source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THOMAS C. WILSON, Administrator of Estate of HENRY W. PERKINS, Appellant, v. KING’S LAKE DRAINAGE & LEVEE DISTRICT.
    In Banc,
    April 2, 1914.

      1. SPLITTING CAUSE OF ACTION: Manifested by Petition: Demurrer. If there has been a splitting of the cause of action it must be manifested by the petition, if the only other pleading is a demurrer to the petition charging that it does not state a cause of action. Where the petition shows that the action is one for debt in the amount of certain warrants issued without authority of law by a drainage district for the construction of a levee therein, and not a suit on the warrants themselves, in order to justify a holding that there were other outstanding-warrants of the same character and that in consequence plaintiff has split his cause of action, the fact that there were other outstanding warrants unpaid must be manifested by the petition itself in the face of a demurrer thereto charging that it does not state a cause of action, even though it can be gathered from the bill that there had been other outstanding warrants.
    2. ASSIGNMENT OF CAUSE OF ACTION: Estoppel. One cannot aid in the prosecution of a claim by another without estopping himself from setting up a claim to the same thing. Where suit is brought by the assignee of warrants- issued by a drainage district which had never been legally organized, not upon the warrants themselves, but for debt in the amount of the warrants, and upon the assignee’s death the assignor is substituted as his administrator and as such prosecutes the suit, whether or not the assignment of the warrants was in law an assignment of the cause of action is wholly immaterial, for the assignor could never prosecute a suit on the warrants, and there is no danger that the district will twice have to pay the amount thereof. In addition, the action of the assignor in coming into and prosecuting the suit brought by the assignee is; of itself an acknowledgment of a valid assignment of the cause of - action.
    3. CORPORATIONS: Drainage District: Reorganization: Debts. Municipal corporations do not extinguish their debts by merely changing their names or reorganizing under new charters; and a drainage and levee district organized under the laws of this State to construct ditches and levees to drain the lands therein, is a municipal corporation. And where an attempted organization of a drainage district has been adjudged to be illegal (because one of the commissioners appointed to lay out and construct the work was not disinterested and competent), and thereafter a new corporation is legally organized to conserve-the same purposes for the same landowners and pertaining to-the same territory, and utilizes the same franchises to the same end as its predecessor, and appropriates and uses the ditches and levees constructed by it, the new corporation is-liable for the debts incurred in said construction.
    4. DRAINAGE DISTRICT: Illegally Organized: De Facto Corporation During Appeal: Debts. A petition was presented to the county court praying for the organization of a drainage and levee district. The county court granted the prayer, and appointed three persons to lay out and construct the work. They made a report, changing the proposed boundary, excluding the lands of one of them, assessing the total damages and total benefits, and apportioning them against the lands. The county court overruled exceptions to the report, approved it, entered judgment establishing the district and declared it to be a body corporate. On appeal to the circuit court and to the Supreme Court it was adjudged that one of the commissioners was not “competent,” and the cause was remanded to the county court ■ “to be by it taken up and tried as if the original petition were 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.” Pending the appeal the three commissioners proceeded to let contracts for the construction of the levees, and upon their completion issued warrants in payment for the work, some of which are held by plaintiff, who had constructed twelve miles of a levee. After the adjudication in the Supreme Court the county court took up and heard the original petition filed in the cause, found the establishment of the district to be necessary, appointed commissioners, modified and approved their report, and entered judgment declaring the district organized, incorporating the same territory and the same inhabitants under the same statutes. The new district appropriated the twelve miles of levee constructed by plaintiff, and remitted the original cost thereof to the landowners and credited the amount thereof on their assessments, and plaintiff sues as for debt, for the amount of the warrants, but not on the warrants themselves. Held, that during the pendency of the appeal the original attempted organization was a de facto corporation, and the new, having succeeded to all franchises and rights of the old, is liable for its debts.
    5. -: -: Appropriation of Levee. Under the statutes governing drainage and reclamation of overflow lands (which are by Sec. 5573, R. S. 1909, to be liberally construed) a drainage and levee district, regularly and legally organized, has power to appropriate an existing levee constructed under the authority of a de facto district whose organization was not legal because the statutes had not been followed and to whose purposes and franchises it has succeeded, and to incorporate such levee into its own system of levees and ditches.
    6. -: -: -: Estoppel: Debts. Estoppel can be successfully invoked against a municipal corporation which acts within the scope of its statutory authority. Where it enters ' into a contract, or becomes obligated to another by operation of law, within powers conferred upon it by statute, it is es-topped to deny the binding force- and effect of such contract or obligation to the same extent as would an individual.
    Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge.
    Reversed and remanded.

