded as tbe same and identical franchises theretofore involved, and snch alone is the substance of corporate existence. [See Winkelman v. Levee Dist., 171 Mo. App. 49, 153 S. W. 539.] The present defendant, or new corporation, should therefore be regarded as a continuation of the prior or old one to which the services were rendered in constructing the twelve miles of levee described in the bill. From other averments of the bill, it appears that the present defendant took over the levee constructed by its predecessor as a part of the levee which it was organized to construct. “ The averments of the bill are pointed and direct to the effect that the old levee was incorporated into and forms a part of the new one built by defendant. The demurrer admits the fact so alleged to be true, and it is obvious, therefrom that the new corporation received the benefits of Wilson’s labor in constructing the levee for the prior company. In snch circumstances, the obligation to compensate for the benefits thus received is cast upon defendant, even though the original corporation was one de facto only.

Both the prior drainage district and the present defendant were municipal corporations under our law as is well settled by the Supreme Court decisions. [See Wilson v. Drainage Dist., 237 Mo. 39, 139 S. W. 136; see also Winkelman v. Levee Dist., 171 Mo. App. 49, 153 S. W. 539; Morrison v. Morey, 146 Mo. 543, 560, 561, 48 S. W. 629.] It is certainly the established rule of decision that municipal corporations do not extinguish their debts by merely changing their names or reorganizing under new charters, and especially is this true in those cases where a new corporation succeeds an old one to conserve the same purposes for the same inhabitants and pertaining to the same territory through utilizing franchises to the same end as its predecessor. [See Hill v. City of Kahoka, 35 Fed. 32.] Touching this question, Judge Dillon says, in his splendid work on Municipal Corporations (4 Ed., sec. 170; see, also, 5 Ed., sec. 336): “An absolute repeal of a municipal charter is .therefore effectual so far as it abolishes the old corporate organization; but where the same ox substantially the same inhabitants are erected into a new corporation, whether with extended or restricted territorial limits, such new corporation is treated in law as the successor of the old, entitled to its property rights and subject to ifs liabilities.”- [See, also, sections 171, 172, 173, Dillon, Municipal Corpprations (4 Ed.), or sections 337, 338, 339 (5 Ed.) and numerous cases in notes.]

On the same question the Supreme Court of the United States says, in' Broughton v. Pensacola, 93 U. S. 266, 270: “When, therefore, a new form is given to an old municipal corporation, or such a corporation is reorganized under a new charter, taking in its new organization the place of the old one, embracing substantially the same corporators and the same territory, it will be presumed that the Legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers administer its affairs ; and in the absence of express provision for their payment otherwise, it will also be presumed in such case that the Legislature intended that the liabilities as well as the rights of property of the corporation in its old form should accompany the corporation in its reorganization.” [See, also, Mobile v. Watson, 116 U. S. 289; Dillon, Municipal Corporations, supra; Amy & Co. v. Selma, 77 Ala. 103. For the general principle, see, also, Thompson v. Abbott, 61 Mo. 176; Hughes v. School Dist., 72 Mo. 643.]

The facts set forth in the bill sufficiently reveal that the present defendant is merely a continuation of the former corporation, as we understand the rule with respect to such matters. There can be no doubt that both corporations were erected under the statute for the purpose of building levees and ditches to conserve the land and the interests of the inhabitants interested in the territory defined. Indeed, the bill expressly sets forth that the new corporation, the present defendant, appropriated the twelve miles of levee theretofore built under the auspices of the former de facto corporation into the levee which it was organized to build. Furthermore, that the commissioners serving the present defendant reported that such levee was then standing and the corporation adopted their re-report and ran an assessment upon the lands to compensate for such old levee so appropriated as a parcel of the new one then about to be built. After such assessment was so run upon the lands, the bill avers it was in part remitted and credited to the landowners themselves. Thus they were relieved from the payment therefor, thought the benefits were expressly accepted by the inhabitants of the district. This being true, it would seem that the plaintiff’s equities are abundant and that the cause loudly calls for the consideration of a court of equity. It is obvious where it appears, as here, the inhabitants owning land in the* district included within the present incorporation have received all of the benefits of Wilson’s labor, that they should compensate therefor rather than permit him to lose the reasonable value of his performance. It is to be observed the suit does not proceed on the warrants set forth in the bill, but rather declares on the implied promise to compensate the reasonable value of the benefits received. This course is obviously a proper one, for, though the warrants are invalid, the obligation to compensate for the work still subsists. [Louisiana v. Wood, 102 U. S. 294.]

