Opinion
September 3, 1930.
1. APPELLATE JURISDICTION: Political Subdivision: Municipal Township. A municipal township is a political subdivision of the State, and this court has jurisdiction of an appeal from a judgment of the circuit court requiring such a township to pay certain delinquent drainage taxes.
2. DRAINAGE DISTRICT: Highways: Description and Ownership. In a proceeding to organize a drainage district under the Circuit Court Drainage District Act of 1913 it was not necessary or proper that a public highway or the owner thereof be described either in the articles of association, or in the notice of the proceedings or in the judgment creating the district.
3. ____: ____: Description of Adjoining Owners. If all lands adjoining the highway were described in the articles of association, in the notices and in the decree creating the district opposite the names of the owners of the lands, without excluding therefrom any of the lands over which the highway ran, the highway and the ownership of the freehold estate therein were thereby described.
4. DRAINAGE DISTRICT: Highways: Extension: Delinquent Taxes: Collateral Attack. If the circuit court rendered a decree extending the boundary lines of a drainage district, and the record of such proceedings is not offered in evidence, it must be assumed that all jurisdictional requirements of the statute pertaining to the extension were complied with, in a suit against a municipal township within a district to collect delinquent drainage taxes assessed against the public highways therein, since a denial of such jurisdictional fact is in the nature of a collateral attack on the sufficiency of the decree.
5. ____: Extension: Highways: Description: Notice. Where the report of the commissioners, appointed in pursuance of the application to extend the boundary lines of a drainage district, contained a detailed description of all highways in the defendant townships, sued for delinquent taxes assessed against said highways, and the notice of the filing of such report, addressed to all persons interested in the lands, so described the lands as to include the rights of way of all highways, and the decree approving the report described said highways, as such, and assessed them with benefits, naming the county as the owner thereof, the law requiring said highways to be described as such, in order to be assessed with benefits, and their ownership to be designated, was complied with.
6. ____: ____: Benefits: Assessed against Township: Day in Court: County as Owner. Where the report of the commissioners, appointed to assess benefits and damages in a proceeding to extend the boundaries of a drainage district, shows that the county, under township organization, was named as the owner of the public highways, and the final decree shows that the county appeared in response to notice of the filing of the report, filed objections, was heard and allowed a reduction in the benefits assessed, the townships, sued for delinquent drainage taxes assessed by the board of supervisors against such highways, are in no position to assert that they have never been accorded a hearing on the question of benefits to the highways and have never had their day in court. It was not a constitutional necessity that either the county or the townships be made a party to or have notice of the proceedings to assess benefits to the highways. Neither was the owner of the freehold estate in the highways.
7. ____: Highways: Ownership: Assessment to County. A township, in a county under township organization, is not the owner of public highways in the township. The county is entrusted with the public right, title and interest in public highways. In an action by a drainage district against a municipal township on tax bills for delinquent drainage taxes assessed by the district against public highways located in the township, the township cannot escape payment on the ground that the benefits, at the organization of the district, were assessed against the county as the owner of the highways. The county, in such case, was designated as the owner of the highway only in the sense that it was the conservator of the public's interest therein.
8. ____: Taxes: Assessment to Owner. The Circuit Court Drainage District Act does not require that drainage taxes be assessed to and levied against the owner of the land benefited. On the contrary (Sec. 4394, R.S. 1919) it requires the drainage tax to "be apportioned to and levied on each tract of land or other property in said district in proportion to the benefit assessed."
9. DRAINAGE TAXES: Suit Against Township: Former Suit Against County: Estoppel. A drainage district is not estopped to sue a township for delinquent drainage taxes assessed against public highways therein, by the fact that it had previously assessed said taxes against the county, and upon the refusal of the county to pay them filed suit therefor against the county. The fact that the district sued the wrong party did not prevent it from dismissing the suit and suing the right party, and the township was not misled to its injury, or induced to change its position to its detriment, by the fact that it was not sued.
10. ____: Limitations: Six Months. A suit for drainage taxes is not barred because not brought within six months after the taxes became delinquent.
11. ____: Penalty. If the drainage tax was legal and legally assessed, the fact that the name of the taxpayer did not appear in the tax bills for the year the taxes were due, that no demand was made upon him to pay the tax, and that he did not suppose it was assessed to him, will not justify the court in remitting the penalty prescribed by a statute clearly imposing a penalty for delinquency in payment.
12. ____: Attorney's Fee: At Subsequent Term: Discretion. Where the suit for delinquent drainage taxes was heard and argued at one term, and continued to the next term at the request of the defendants in order that they might prepare and present declarations of law, the court did not abuse its discretion in hearing evidence at such next term as to the reasonable value of the services of plaintiff's attorneys or in allowing them a reasonable fee as a part of the judgment then rendered.
13. ____: Assessment of Benefit to County: Suit Against Township. An action by a drainage district against a municipal township for delinquent drainage taxes assessed by the district against public highways cannot be defeated on the ground that in the assessment of benefits and damages the county was named as the owner of the highway. If any one can be said to own a public highway, aside from the abutting fee-holder, it is the county, and an assessment of benefits against the county meets the jurisdictional requirements of the drainage statute.
14. ____: ____: ____: State Agency: Notice. Counties and townships are but agencies of the State, and a drainage tax assessed against a public highway is a tax against a public or state improvement, and being such no special notice to such agencies that drainage taxes have been assessed against them is required as a precedent requisite to a suit by the drainage district against a municipal township to collect drainage taxes assessed against public highways, because such a suit is in reality instituted by the State.
15. ____: ____: Knowledge. A township cannot be heard to say that it did not have knowledge of an assessment of drainage taxes against the highways therein, where the report of the commissioners appointed to assess benefits and damages described the highways, named the county as the owner, and assessed benefits against them, and the notice of the filing of the report and the decree approving the report contained recitals of all these things.