      F. L. Schofield and E. B. Woolf oik for appellant.
    (1) The defendant had a valid de facto existence at the time of incurring the obligations sued on, and cannot now escape liability thereon. While it may be ■conceded that the defendant corporation was never a perfectly constituted de jure' corporation until the entry of the sécond judgment of the county court confirming the report of the commissioners of November 29, 1904, it by no means follows that it had no real or responsible existence prior to that date. Our contention is that the body which, under the name “King’s Lake Drainage & Levee District,” entered into the contract with Wilson’s assignor for the building of this twelve miles of the levee, was and is the defendant in this case and none other. That the contract was precisely such as a levee and drainage district might enter into and was entered into in the precise manner required by the statute. That at the time of entering into this contract the defendant had a legally accountable and responsible de.facto corporate existence with adequate capacity and authority to enter into and bind itself by this contract, at least to the extent that its potential liability became complete by its thereafter-wards enlarging its de facto existence into an existence de jure and accepting and prosecuting to completion the work already done under this contract. And that under the circumstances set out in the petition the defendant is estopped to deny either its said identity or its liability. 8 Am. & Eng. Ency. Law, p. 747; 2 Cook on Corp. (4 Ed.), pp-. 1233, 1238; 10' Cyc. PL & Pr., pp. 249, 1066; Morawetz on Corp. (1 Ed.), sec. 143 ; 3 Am. R. R. & Corp. Rep. 662; Roll v. Smelting Co., 52 Mo. App. 66; 2 Beach on Priv. Corp., 1248; Note to 2 Cook on Corp. (4 Ed.), p. 1235. The principles relating to and governing the question of the existence of de facto corporations, are not confined to private corporations. They are equally applicable to public or quasi-public corporations of the exact character of the defendant drainage district. Savings Inst, v. Board of Education, 75 Mo. 408; Rice v. McClelland,, 58 Mo. 116; Sayre v. Tompkins, 23 Mo. 443; Speer v. Board of Co. Com’rs, 88 Fed. 749; Herring v. Irrigation Dist., 95 Fed. 70'5; Miller v. Irrigation Dist.,-85 Fed. 693; Irrigation Dist. v. Shepard, 185 U. S. 1. (2) But passing the question of the actual identity of the defendant corporation while acting under and through its lastly appointed -commissioners, with the de facto corporate body executing the obligations in suit acting through the commissioners first appointed, and treating them for the nonce as distinct and separate bodies, there would still remain a legal identity by succession, the application of familiar principles of the law relating to which would render the defendant equally liable. And these principles seem applicable alike to all corporations public and private. Where a municipal corporation is organized embracing the same territory which was included in former towns, it is liable for all the obligations of the latter. The same result also follows against an organized city which, hy extension of its limits takes in the territory embraced in former surrounding towns. Shapleigh v. San Angelo, 167 U. S. 646; Mount Pleasant v. Beckwith, 100 U. S. 514; Mobile v. Watson, 116 U. S. 280; Beach, Pub. Corp. (1893), sec. 476; Hughes v. School Dist., 72 Mo. 644; Thompson v. Abbott, 61 Mo. 177; Evans v. Bank, 79 Mo. 186 ; Brand River College v. Robertson, 67 Mo. App. 336. (3) It was perfectly competent for the defendant drainage district, through its new commissioners after due appointment, to ratify what had been previously done by the first commissioners, although done before acquiring full legal authority. 1 Dillon Mun. Corp. (4 Ed.), sec. 463; Water Co. v. Aurora, 129 Mo. 583. (4) The defendant should be estopped to deny its liability in this action. It is undoubtedly true that many of the rules of estoppel which ordinarily govern private corporations have no application to public or quasi-public corporations. But the estoppel here invoked does not rest alone nor chiefly upon the mere acceptance and appropriation of the twelve miles of levee built under the Wilson contract. It is confidently maintained that this contract was neither an unauthorized nor an illegal one. The very purpose of creating the defendant drainage district corporation was to build this twelve miles of levee along with other like work. The contract was entered into and the work was done in the precise manner required by the statute. True this was while the drainage district had only a de facto corporate existence; but when this de facto existence afterwards ripened into a de jure existence, its newly appointed commissioners found that this much of the levee had already been built by1 their predecessor commissioners and therefore reported to the county court that the twelve miles of levee “could and would be and had been adopted, availed of, and used as a part of the work committed to them to be done. ’ ’