Moreover, though the prior drainage district were not a corporation either de jure or de facto, it would seem that defendant should pay for the benefits thus received, which inured to the lands and inhabitants its charter was issued to conserve. No one can doubt that defendant, as an incorporated drainage and levee district under our statute, possesses the power to construct a levee, and it would seem that, if it utilized a portion of an old one in the construction of the new, such would be moving along the lines of the very power conferred. The statutes constituting the charter of defendant and affording it power to act in that behalf are comprehensive, indeed, with respect to the matter of conferring’ powers in and about the performance of the duties which the charter casts upon it. Moreover, the Legislature has seen fit to incorporate as one of the sections of the statute concerning such levee districts, the positive command to liberally construe the charter provisions in aid of the end sought to be attained by the corporation. The statute referred to is as follows:

“The provisions of this article shall be liberally construed to promote the drainage and reclamation of wet and overflowed lands within this State, the building of necessary embankments or levees, and the preservation of any system of drainage heretofore constructed under any law of this State. ’ ’ [Sec. 5573, B„ S. 1909.]

Furthermore, our Supreme Court has but recently declared that “Laws .relating to drainage and protection of overflow land should not receive the same narrow and restricted construction that courts give to laws governing the assessment and collection of the revenue.” [See State ex rel. McWilliams v. Bates, 235 Mo. 262, 138 S. W. 482.] When the charter powers of defendant are thus considered with a liberal view to effectuate the end designed, it appears to be clear enough that defendant acted within the power conferred upon it when it incorporated the twelve miles of levee, theretofore constructed under the- auspices of its predecessor, into the new levee constructed by it. Therefore, though it be true that the mere matters of detail pertaining to employing the old levee were not complied with in every respect, defendant is estopped from denying the validity of plaintiff’s claim, if it acted within the power conferred upon it in incorporating the old levee into the new. While an estoppel may not he invoked against a municipal corporation, which acts entirely heyond the scope of the power conferred upon it, this doctrine does not obtain as to-such matters as fall within the powers conferred. Where a municipal corporation enters into a contract or becomes obligated to another by operation of law, within the powers conferred upon it thereabout, the doctrine of estoppel obtains against it with the same force and effect as against individuals. The point has been expressly decided by the ’Supreme Court in numerous cases, but for the present see Union Depot Co. v. St. Louis, 76 Mo. 393. [See, also, s. c., 8 Mo. App. 412; Edwards v. City of Kirkwood, 147 Mo. App. 599, 127 S. W. 378.] For an application of the same doctrine in the case of a county which had contracted within its powers but had defectively executed the power conferred, see Simpson v. Stoddard County, 173 Mo. 421, 463, 464, 465, 466, 73 S, W. 700. For a general review of the doctrine touching private cor-, porations, see Bank v. Lyons, 220 Mo. 538, 119 S. W. 540. It seems entirely clear that defendant, having-acted within its power in using the old levee and incorporating it into a new one, is estopped from denying reasonable compensation for the value of the services rendered by those constructing it and who have not been compensated.

From a careful reading of the bill, we find no facts averred therein to the effect that a portion of the account for services in constructing the levee other and distinct from that declared upon here, is outstanding in the hands of other parties. There is nothing in the bill that we have been able to discover which reveals a splitting of demands or that the plaintiff here sues. for only a portion of the amount due for building the levee. Though it be true that the warrants here described in the bill and others were issued, it may be true as well, for aught that appears, that all of that indebtedness has been paid save that now sued for. This being true, of course, the question of splitting of demands is not in the case.

Neither do we see anything in the bill to the effect that Wilson performed all of the labor in building the levee while the appeal in tbe case of King’s Lake Drainage Dist. v. Jamison, 176 Mo. 557, 75 S. W. 679, was pending in the Supreme Court and therefore precluded his right in equity. Indeed, it appears the warrants described in the bill were issued at different times from 1896 until the 16th day of October, 1902, but the case was not decided in the Supreme Court until July 2, 1903. It may be, for aught that appears in the bill, that the work was all performed before the appeal was perfected. But we regard this as wholly immaterial in any view of the case, for Wilson was not a party to the suit, but, on the contrary, was a third party under contract with the corporate entity, which appeared, on the face of the judgment of the county court creating it, to be a valid and subsisting corporation possessing full authority to employ him to construct the levee. Obviously the prior drainage district with which he contracted was a corporation de facto at the time and he was authorized to deal with it as such. [Hill v. Kahoka, 35 Fed. 32.] By continuing to execute the contract to which he had become obligated before the appeal was perfected, he forfeited no rights and certainly should not be condemned as without equity. Other points made are overruled.

The judgment should, therefore, be reversed and the cause remanded.

The presiding judge deems the conclusion here reached to be in' conflict with the decision of the Su preme Court in Johnson v. School District, 67 Mo. 319 and Seaman v. Levee District, 219 Mo. 1, 117 S. W. 1084 and, therefore, requests the cause be certified to the Supreme Court for final determination. It is so ordered.

Allen, J,, concurs. Reynolds, P. J., dissents.