16. ____: State Highway. It cannot be held that a part of the highways against which drainage taxes have been assessed was maintained by the State Highway Commission unless records of the Commission so showing are produced or offered in evidence.
Appeal from Saline Circuit Court. — Hon. Robert M. Reynolds, Judge.
AFFIRMED.
W.A. Kitchen for appellants; Henry Depping of counsel.
(1) The district is without power to levy any taxes against the highways in the defendant townships, because: (a) The townships were not made parties to the proceedings to create the district, nor were they named in the articles of association as the owners of any lands or other property in said district as required by Sec. 4378, R.S. 1919. This requirement is mandatory and jurisdictional. 19 C.J. 640; North Kansas City Levee District v. Hillside Securities Co., 268 Mo. 654; Elsberry Drainage District v. Harris. 267 Mo. 148; Nishnabotna Drainage District v. Campbell, 154 Mo. 151; Young v. Wells, 97 Ind. 410; Zumbro v. Parnin, 141 Ind. 430; Vizzard v. Taylor, 97 Ind. 90; Troyer v. Dyar, 102 Ind. 396; American Steel Drainage Works v. Putnam, 170 Ind. 571. (b) The highways were not described in the articles of association to create the district as required by Sec. 4378, R.S. 1919. This requirement is mandatory and jurisdictional. 19 C.J. 641; Hillside Securities case. 268 Mo. 654; State v. Burrough, 174 Mo. 700; Boatman v. Macy, 82 Ind. 491; Young v. Wells, 97 Ind. 410. (c) The townships were given no notice of the proceedings to create the drainage district, as required by law. Notice as required by Sec. 4379, R.S. 1919, is jurisdictional. 19 C.J. 648, 650; 9 R.C.L. 637; Ann. Cases. 1915C. 17; 3 Cooley on Taxation (4 Ed.), 2264; St. Louis v. Ranken, 96 Mo. 497; Embree v. Road District, 257 Mo. 613; State v. Arcadia Timber Co., 178 S.W. 95; Drainage District v. Arcadia Timber Co., 315 Mo. 597; Road Co. v. Flack, 105 Ind. 37; Brosemer v. Kelsey, 106 Ind. 504; Comrs. of Highways v. Drainage District, 127 Ill. 581. (d) The townships have in no manner been summoned into court, have been accorded no hearing on the question of benefits to the highways and have never had their day in court. To deny them these rights would deprive them of their property without due process of law. 19 C.J. 727; 6 R.C.L. 444, 446; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 963; Grannis v. Ordean, 234 U.S. 394, 58 L.Ed. 1369; Hillside Securities case. 268 Mo. 654; Elsberry Drainage District v. Harris, 267 Mo. 139; Mound City Land Stock Co. v. Miller, 170 Mo. 259; Young v. Wells, supra; Zumbro v. Parnin, supra. (2) The assessments in these cases, having been made in the name of Carroll County, are void because made in the name of one not the owner of the property assessed. Such an assessment is fatally defective and void. 19 C.J. 757; 3 Cooley on Taxation (4 Ed.), 2216; Abbott v. Lindenbower, 42 Mo. 162; Hume v. Wainscott, 46 Mo. 145; St. Louis v. Ranken, 96 Mo. 497; Blevins v. Smith, 104 Mo. 590; Sedalia v. Gallie, 49 Mo. App. 396; State v. Hamilton, 293 S.W. 379; Vizzard v. Taylor, 97 Ind. 90; Young v. Wells, 97 Ind. 410; Troyer v. Dyar, 102 Ind. 396. (3) The plaintiff is estopped to claim of these defendants the taxes, penalties and attorneys' fees herein sued for, 21 C.J. 1202; 10 R.C.L. 696; Wyatt v. White, 192 Mo. App. 559; Randolph v. Hunting Fishing Club, 15 S.W.2d 834; Western Clay Drainage District v. Wynn, 18 S.W.2d 1035; Levee Inspectors v. Land Timber Co., 112 Ark. 467, 166 S.W. 589. (4) The district is barred from recovering in these cases by reason of limitation. Sec. 4400, R.S. 1919; 19 C.J. 755; Bartlett v. McAllister, 289 S.W. 817; Bowersock Mills Power Co. v. Trust Co., 298 S.W. 1050. (5) The court erred in rendering judgment for penalties. 21 C.J. 193; 37 Cyc. 1544, 1545; Dorroh case, 289 S.W. 925; St. Joseph v. Forsee, 110 Mo. App. 237. (6) Judgment for attorneys' fees was improper because not based on any legal evidence. Crosby v. Evans, 281 Mo. 202; Buck v. Buck, 267 Mo. 644. (7) The demurrers to the evidence offered by defendants at the close of plaintiff's case and at the close of all the evidence, should have been sustained, because: (a) Plaintiff did not prove a valid and legal assessment against the defendants. 19 C.J. 757; State v. Arcadia Timber Co., 178 S.W. (Mo.) 93; Brosemer v. Kelsey, 106 Ind. 504. (b) If plaintiff made a prima-facie case by offering in evidence the tax bills and the drainage tax book, it was completely overturned when defendants showed that the tax bills are not based on a valid assessment. 19 C.J. 757; Hillside Securities case, 268 Mo. 654; State v. Bank, 160 Mo. 648; State v. Cunningham, 153 Mo. 642. (c) Plaintiff's evidence is insufficient because there is no proof of any demand as required by statute, Sec. 4396, R.S. 1919; 19 C.J. 755; Bate v. Sheets, 50 Ind. 329; Murphy v. Clinton, 182 Mass. 198. (8) The petition is fatally defective and the evidence is insufficient because there is no allegation or proof that the townships had knowledge of the assessments against the highways. Troyer v. Dyar, 102 Ind. 396. (9) The court erred in refusing to permit defendants to show that a portion of the taxes and penalties sued for were assessed against highways owned and controlled by the State Highway Commission. Harrison County case, 297 S.W. 1, 317 Mo. 933; Bates County case, 269 Mo. 78.