      O. E. Avery and William A. Dudley for respondents.
    In developing the legal principles npon which the defense to this case rests, no attention neéd he given to the general proposition often recognized, in this State, that one corporation succeeding another by reorganization or merger, takes its property and assumes its obligations. The defense rests upon principles as well established but lying outside of the' doctrine of the case cited by appellant to prove that point. (1) Drainage districts organized under the provisións of Article 5, chap. 122, R. S. 1899, are not private corporations having general powers, but are public corporations, exercising limited powers delegated to them for specific purposes by the State. Morrison v. Morey, 146 Mo. 543; Land & Stock Co. v. Miller, 170 Mo. 240; State ex rel. v. Drainage Dist., 192 Mo. 517. And the proceedings by which the lands of the property owners ■of the district may be charged with any burden are identical in principle with those employed in paving streets and building sewers in the city, where a specific sum is raised and charged against the benefited lands and expended for the specific purpose for which it is ■raised. Land & Stock Co. v. Miller, 170 Mo. 240. (2) The first point being conceded, and every step in the proceedings prior to 1903', except the filing of the petition having been declared utterly void (Jamison Case, 176 Mo. 557), we have the single question, had the defendant the power to charge the lands of the district with the obligations contracted by the illegally constituted board of 1894, and if it had such power, has it exercised it in such a way as to legalize those obligations? As shown by thé Jamison Case, there were no legal officers of the district, no funds, no assessments and no right of way to build upon and no corporation, at the time "Wills made the contract and Wilson performed the work for which the warrants sued on were issued. The case presented, therefore, is that of one who has contracted with the assumed agent of a non-existing principal, the effect of which is that either the agent alone or no one is bound. Mechem on Agency, secs. 541-550'; Bishop on Contracts, secs. 1119-1120'; 31 Cyc. 1548-1549, pars. 2 and 3; Michael v. Jones, 84 Mo. 578; Humphrey v. Jones, 71 Mo. 62; Jaquemin v. Andrews, 40 Mo. App. 507. (3) Merely completing the organization in the name and in accordance with the general plans proposed in the original petition, wonld not amount to the ratification of the illegal proceedings previously had, otherwise the county court would have had no option bnt to enforce those illegal contracts or dismiss the petition. (4) The old levee being on the right of way under the plan of improvements finally adopted it had to be used, removed, or the organization abandoned. Wilson suffered no loss by its use. Defendant had no election between accepting! or rejecting the work. Hence, on general principles, there was no estoppel. 16 Cyc. 787, pan b; 31 Cyc. 1267-1270'. (5) “Such corporations can only make contracts when authorized, and as authorized, by law. Individuals may waive irregularities by subsequent assent, but on behalf of the taxpayers, there is no one authorized to waive anything. 77 State ex rel. v. Saline Co., 45 Mo. 242; Heidelberg v. St. Francois Co., 100' Mo. 69; Drainage Dist. v. Daudt, 74 Mo. App. 575; Maupin v. Franklin Co., 67 Mo. 327; Bernard v. Knox Co., 105 Mo. 382; State ex rel. v. Thomas, 183 Mo. 220; B'ook v. Earl, 87 Mo. 246; Phillips v. Butler Co., 187 Mo. 698; Bauer v. Franklin Co., 51 'Mo. 208; Seaman v. Drainage Dist., 219 Mo. 1. (6) While it is, in some instances, competent for a municipal corporation to ratify an unauthorized act done in its behalf, this can only occur where the act was within the scope of the powers of the corporation, and where the ratification is accomplished in the special mode prescribed by law for the performance of the act. State ex rel. v. Cowgill, 156 Mo. 634; Johnson v. School Dist., 67 Mo. 319; State v. Lawrence, 178 Mo. 372; Milligan v. Lexington, 126 Mo. App. 715; Neill v. Oates, 152 Mo. 585. (7) Bnt aside from the general principles already considered, there are difficulties inherent in the constitution of these districts which place it beyond their power to pay this sort of a claim. They are these: (a) The only purpose for which the court could make a special (or any) assessment under the Act of 1893 were: 1st. For the probable cost of the work proposed in the report, including all incidental expenses, and the cost of the procedure (9th Section). 2nd. The cost of maintenance of the ditch or work constructed, not to exceed annually 30 cents per acre (15th section). 3d. If the first assessment reported proves insufficient to complete the work, a further one could be made proportioned on the first (20th section) ; but of course only for the purpose of completing the work authorized at the time the original assessment was made, (b) The only time when the commissioners can do anything (except make preliminary surveys) that would create a charge against the district, is after the district has been legally organized (23d section), (c) The only purpose for which they are permitted to incur any indebtedness (except incidental expenses and cost of procedure) is for the construction of the work which they have been authorized to construct, and for which a legal assessment had already been made (21st section); (d) The only case in which they are permitted to issue promissory paper is where bonds are issued based on uncollected lawful assessments previously made (21st section); (e) The only case in which they are permitted to consider works previously constructed, is when that course is included in the prayer of the petition (9th section, par. 6). The following cases support the foregoing construction of the drainage act of 1893: Bank v. Drainage Dist., 82 111. App. 626; Drainage Dist. v. Kelsey, 11 N. E. (111.) :256; Badger v. Drainage Dist., 141 111. .540'; Bank v. Drew, 191 111. 186; Winkleman v. Drainage Dist., 170 111. 37; State ex rel. v. Winkleman, 96 Mo. App. 223. This act was transplanted here from Illinois. 1 Starr Ann. Statutes (1885), p. 919. The act of 1869 upon whieh the Sheridan and Holt county cases (93 Mo. 321 ■and 135 Mo. 533) were decided is entirely different from that of 1893. See Laws 1869, pp. 64 and 65, secs. ■5, 6, and 9, where the duty to make the successive levies is expressly imposed. No court will, by mandamus, require a public corporation to perform an act contrary to the law under which it was organized. Plaintiff has mo right to a judgment, the enforcement or payment of ■which would be only in violation of the law. (8>) A corporation possessing general powers and general funds, ^r the power to levy them, mig’ht well be held bound <on a void contract in a proper case upon the grounds of ■estoppel. The defendant here has neither/ The analogy to a street paving or sewer construction proceeding is complete in this case. The taxes which may be levied are special taxes and the purpose for which they may be levied is specific, they cannot lawfully be diverted from that purpose. The time when, the place where, and the conditions under which they may be levied are also specific and exclusive. There can be no other. Preceding such a levy, many important, specific and definite steps must be taken. King’s Lake Dist. v. Jamison, 176 Mo. 557; St. Louis v. Rankin, 96 Mo. 505; Michael v. St. Louis, 112 Mo. 610'; Springfield v. Weaver, 137-Mo. 650'; Wheeler v. Poplar Bluff, 149 Mo. 36; State ex rel. v. Winkleman, 96 Mo. App. 223; 8 Cyc. 1108, par. 2; Sedalia v. Donohoe, 190 M'o. 407.
   GRAVES, J.

This is the second appearance of this ease in this court. When first here we transferred it to the St. Louis Court of Appeals, because we thought the jurisdiction was there — Wilson v. King’s Lake Drainage & Levee District, 237 Mo. 39. Then, as now, the case stood upon a demurrer to plaintiff’s petition. The Court of Appeals have thoroughly thrashed out the question. That court first held that the trial court was right in sustaining the demurrer to plaintiff’s petition, but upon motion a rehearing was granted and had, and upon the second hearing a majority of that court was of opinion that the plaintiff’s petition stated a good cause of action, and accordingly reversed the judgment of the circuit court. One of the judges of the Court of Appeals dissented, and asked that the cause be transferred to this court, and in obedience to a proper order of transfer the case is here for final determination.

As stated the defendant in the circuit court filed a demurrer, and upon that being sustained, the plaintiff refused to further plead, and judgment was entered against him, from which this appeal was taken. When the cause was here before, we undertook to outline the petition, and although the document is a very lengthy •one, yet we think the abbreviated outline made of it then, fully presents the petition. In fact when we then outlined the petition it was done with the idea of passing upon the merits of the case, and it was only after we had fully analyzed the petition, that we became convinced of our want of jurisdiction, the question upon which the case ultimately passed from this court at that time. The petition undertakes to plead at length all the facts of the case.

When here before we thus stated the facts pleaded:

“This is an action to recover a money judgment, and a serious question is as to our jurisdiction, under the act of 1909, increasing the jurisdiction of the Courts ■of Appeals to $7500. This case was not submitted to this Court until long after that act took effect, and if the amount involved is less than $7500 it is our duty to certify the cause to the proper Court of Appeals. The appeal in this case was taken October 17,1906. Plaintiff filed a petition, to which a demurrer was filed and sustained. To détermine-the amount we must, therefore, go to the petition itself. We are not bound by the prayer of the petition, but must take the whole instrument and determine what sum is involved and at issue at the date of the judgment from which the appeal is taken. [Wilson v. Russler, 162 Mo. 565; Wolff v. Matthews, 98 Mo. 246; Milling Co. v. Walsh, 97 Mo. 287; State ex rel. King v. Gill, 107 Mo. 44.]
“The prayer of this petition reads: ‘Wherefore, premises considered, plaintiff prays judgment against the defendant for the said sum of $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. ’
“But going to the petition itself, we find this state of facts. In 1894, under the Act of 1898 (Laws 1898, p. 188) a proper number of persons residing and owning swamp and overflow lands in Pike and Lincoln counties, this state, presented their petition to the county court of Lincoln county, praying said court for the organization of the ‘King’s Lake Drainage and Levee District. ’ The petition was filed in Lincoln county because the greater portion of the lands to be incorporated therein was situated in that county. To this petition remonstrances were filed, and after the consideration of both petition and remonstrances, the prayer of the petitioners was granted, and three commissioners were appointed to lay out and construct the work, one of whom was W. J. Seaman. These commissioners made their report as required by statute, and at the May term of the said county court in the year 1895 said drainage district , was established under the name hereinabove set out, and the same was declared to be a body corporate. One Jamison, who had remonstrated, and whose lands were charged with $5726' benefits and credited with $2-05.56 damages, appealed to this court. [King’s Lake Drainage and Levee District v. Jamison, 176 Mo. 557.] The closing language of the opinion of this court in that case best describes our disposition of it. Such language is: ‘Without further elaboration, it follows that Seaman was not a competent commissioner, and that the circuit court was right in holding and in setting aside the report of the commissioners and the judgment of the county court. 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 proceeding 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.’ This opinion was handed down at the April term, 1903, of this court. The reason for thus disposing of the case is fully discussed in the opinion and further note of it need not be made herein.
“Pending the appeal in the Jamison case, the three commissioners proceeded to let contracts for the work of constructing the required levees and drains. The contract was awarded to A. Y. Wills & Son in 1894, and on October 21, said Wills & Son entered into a contract in accordance with this award. Later, in 1895, this contract was assigned to Thomas E- Wilson. In said work were twelve miles of levee which Wilson constructed. The said drainage district, through its president and secretary, issued to Wilson warrants upon the treasury of said district from time to time as the work progressed. Some were paid, but the four involved in this suit were not paid for want of funds. These four aggregated $5672.56. The first is for $4437.10, and is dated - May 22, 1896', and on its face calls for six per cent interest from date. The second is for $291.10|, of date December 14, 1897, with interest as the first warrant. The third is for $279.79', of date February 4, 1901, with interest as above. The fourth is for $664.57, of date October 16, 1902, with interest as first stated. The first two above described were issued to Wilson and by him assigned to H. W. Perkins. The last two were issued direct to Perkins in lieu of other warrants theretofore assigned to him by Wilson. Perkins brought the suit, but died before the trial, and Wilson, who had been made his administrator, became party plaintiff.
“Upon the filing of the mandate of this court with the county court that court proceeded as by our opinion directed. On November 13, 1903, the county court took up and heard said petition and found that the establishment of said drainage district was necessary,, and again appointed three commissioners. In August,. 1904, those commissioners filed their report, and on November 29, said report coming on for hearing was duly heard and by the court modified and approved, and on said date the court adjudged said district to be a drainage district under the name of £King’s Lake Drainage and Levee District’' and such was adjudged to be a body corpprate on that date. These commissioners proceeded with' the work and completed the levee and other work as described in the original petition. The petition, after charging all the matters which we have hereinabove detailed in brief, then specifically says:
£ £ £ 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 included same in the work so by them to be done, as such commissioners, for and on behalf of and as the corporate authority of the defendant King’s Lake Drainage & 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 land owners in said district on their assessments of benefits, for and on behalf 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 now 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 $18690.92, and that same is- and was 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 comissioners 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 set forth, filed and described as follows, to-wit:’
“Then follows a description of the warrants and the issuance thereof as we have shortly described above.
“Plaintiff then charges that the district issuing to him the described warrants and the present defendant are one and the same. The petition in this regard reads:
“ ‘Plaintiff says that the defendant King’s Lake Drainage & Levee District is a continuation of and is one and the same corporate body as the King’s Lake Drainage &.Levee District under the 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 H. Baskett and Frank 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 same were issued, or otherwise in the premises, against said district 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.’
“The petition then avers that .by reason of the premises and facts ‘ an action hath accrued to the plaintiff to demand and recover against the defendant the sum of $5672.56, the amount of the principal sum of said warrants numbered 51, 92, 18$, and 218, and also lawful interest on the several sums mentioned in said warrants, respectively from their respective dates aforesaid. ’
“A thorough examination of the petition shows that the action is not one upon the warrants themselves but for a debt equal in amount to the warrants. The petition sbowS that this defendant was not incorporated until 1904 and that this judgment appealed from was entered in 1906. ’ ’

Other specific portions of the petition may have to be more fully set out, but if so it will be done in' the course of the opinion. This sufficiently states the case.