S.J. G.C. Jones and Franken Timmons for respondents.
(1) Plaintiff made a prima-facie case by the introduction of the tax bills and drainage tax books for the year for which the taxes were delinquent. Sec. 4400, R.S. 1919; State ex rel. Kersey v. Sims (Mo. App.), 286 S.W. 835; North Kansas City Levee District v. Hillside Securities Co., 268 Mo. 654. (2) Plaintiff having made a prima-facie case, defendants had the burden of proving that the proceedings organizing the drainage district, reorganizing same, extending its boundary lines, and assessing benefits and damages were void as affecting the public highways in the defendant townships assessed with drainage benefits. The defendants are making a collateral attack upon the proceedings, and are required to prove that they are void as affecting the highways. 19 C.J. 758, sec. 288; State ex rel. McBride v. Sheetz, 279 Mo. 437; State ex rel. v. Blair, 245 Mo. 687; State ex rel. v. Mining Co., 262 Mo. 503; Norborne Land Drainage District Co. v. Stratton (Mo. App.), 260 S.W. 509; State ex inf. McAllister v. Albany Drainage District, 290 Mo. 62; Barnes v. Mo. Valley Construction Co., 257 Mo. 175. (3) The Norborne Drainage District was originally incorporated by decree of the Circuit Court of Carroll County, on May 12, 1899, under the provisions of Secs. 6517-6529, R.S. 1889. This law is the same as Secs. 8251-8264, R.S. 1899, except minor amendments not here material. Under this act, there is no provision for the assessment of benefits against public highways, Neither is there any provisions defining the word "owner" as used in said act. The articles of association, therefore, for the original incorporation of the district, did not and could not describe public highways as such, neither were public highways described as such in the decree originally incorporating the district. The district was re-organized under the Circuit Court Act of 1913, Laws 1913, Laws 1913, pages 232 to 267, inclusive, and the articles for re-incorporation under Section 53 of said act are required to describe the lands and property in the district as described in the decree incorporating the district and to name the owners thereof as appear in the then record of the district. No highways being described as such in the original incorporation, and consequently no owners of highways named therein, the articles of re-incorporation could not describe highways as such nor name any owners, even if such were necessary, and the decree re-incorporating the district could, of course, be no broader than the petition. By the law under which plaintiff district was incorporated and re-incorporated, it was therefore not required to describe the public highways as such in the district and since same were not required to be described no owner could be named. Furthermore, the benefits on which the tax levies involved herein were made were under the decree of December 23, 1919, extending the boundaries of the district. Art. 3, Chap. 122, R.S. 1899, Secs. 8251-8264; Laws 1913, Secs. 53, 54, 55, pp. 263, 264. (4) Even though plaintiff drainage district had been originally incorporated under the Circuit Court Drainage Act of 1913 which authorizes public highways to be assessed with benefits, it would not have been necessary to describe the public highways as such and consequently not necessary to name any owners of the highways, if it could be said that public highways can be owned. This for the reason that under Sec. 39 of the Act of 1913, pp. 253, 254, Laws 1913, which is the same as Sec. 4415, R.S. 1919, the word "owner" as used in the act means "the owner of the freehold estate, as appears by the deed record." Consequently, had the district been incorporated under said Act of 1913 which requires the names of the owners of land or other property in the district, together with a description of the lands and other property owned by each to be set out in the articles of association, it would not have been necessary to describe the public highways as such and therefore to name any owners thereof. Had the district been incorporated under said act, it would have been necessary to describe only the freehold estate in the lands and give the ownership thereof as appeared by the deed record in Carroll County. It is admitted in these suits that the real estate over which the highways run are described in the proceedings. Sec. 4415, R.S. 1919; In Re Birmingham Drainage District, 266 Mo. 69; State ex rel. Scott v. Trimble, 308 Mo. 134; Gossett-Warner Drainage District v. Griswold (Mo. App.), 16 S.W.2d 697; State ex rel. Curtis v. Pound, 34 S.D. 628, 150 N.W. 287. (5) The petition for extension of boundaries being required to contain a prayer that all of the lands and property within the boundary lines is sought to be included within the district, and the notice being required to follow the petition in this regard and set out the prayer thereof, the decree extending the boundary lines of the district of August 12, 1918, included the public highways within the district because they were located within the boundary lines of the district as defined in the decree. State ex inf. McAllister v. Norborne Land Drainage District Co., 290 Mo. 129; Norborne Land Drainage District v. Stratton (Mo. App.), 260 S.W. 512; State ex rel. v. Wilson, 216 Mo. 215; State ex rel. v. Mining Co., 262 Mo. 490; Sick v. Wilkinson, 305 Mo. 328. (6) In this State the owner of the lands over which a public highway runs is the owner of the fee. If the highway runs entirely over land owned by him, he, of course, owns the fee to all the highway, and if a public highway runs between his land and that of an adjoining owner, each owns the fee to the middle of the highway. Neil v. Independent Realty Co., 317 Mo. 1245; Grant v. Moon, 128 Mo. 43; Snoddy v. Bolen, 122 Mo. 479; Ferrenbach v. Turner, 86 Mo. 416; Cartwright v. Liberty Telephone Co., 205 Mo. 133. When the lands within plaintiff drainage district were described, as it is admitted they were described in all proceedings, this description necessarily included the public highways. Therefore, when the lands were described the public highways were included within the description. Furthermore, public highways are not owned by either the county or the township, but the county holds an easement for the use of the public. Drainage District v. Bates County, 269 Mo. 78; State ex rel. v. Drainage District, 269 Mo. 457. (7) Under the provisions of Sec. 10627, R.S. 1919, all relinquishment of rights of way for public highways in the county are made to the county and are required to be filed in the office of the County Clerk and in the office of Recorder of Deeds. It was not shown by defendants in this case that any relinquishment of rights of way to public highways in defendant townships within the drainage district were so filed. There is no showing, therefore, that the county appeared