I. Before reaching what we deem the vital question in this case some preliminary matters suggested by the respondent should receive consideration. "We do not think (and so held when the case was first here) that the petition is bottomed upon the warrants themselves. In other words that the suit is not one upon the warrants issued by the old district. With this holding in mind the respondent urged in the Court of Appeals, and urges here, that there were other outstanding warrants for the same work, and hence there has been a splitting of a cause of action. If this be true we must find it in the petition, becáuse in the present status of the case that is our only source of information. The majority opinion, of the St. Louis Court of Appeals rightfully .disposes of this contention in this.language:

“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. ’ ’

We have likewise gone over this lengthy hill and find no allegations therein which would authorize the inference that there were others interested than the present plaintiff. It can he gathered from the bill that there had been other outstanding warrants, but it can also be gathered from the bill that the four warrants mentioned in the bill were the only ones then unpaid. Suffice it to say that the bill on its face does not show that there has been a splitting of a cause of action (whatever the facts may be)rand it is only the bill which we have in solution now. It is quite probable that had there been other outstanding warrants in the hands of others, such persons would have joined in the action. This point is ruled against defendant.

II. In this court, by brief filed here for the first time, we have presented a “bran new” proposition. It is urged that the plaintiff herein has shown no title to his alleged cause of ae- .. . ... . tion. This new question is predicated upon these facts. The bill charges that all four warrants mentioned in the bill, were originally issued to T. C. Wilson; that all were assigned by Wilson to W. H. Perkins; that afterward two of them were taken up by the old corporation and two new warrants were issued in lieu thereof to Perkins; that these several assignments (differing only in dates) were in this language:

For value received ____I .... assign the within Warrant to____H. W. Perkins .... this 5th____day of____December, 1896 ...................................... T. C. Wilson.

The point made is that such an assignment is not sufficient to pass the title of the present cause of action from Wilson to Perkins. In this connection it should be remembered that the present suit is Perkins’ suit. Pending the suit, Perkins died, and Wilson, the assign- or, became his administrator, and continued the suit.

We need not go into a discussion of the technical question as to whether this assignment of the warrants by Wilson to Perkins, strictly speaking, operated as an assignment of Wilson’s cause of action, if any he had, outside of a suit upon the warrants themselves. Defendant is in no position to be harmed in this case. If Wilson had a cause of action, such as is being prosecuted in this suit by Perkins, through him, the defendant will never have to respond but once to such cause of action. Wilson, the original owner of the cause of action, is now here prosecuting it in the name of Perkins, and as the administrator of Perkins. He himself could never hereafter prosecute the same claim in his own individual behalf. No court would permit such an action to be successfully maintained, if brought. In other words, Wilson by his conduct in the case, has es-. topped himself from further claiming any title to the cause of action, and all this appears from the face of the record before us. One can not aid in the prosecution of a claim by another, without estopping himself from the same thing. [Davidson v. Davidson Real Estate and Investment Co., 249 Mo. l. c. 502-3.] But further, the act of Wilson coming into and prosecuting the suit brought by Perkins would of itself be an acknowledgment of a valid assignment of the cause of action to Perkins, even if it might be a question as to whether or not the first assignment was in all respects good.

Again we say the defendant can not be harmed. We hardly think that it is double payment which is feared by defendant. Its attitude would indicate an averse feeling toward even one payment of the claim. There is no substance in this contention and it will be disallowed.

III. The merits of this case are fully and ably discussed by Noutoni, J., in the majority opinion. We shall adopt as our views what he has written. We will preface Ms discussion 0f the merits by saying that what was said m this case when it was here before (237 Mo. 1. c. 45) about the old proceeding being torn up root and branch by the opinion of this court in 176 Mo. 557, does not mean that prior to the decision in the Jamison case (176 Mo. 557) the drainage district was not a de facto corporation. Our language cannot be tortured into that meaning. The de jure corporation was disturbed and uprooted by the Jamison case, supra, whether rightfully or wrongfully, we see no necessity now to decide, but that during all that time (between the Jamison appeal and the judgment of this court) there was at least a de facto corporation we think there can be no question. We leave the argument of the matter to the opinion of Judge Nortoni. He says:

“A majority of the court are of the opinion that the Mil 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 service 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 entirety because of the fact that Seaman’s wife owned land situated in the district, as will appear by reference to the decision of the Supreme Court overturning it. [King’s Lake Drainage Dist. v. Jamison, 176 Mo. 557.] It has been said the judgment of the Supreme Court in that case ‘cut up the prior drainage and levee district root and branch.’ [Wilson v. King’s Lake Drainage & Levee Dist., 237 Mo. 39.] 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 petitio'ners 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 end 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. ’ [King’s Lake Drainage District v. Jamison, 176 Mo. 557, 579.] Therefore, though the corporation 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 the same identical franchises theretofore involved and such alone is the substance of corporate existence. [Winkleman v. Levee Dist., 171 Mo. App. 49. ] 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 á 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 such 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 rnunicipal corporations under our law as is well settled by the Supreme Court decisions. [Wilson v. Drainage Dist., 237 Mo. 39; Winkleman v. Levee Dist., 171 Mo. App. 49; Morrison v. Morey, 146 Mo. 543, 560, 561.] 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. [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 5th Edition, 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 or 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 its liabilities.’ [See also Secs. 171, 172, 173, Dillon, Municipal Corporations (4 Ed.) or Secs. 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 cases-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.’ [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 created 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 report and run 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 land owners themselves. Thus they were relieved from the payment therefor though 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 that 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, R. 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.’ [State ex rel. McWilliams v. Bates, 235 Mo. 262, syl. 14] 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 be invoked against a municipal corporation, which acts entirely beyond 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 tbe Supreme Court iu numerous cases, but for tbe 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. For an application of tbe same doctrine in tbe case of a county which had contracted within its power but had defectively executed the power conferred, see Simpson v. Stoddard County, 173 Mo. 421, 463, 464, 465, 466. For a general review of the doctrine touching private- corporations, see Bank v. Lyons, 220 Mo. 538. 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 the 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 the case of King’s Lake Drainage Dist. v. Jamison, 176 Mo. 557, 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, wbicb appeared on the face of tbe 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.”

From the foregoing it follows that the judgment of the circuit court should be reversed and the cause remanded to be proceeded with -in accordance with this opinion. Let the judgment be reversed and the cause-remanded.


author: BOND, J.

text:
    JENNINGS HEIGHTS LAND & IMPROVEMENT COMPANY, Appellant, v. CITY OF ST. LOUIS et al.
    In Banc,
    April 2, 1914.
    1. DISTRICT SEWERS: To Drain Lands in City and Outlying Territory: Construction According to Charter and Ordinance: Enabling Statute Optional. Tbe validity of an ordinance, regular in all its details, providing for the construction of a district sewer to drain lands lying within and without the city limits, is not affected by the fact that the city did not avail itself of the Act of 1905, Laws 1905, p. 62, providing for joint . action between the city and county authorities in building sanitary sewers to lands lying partly within the city and partly in the county, if they see fit to take the necessary steps to avail themselves of its provisions. Said statute is not mandatory, but optional; and without it the city charter gives the city power, by ordinance, to construct sewers within its corporate limits.
    2. -: Benefit District: Conclusiveness of Ordinance. An ordinance enacted in pursuance to the charter, in so far as it establishes a district to be benefited by sewers and as justifying a special tax against the lands lying within the district to pay for its construction, is conclusive, in the absence of evidence of fraud in its procurement or proof that it is manifestly arbitrary or unreasonable, or that the assessment is palpably unjust and oppressive.
    3. -■: ->: -: Tax to Drain Higher Ground Lying Outside City. An ordinance establishing a benefit district within the city and providing that the lands lying within it alone are to be taxed with the cost of the construction of the sewer, is not invalid on the sole ground that the sewer is made larger than would otherwise be necessary in order that it may carry the waters of a creek that drains lands lying outside the city within the watershed, if the lands lying within the sewer district are lower than and therefore servient to the lands lying outside the city and would without the enlarged sewer be overflowed in times of rainfall from the waters of the creek. Nor are the tax bills to the extent of the proportionate amount they are swelled by the cost of constructing the enlarged sewer invalid.
    4. -: Corrupt Bargain Between City and Others. Contracts between the city and the officers of a cemetery association by which the association granted the right of way for a district sewer through its grounds and agreed to pay ten thousand dollars to the city, and required the contractor in return to fill up a creek to be drained by the sewer with the earth excavated in digging the sewer, are of themselves no evidence that the ordinance establishing the sewer district and providing for the construction of the sewer was enacted as the result of a corrupt agreement entered into by the city and such association.
    5. -: -: Notice to Contractor: Tax Dill. Even if it be shown that the ordinance establishing the sewer district and providing for the construction of the sewer was enacted as the result of a corrupt agreement between the city and the owner of considerable real estate in the section wherein a public sewer was laid, the tax bill issued to a contractor in payment for constructing the district sewer who had no notice of the misconduct, is not rendered invalid as to him by such misconduct.

      Appeal from St. Louis City Circuit Court. — Hon. Thomas C. Hennings, Judge.
    Affirmed.