by the deed records to own the easement in the rights of way for these public highways, nor was the duration of the easement shown. In counties under township organization, the county alone opens public highways and take relinquishments to rights of way and the townships have no such jurisdiction. Seafield v. Bohne, 169 Mo. 546. Even under defendants' theory, the townships are not the owners of the easement in the public highways, nor has this court so held. The decision of this court in Drainage District v. Trail Creek Township, 317 Mo. 933, that townships in counties under township organization must pay the benefits assessed against public highways therein is based squarely upon the ground that "benefits should be paid for by the party whose duty it is to keep up the public improvement," and since townships are required to maintain the highways they should pay the drainage taxes assessed against them. Drainage District v. Trail Creek Township, 317 Mo. 951. Not only are the townships not "owners" within the definition contained in Sec. 4415, R.S. 1919, of "any freehold estate appearing by the deed records," but they are not the owners of the easement at all. Their duty to pay the drainage assessments against the public highways as an agency of the State is solely because it is their duty to maintain such highways, as the drainage statute provides that the public highways shall be assessed with benefits according to their increased efficiency and decreased cost of maintenance of roadways by reason of the improvements of the district. (8) The notice of the filing of the report of commissioners was in the form required by Sec. 4391, R.S. 1919, and is sufficient. The proceeding is in rem. State ex rel. Scott v. Trimble, 308 Mo. 135; Troeger v. Roberts, 284 Mo. 363; Barnes v. Construction Co., 257 Mo. 175; State ex rel. Coleman v. Blair, 245 Mo. 680; Drainage District v. Bates County, 216 S.W. 953. (9) The provisions of the Circuit Court Drainage Act relative to notice to the taxpayer and demand for the payment of taxes are directory merely and failure to follow them will not prevent the collection of the taxes by suit. St. Francis Levee District v. Dorroh, 316 Mo. 404; State ex rel. v. Wilson, 216 Mo. 287; State ex rel. McBride v. Sheetz, 279 Mo. 429; Sec. 12969, R.S. 1919. (10) The suits for drainage taxes were brought within five years after same were delinquent and were not barred under the provisions of Section 4400, R.S. 1919. Drainage District v. Bates County, 269 Mo. 91; St. Francis Levee District v. Areadia Timber Co., 215 Mo. App. 368, 253 S.W. 1078; State ex rel. v. Keithley, 204 S.W. 24; State ex rel. v. Coleman, 274 S.W. 1108; Drainage District v. County (Mo.), 216 S.W. 949; State ex rel. v. Sheetz, 279 Mo. 429. (11) The fact that the board of supervisors in levying that total tax required under Sec. 4394, R.S. 1919, placed the name "Carroll County, Missouri," opposite the description of the public highways in the column headed "owner of property assessed," and that Carroll County also appeared in the same column in the tax book levying the annual installment of the taxes sued on, does not make the assessment invalid, as the assessment is valid even where the wrong owner is named or no owner is named. Sec. 12803, R.S. 1919; State ex rel. McKee v. Clements, 281 Mo. 195. (12) The fact that plaintiff district proceeded against Carroll County for the collection of the same taxes sued for herein constitutes no estoppel against the plaintiff, which is a political subdivision of this State. Johnson-Brinkman Com. v. Railroad, 126 Mo. 344; Tracy v. Aldrich (Mo.), 236 S.W. 353; Brayton v. Gunby (Mo. App.), 267 S.W. 452. (13) The judgment for penalties and attorneys' fees was proper. Drainage District v. Bates County, 216 S.W. 952; St. Francis Levee District v. Dorroh, 316 Mo. 416. (14) The court did not abuse its discretion in permitting the introduction of evidence as to reasonable value of attorneys' fees after plaintiff had closed its case and defendants had requested a continuance for the purpose of offering declarations of law. Buck v. St. Louis Union Trust Co., 267 Mo. 644; Crosby v. Evans, 281 Mo. 202. (15) The court did not err in rejecting the evidence offered as to part of the highways being maintained by the State, as such evidence was not competent. State ex rel. v. State Highway Com., 315 Mo. 747.
Egypt and Cherry Valley Townships in Carroll County, Missouri, political subdivisions of the State of Missouri, have appealed from general judgments rendered against them by the Circuit Court of Saline County on tax bills for delinquent drainage taxes for the years 1922 to 1926, both inclusive, assessed by the Board of Supervisors of the Norborne Land Drainage District Company of Carroll County, Missouri, a public corporation, against the public highways in said drainage district located in said townships, and for penalties and attorneys' fees. A separate suit was filed against each of said townships and the venue changed to Saline County where the suits were consolidated and tried together and are so treated here. We have jurisdiction because defendants are political subdivisions of the State within the meaning of Section 12, Article VI, of our State Constitution. [Drainage District v. Trail Creek Township, 317 Mo. 933, 941, 297 S.W. 1.]
The petitions were in the usual form employed in suits on tax bills except that general judgments against the townships were sought. The answers contained general denials and matters of special defense, some of which are among the grounds urged in these appeals.
Upon the trial it was "agreed that Carroll County is, and was at all times covered by these tax suits, under township organization," and that defendant townships were legally organized congressional townships in said county. Plaintiff introduced the tax bills and the drainage tax books for the years 1922-1926, both inclusive, and having made a prima-facie case under the express provisions of Section 4400, Revised Statutes 1919, rested. Thereupon defendants offered demurrers to the evidence, which were overruled. However, defendants did not stand on their demurrers, but introduced in evidence the articles of association and decree of the Circuit Court of Carroll County of May 12, 1899, incorporating plaintiff drainage district; the articles of association for the re-organization of said district under the provisions of the Circuit Court Drainage Act of 1913 (Laws 1913, p. 232), and the notice of such re-organization; the report of the commissioners assessing benefits to the lands in the district and the public highways therein, and particularly that part assessing benefits to the highways in defendant townships, and the notice of the filing of the commissioners' report affecting lands in Carroll County; and the decree modifying and confirming the report of the commissioners.
After introducing the above mentioned articles, notices, report and decrees, defendants offered the exceptions filed by Carroll County, Missouri, to the report of the commissioners assessing benefits against the highways in the district, which evidence, on objection, was ruled inadmissible. Defendant then offered, over the objection of plaintiff, the petition filed in the Circuit Court of Carroll County against Carroll County for the collection of the same taxes herein sued for, less the penalty since then accumulated. The tax bill in said suit was also offered. The Recorder of Deeds of Carroll County identified the drainage tax record of the district, being the record levying the total tax under the provisions of Section 4394, Revised Statutes 1919, against the lands, public highways and other property, from which it appears that, opposite the detailed description of the highways in the district and in the column headed "owner of property assessed" are the words "Carroll County, Missouri," The Treasurer and ex-officio Collector of Carroll County testified that the delinquent taxes for the years 1922 to 1926, both inclusive, were certified to him by the secretary of the board of supervisors of the district, and he produced the certificate showing that the name Carroll County, Missouri, appeared in the column headed "owner of property assessed," and that same had been stricken through and the names of the several townships in the district substituted, but witness did not know who made the change; that witness did not make demand upon either of the defendant townships for the taxes against the public roads herein sued for until the latter part of 1927, and that said demand was oral; that witness prepared and signed the tax bills sued on at request of the attorneys for the district, and that the taxes in suit were the same, except as to the penalty sued for, as in suit against Carroll County which was dismissed in October, 1927. One of the trustees in Egypt Township was offered for the purpose of showing that certain highways in the townships had not been maintained by the townships, but had been marked as state highways. The offer was refused. Defendants then asked leave to produce the highway records of the State Highway Department to show that the State had designated highways in defendant townships in plaintiff drainage district as state highways, which evidence was never introduced. Defendants then renewed their objection to the introduction of the tax bills sued upon, and rested, with the request that the cases be continued to the next term of court in order that they might ask certain declarations of law. At the next term plaintiff, over the objections of defendants, introduced evidence as to the reasonableness of attorneys' fees asked for in said suits. Thereupon defendants asked, and the court refused, certain declarations of law, but made a special finding of facts as requested by defendants, finding the issues for plaintiff, to which finding of facts defendants excepted. Judgment was thereupon rendered for plaintiff in the case against Cherry Valley Township in the total sum of $1290.87, of which amount the sum of $168.37 was allowed as attorneys' fees, together with a penalty of two per cent per month on $679.84 thereof from the 1st of October, 1928, and six per cent interest per annum on the remaining amount. In the suit against Egypt Township, judgment was rendered in the total sum of $2715.06, of which amount the sum of $226.35 was allowed as attorneys' fees, with a penalty of two per cent per month on $1509.03 from October 1, 1928, and interest at the rate of six per cent per annum on the remaining amount of the judgment.
Counsel for appellants first insist that respondent was without power to levy any taxes against the highways in defendant townships, because (a) the townships were not made parties to the proceedings creating the district or named in the Owner: articles of association as the owners of any land or Assessment: other property in said district as required by Notice. Section 4378, Revised Statutes 1919; (b) the highways were not described in the articles creating the district as required by Section 4378, Revised Statutes 1919; (c) the townships were not given notice of the proceedings creating the drainage district as required by Section 4379, Revised Statutes 1919; and (d) the townships have never been accorded a hearing on the question of benefits to the highways, and hence, appellants say, they have never had their day in court.
The evidence shows that respondent drainage district was originally incorporated by decree of the Circuit Court of Carroll County, Missouri, on May 12, 1899, under the provisions of Section 6517 to 6529, both inclusive, Revised Statutes 1889. This law contained no provision for the assessment of benefits against public highways, nor did it contain any definition of the word "owner" which frequently appears therein. Consequently, neither the public highways existing within respondent's boundaries at the time of its incorporation nor the owners thereof were described, as such, either in the articles of association or in the final decree of incorporation. In this situation it was obviously unnecessary to so describe the highways and owners or to make defendant townships parties to those proceedings. In fact, it does not appear from the record before us that Carroll County was then under township organization. Subsequently, on January 12, 1917, this drainage district was re-organized under the Circuit Court Act of 1913, Laws of 1913, pages 232 to 267, now Article 1, Chapter 28, Revised Statutes 1919, Section 53 of this act, now Section 4429, Revised Statutes 1919, provided that the articles of association in such re-organization should "state that the boundaries of the district will be the same as the boundaries of the present organization and that the description of the land and other property and the owners thereof are such as are described in the present record of the district as now organized" etc. The notice for the hearing of the petition for re-organization ran, "To all of the owners of land and other property in" the named district in substantial compliance with Section 54 of the Act of 1913, now Section 4430. Revised Statutes 1919, governing the same. Section 4379 mentioned in appellants' objection (c) does not apply to reorganization proceedings. Section 39 of the Act of 1913, now Section 4415, Revised Statutes 1919, defined the word "owner" thus:
"The word `owner' as used in this act shall mean the owner of the freehold estate, as appears by the deed record, and it shall not include reversioners, remaindermen, trustees or mortgagees, who shall not be counted and need not be notified by publication, or served by process, but shall be represented by the present owners of the freehold estate in any proceeding under this act."
There is no evidence in the record before us that either of defendant townships had a freehold estate in any of the public highways in this drainage district. Hence, they were not owners within the meaning of the act and we have not held to the contrary in Drainage District v. Bates County, 269 Mo. 78, 189 S.W. 1176; or in Drainage District v. Trail Creek Township, 317 Mo. 933, 297 S.W. 1. Section 55 of the Act of 1913, now Section 4431, Revised Statutes 1919, reads thus:
"After said notice has been so given the matter shall be proceeded with in the same manner as is provided for where articles of association for the formation of a drainage district have been filed."
It follows, therefore, that neither in these articles of association nor in the final decree of reorganization, which could be no broader, was it necessary or proper that any public highways or owners thereof be described, as such, although from paragraph 4 of stipulation filed and records admitted in evidence it appears that in the articles of association, in the notice for the hearing of the petition, and in the decree, both in the proceedings of 1917 and those of 1899, the various tracts of land included in the district were described opposite the names of the owners thereof without excluding therefrom any of the land over which public highways ran, so that in fact all lands embraced within the district and proposed to be affected thereby, including land upon which then existing public highways were located, were described and ownership of the freehold estate of the respective tracts ascribed to named owners there so appearing by the deed records. This was a sufficient designation of ownership under above Section 39. Appellants' above objections (a), (b) and (c) are overruled.
So much for the first three grounds urged in support of appellants' contention that the respondent was without authority to levy any taxes against the highways in question, leveled as they are solely against the original proceedings incorporating the district in 1899 and the reorganization proceedings that culminated in the decree of January 12, 1917. But respondent does not claim that these proceedings alone would have authorized the issuance of the tax bills. It appears from the record of the decree of the Circuit Court of Carroll County rendered December 23, 1919, modifying and approving the commissioners' report filed in the office of the clerk of said court on December 26, 1918, which defendants introduced in evidence, that on December 5, 1917, and before any commissioners were appointed to assess damages and benefits on property in the district under said re-organization decree, the board of supervisors of said district filed a petition in said circuit court for an extension of its boundaries which resulted in a decree rendered August 12, 1918, extending said boundaries, and on the same day a board of commissioners was appointed to assess damages and benefits to property in the district as extended whose report was modified and approved in said decree of December 23, 1919. Thus, in the last analysis, the validity of these tax bills in the respects above questioned depends upon the validity of the proceedings had after the reorganization decree of January 12, 1917. We say this because prior thereto no effort had been made to tax highways, and because Section 40 of the Act of 1913, as it stood until 1919 and which with some changes is now Section 4416, Revised Statutes 1919, among other things relative to the extension of boundary lines of a drainage district, provided as follows (italics ours): "If such petition asks the court permission to change `the plan for reclamation,' or that the boundary lines of such district be in any manner changed, it shall also ask the court to appoint three commissioners as provided for under the provisions of section 12 to appraise the land that shall be taken for rights of way, holding basins, or other works, or assess the benefits and damages to any or all lands, public highways, railroad and other property already in the district or that may be annexed to the district by the proposed amendments, and changes to `the plan for reclamation' or the proposed change in the boundary lines of said district."
Section 40 also indicated the exact procedure to be followed in extending the boundaries of a drainage district. Defendants did not offer in evidence any record of these proceedings, and as the defenses presented in the instant suits are in the nature of collateral attacks (State ex rel. McBride v. Sheetz, 279 Mo. 429, 437, 214 S.W. 376; State ex rel. v. Blair, 245 Mo. 680, 687, 151 S.W. 148), we must assume that all jurisdictional requirements of the act were complied with. Defendants did introduce in evidence the report of commissioner assessing benefits and damages, filed December 26, 1918. According to stipulation filed herein it contained a detailed description of all the highways in defendant townships and located in the district together with the benefits assessed against them, Carroll County, Missouri, being designated as the owner thereof. Defendants also introduced in evidence record of notice of the filing of this report. In conformity with Section 15 of the Act of 1913, now Section 4391, Revised Statutes 1919, this notice was addressed "to all persons interested" in the lands described in said notice, and said lands were so described as to include the rights of way of all public highways thereover. This section expressly states that it "shall not be necessary for said clerk to name the parties interested." As already stated, defendants also introduced in evidence the decree of December 23, 1919, modifying and approving said commissioners' report, and according to stipulation filed, said public highways were therein described, as such, assessed with benefits, and Carroll County named as the owner thereof. It thus appears that wherever it can be said that the law required public highways to be described as such, assessed with benefits, and their ownership designated, in the proceedings to extend the boundaries of the district and assess damages and benefits against lands and other property included therein, these things were obviously done or must be presumed to have been done, and appellants' above objections even if lodged against these proceedings would also be unavailing.
We think appellants' objection (d) is also without merit. It is pressed as though a constitutional question were involved, but if one was raised it has not been properly preserved and, hence, cannot be considered here. However, we may say that Due counsel's contention that defendant townships "have in Process. no manner been summoned into court, have been accorded no hearing on the question of benefits to the highways and have never had their day in court," apparently rests on a misconstruction of our decision in the Trail Creek Township case, supra, because in discussing objection (a) they say we there ruled "that in counties where township organization exists the public roads, for purposes of taxation under the Circuit Court Drainage Act, are the property of the townships; that in counties with no township organization the roads are the property of the counties." The question of ownership of highways was neither raised nor ruled in the Trail Creek Township case. The township was there held liable for the drainage taxes levied against highways within its bounds, not on the theory that it owned the highways (under the pleadings it did not), but solely on the ground quoted from the opinion in Drainage District v. Andrew County, 278 S.W. (Mo. Sup.) 387, that "benefits should be paid for by the party whose duty it is to keep up the public improvement." In the instant suits there was no evidence that defendant townships held any highway rights, titles or easements. Section 10627, Revised Statutes 1919, relative to establishment of public highways provides that relinquishments of rights of way shall be made to the county and filed in the office of the County Clerk and in the office of the Recorder of Deeds, and the presumption here would be that owners of the fee adjoining the highways owned to the center thereof subject only to highway rights acquired and held by the county in trust for the public. The record shows, as above stated, that Carroll County was named as owner of the highways in the report of the commissioners assessing damages and benefits and in the final decree modifying and approving the same, and Carroll County appeared in response to the notice of the filing of said report, filed objections, was heard thereon and in said final decree allowed a reduction in the benefits assessed. Appellants are, therefore, in no position to maintain their objection (d). Indeed, this contention is clearly bottomed on a misconception of the legal relation existing between political subdivisions of the State and public highways situated therein. On this point we said in State ex rel. v. Drainage District, 269 Mo. 444, 457, 190 S.W. 897:
"In opening, vacating, improving, repairing and dealing with the public highways, the several counties and the county courts thereof are but agencies, or agents of the State; acting from the very necessities of the cause by delegated authority."
In Drainage District No. 1 v. Bates County, 216 S.W. (Mo. Sup.) 949, 953, on the question of notice in connection with the assessment of benefits to public roads, we said:
"This being a tax against the public or the State, although payable by the county, no special notice of the proceedings to the State or county was necessary. The only notice necessary is to the private persons, and not to the public, which really institutes the proceedings in such cases. The State can tax itself or the county, without any proceedings whatever, by a mere mandate of the statute. The Legislature could have provided that the State or county should pay one-half, or any part, or all of the cost of a public improvement, without more, and no provision of the state or federal Constitution would have been violated. It was not a constitutional necessity that either the State or county be a party (in the usual sense) to, or have special notice of, the proceedings to establish the cost, or do the work, or make assessments, therefor. That was a matter wholly within the province of the Legislature. Both the State and county and the public had all the notice in this case required by the statute, and that was sufficient."
Appellants' above objection (d) is overruled.
Appellants next assert that, "The assessments in these cases, having been made in the name of Carroll County, are void because made in the name of one not the owner of the property assessed." This claim also grows out of the misconceptions above Assessment noted. Defendant townships, as already indicated, in Name of were in no sense owners of the public highways. On County. the other hand, Carroll County was entrusted with the public's right, title and interest therein for highway purposes and evidently in that sense it was designated as the owner. However, appellants do not refer us to any provision of this Drainage Act, now Article 1 of Chapter 28, Revised Statutes 1919, requiring that these taxes be assessed to and levied against the owners of the land and we find no such provision. On the contrary, Section 4394, Revised Statutes 1919, reads, (italics ours): "The said tax shall be apportioned to and levied on each tract of land or other property in said district in proportion to the benefits assessed and not in excess thereof," etc. Appellants rely upon our ruling in Abbott v. Lindenbower, 42 Mo. 162, 167, decided in 1868 and construing the Revenue Act (Laws 1863-4, p. 61), that "an assessment in the name of a person who neither was nor ever had been the owner of the property would be an utterly void assessment." Section 10 (p. 68) of the act specifically required the land "to be assessed to the person appearing to be the owner at the time of the assessment." A new revenue act was passed in 1872, Section 203 thereof (Laws 1872, p. 124), providing among other things that, "each tract of land or lot shall be chargeable with its own taxes, no matter who is the owner, nor in whose name it is or was assessed," and this provision has been carried forward and now appears in Section 12803, Revised Statutes 1919. It seems clear that this contention of appellants also is without merit.
Appellants insist that respondent is estopped to claim of them the taxes, penalties and attorneys' fees herein sued for. They urge as ground of estoppel that respondent assessed said taxes to Carroll County and upon the refusal of said county to Estoppel. pay them the district filed suit therefor against said county, and by reason of this action defendant townships were induced to change their position to their detriment. The fact that the district may have sued the wrong person did not, of course, prevent it from dismissing the suit and suing the right person, and defendant townships were not led to any injurious action on their part by the fact that they were not sued. Nor does it appear that any act of plaintiff has induced defendants to alter their position to their disadvantage. The defenses vigorously interposed in the present suits are inconsistent with the idea of any voluntary payment of these taxes by defendants. This contention is likewise ruled against appellants.
Appellants also say that the present suits were barred by Section 4400, Revised Statutes 1919, because not Limitation: brought within six months after the taxes were Six Months. delinquent. The pertinent clause of this statute is as follows:
"The liens established and declared in the preceding sections may and shall be enforced by an action on delinquent tax bills, made and certified by the county collector, which action shall be instituted in the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied."
In Drainage District v. Bates County, 269 Mo. 78, a similar statute (Section 5599, R.S. 1909, now 4496, R.S. 1919, with some changes), was construed. The particular language there under consideration follows:
"The said tax shall become delinquent if not paid on or before the thirty-first day of December of each year and when so delinquent, shall bear interest at the rate of one per cent per month until paid and the collector shall bring suit for all delinquent assessments or installments thereof and interest thereon within six months after an assessment or installment thereof becomes delinquent."
Construing the above language we there (p. 91) said:
"It is urged because this portion of Section 5599, above quoted, says the collector shall bring suit within six months, that therefore the action is barred after that time. The words should not be so construed. The statute does not say the action shall be barred. Had the law-makers intended so harsh a thing, they would have been more pointed in their language. It is evident that there was no intent to bar the action at the end of six months. It is more in the way of a direction to the collector, than it is a statute of limitation."
The above construction was followed in State ex rel. McBride v. Sheetz, 279 Mo. 429, 439, 214 S.W. 376; State ex rel. v. Keithley et al., 204 S.W. (Mo. Sup.) 24; Drainage District No. 1 v. Bates County, 216 S.W. (Mo. Sup.) 949, 952 (second appeal); St. Francis Levee Dist. v. Arcadia Timber Co., 215 Mo. App. 368, 371; and State ex rel. v. Coleman et al., 274 S.W. (Springfield Ct. of Appeals) 1108, 1109. While this opinion in Drainage District v. Bates County, 269 Mo. 78, 189 S.W. 1176, did not receive the full concurrence of a majority of the members of the court, yet the subsequent opinions in State ex rel. v. Keithley et al., and Drainage District No. 1 v. Bates County, were adopted as the opinions of the court, all of the judges concurring. The Springfield Court of Appeals has twice followed these decisions on this point. In St. Francis Levee District v. Arcadia Timber Company, supra, the section considered was Section 4621, Revised Statutes 1919, the pertinent provision of which, identical with that now presented for our consideration, is as follows:
"The liens established and declared in the preceding sections may and shall be enforced by an action on delinquent tax bills, made and certified by the county collector, which action shall be instituted in the circuit court without regard to the amount of the claim within six months after December 31st of the year for which said taxes were levied."
We agree with the conclusion there expressed (p. 371) that the above section and Section 5599, Revised Statutes 1909, deal with practically the same subject-matter and there is no apparent reason that would require a different meaning. It does not appear from the reasons advanced by appellants that the construction heretofore given and relied upon for so many years should now be abandoned.
Appellants also contend that the trial court erred in rendering judgment for penalties, citing 37 Cyc. 1544, where it Penalty. is said:
"The courts will not enforce a penalty against the taxpayer where he makes a good defense against its imposition or shows a legally sufficient excuse for the delinquency charge. It is held a sufficient ground for refusing to enforce the penalty that the officers did not give the taxpayer the notice or demand to which he was entitled; that the tax was illegal or illegally levied."
Appellants have not shown that the tax was illegal or illegally levied, and in St. Francis Levee District v. Dorroh, 316 Mo. 398, 289 S.W. l.c. 921, we held that the statutory notice to taxpayers of the time and place the collector would meet them to receive taxes was only directory. It is said that the names of the townships never appeared in the tax bills until November 29, 1927, shortly prior to which date our opinion in the Harrison County case, supra, was handed down, that defendant townships were guilty of no wrongdoing whatsoever, and that we should refuse to enforce the penalties. Section 4397, Revised Statutes 1919, relative to delinquent drainage taxes, is as follows:
"All taxes provided for in this article remaining unpaid after December 31st of the year for which said taxes were levied shall become delinquent and bear a penalty of two per cent per month on the amount of said taxes from date of delinquency until paid. In computing said penalty each fractional part of a month shall be counted as a full month."
In 26 Ruling Case Law, page 385, it is said that "it is generally held that one who in good faith contests his liability to the tax and delays payment beyond the allotted time during the pendency of the litigation is liable for the penalty if the decision is adverse." An erroneous assessment is not a good excuse for non-payment of the proper amount. [37 Cyc. p. 1545, n. 77.] Waiver of a penalty may not be implied from a failure seasonably to demand it. [Ferguson v. Pittsburgh, 159 Pa. 435, 28 A. 118.] If the legislative idea is a penalty for failure to pay a tax it can "no more be forgiven for mistake, whether excusable or not, than that to which it is incidental." [State v. Ry. Co., 128 Wis. 449, 498.] In 3 Cooley on Taxation (4 Ed.) page 2536, it is said that penalties consist in an addition to the tax. In Jorgensen-Bennett Mfg. Co. v. Knight, 156 Tenn. 579, 588 (writ of error denied by the Supreme Court of the United States, 49 Sup. Ct. Rep. 186), it is said that "a belief of non-liability, based on a mistake of law, does not acquit." Appellants' contention is overruled.
Appellants also complain of the action of the court in hearing evidence as to the reasonable value of attorneys' fees at its September Term when the case was heard and argued at the preceding May Term. This is a matter within the sound Attorney's discretion of the court and appellants have not shown Fee. that this discretion was abused. Appellants themselves had asked that the case be continued to the September Term in order that they might prepare and offer declarations of law. When the evidence on attorneys' fees was heard, appellants did not ask the court for further time to secure evidence on this point, nor do they now claim that the fees allowed are excessive.
Appellants next say that their demurrers to the evidence offered at the close of all the evidence should have been sustained because: Demurrer.
(a) A valid and legal assessment against defendants was not shown.
(b) If plaintiff made a prima-facie case it was overturned when defendants showed that the tax bills were not based on a valid assessment.
(c) There was no proof of demand provided in Section 4396, Revised Statutes 1919.
Point (a) rests upon the objection, previously made and hereinabove discussed, that in the assessment of damages and benefits Carroll County was referred to as the owner of the highways in question. We repeat, if any person can be said to own the public highways, aside from abutting feeholders, County as it would be Carroll County to which all right of way Owner. relinquishments are presumed to have been made. On this theory the jurisdictional requirements of the drainage act were fully met. Furthermore, as we have already suggested, counties and townships are but agencies of the State, and this being a tax against public or state improvements, no special notice to such agencies was necessary because these proceedings were really instituted by the State. [State ex rel. v. Drainage District, 269 Mo. 444, 457, 190 S.W. 897; Drainage District No. 1 v. Bates County, 216 S.W. (Mo. Sup.) 949, 953.] Hence, above points (a) and (b) are overruled. Point (c), as already observed, is ruled against appellants on authority of St. Francis Levee District v. Dorroh, supra.
Appellants also say: "The petition is fatally defective and the evidence is insufficient because there is no allegation or proof that the townships had knowledge of the assessments against the highways." In the light of the provisions of Sections State 4390, 4394 and 4416, and the commissioners' report, Highway. notice of the filing thereof, and the decree modifying and approving the same, referred to in the petitions and heretofore fully discussed, this contention is ruled against appellants.
Appellants complain that they were not permitted to prove that part of highways in the district were maintained by the State Highway Commission. The record shows that they asked and were given leave to produce records of the State Highway Knowledge. Department on this point, but such records were never produced or offered in evidence. They were necessary to show that the roads had been taken over by the State. [State ex rel. v. State Highway Commission, 315 Mo. 747, 755-757, 287 S.W. 39.] This objection is overruled.
Finding no reversible error in the record presented for our review the judgment of the trial court is affirmed. All concur.