      Christy M. Farrar for appellant.
    (1) ■ An ordinance of a municipal corporation may be declared void by the courts, as. being unreasonable, fraudulent, arbitrary or oppressive. City v. Hyde, 196 Mo. 498; Hannibal v. Telephone Co., 31 Mo. App. 23; Corrigan v. Grates, 68 Mo. 541; Ligare v. Chicago, 139 111. 46; 2 Dillon on Municipal Corporations (5 Ed.), secs. 580, 778,1578, note p. 2779; State ex rel. v. Grates, 190 Mo. 540. (2) Where the action of a Legislature is manifestly arbitrary or the assessment palpably unjust and oppressive, the wrong must always be open to correction. Norwood v. Baker, 172 U. S. 269; French v. Asphalt Co., 181 U. S. 324; 2 Cooley on Taxation (3 Ed.), pp. 1256-7-8. Special benefits actually reeeived is the only principle on which special tax assessments can justly rest. Clinton v. Henry County, 115 Mo. 569; Neenan v. Smith, 50 Mo. 526; 4 Dillon on Mun. Corp. (5 Ed.), sec. 1443, pars. 3-4-8. The cost of a local improvement ought to be assessed on particular property only to the extent that it is specially and peculiarly benefited, and since the expense beyond that is benefit to the municipality at large, it ought to be borne by the general treasury. Any other rule is unequal, arbitrary and oppressive. Chouteau v. Leffiingwell, 54 Mo. 474; Ins. Co. v. Preston, 71 Fed. 817; 4 Dillon on Mun. Corp. (5 Ed.), sec. 1443, pars. 3-4-8, and sec. 1437; Ham-met v. Philadelphia, 65 Pa. 154; Tidewater Co. v. Coster, 18 N. J. Eq. 529; 2 Cooley on Taxation (3 Ed.), p. 1255; 1 Hare on Const. Law, pp. 314-315. It is generally recognized and adopted as a rule by many legislatures and courts that in assessing the benefits of a trunk sewer,.the cost of supplying local drainage for the district, is the measure of benefits to- the district and the excess cost necessary to drain lands outside of the district is the public or general benefits. 4 Dillon on Mun. Corp., sec. 1460 (5 Ed.), p. 2619, note; Beechwood Ave. Sewer, 179 Pa. 490; Park Ave. Sewers, 169 Pa. 433; 2 Beach on Pub. Corp., sec. 1092; Wit-man v. Reading, 169 Pa. 375; Gray v. Boston, 139- Mass. 328; Alley v. Lebanon, 146 Ind. 125; Toledo v. Ford, 59 N. E. 779; McMakin v. Cincinnati, 1 Ohio Dec. 141. Any increase of cost in a sewer due to the fact that it drains other property, which cannot be included in the assessment, is unequal and invalid. Eyerman v. Blakely, 78 Mo. 151; South Highland Co. v. Kansas City, 172 Mo. 531; Page & Jones on Taxation by Assessment, secs. 563, 658; State ex rel. v. Union, 53 N. J. L. 67; Bayonne v. Morris, 61 N. J. L) 127; Boyden v. Battlebro, 66 Yt. 504; Hanscom v. Omaha, 11 Neb) 43. (3) Any consideration, other than the public good, influencing the legislative discretion of a municipal government is an abuse of such discretion, and a fraud oh the law and is contrary to public policy. Dillon on Mun. Corp. (5 Ed.), secs. 245, 792; Gurnsey v. Edwards, 26 N. H. 229; Smith v. Conway, 17 N. H. 586; Pepin Co. v. Puindle, 61 Wis. 310; Bill v. Elting, 29 Kan. 397; Howard v. First Church, 18 Md. 451; Maguire v. Smock, 42 Ind. 1; In re First Street, 66 Mich. 42; Commonwealth v. Cambridge, 7 Mass. 567; Commonwealth v. Samin, 19 Mass. 547; Townsend v. Hoyle, 20 Conn. 1. (4) An agreement on the part of. a city to exempt, omit or relieve property-from payment of special taxes for improvements is void. Vrana v. St. Louis, 164 Mo. 146; Ratcliffe v. Duncan, 130 Mo. App. 695; State v. Railway, 75 Mo. 208; Masters v. Portland, 24. Ore. 161; Fairbanks v. Fitchburg, 132 Mass. 42. And the omission of such property from taxation vitiates the tax bills and whole proceedings. 4 Cooley on Taxation (3 Ed.), chap. 6, p. 382; Meketchnie Y. Co. v. Cavandaniga, 44 N. Y. Supp. 317, affirmed 162 N. Y. 631; Yandeventer v. Long Island, 139 N. Y. 139; Green Bay & M. Co. v. Centagamin, 76 Wis. 587; Chicago v. Baer, 41 111. 306; 1 Page & Jones on Taxation by Assessment, secs. 639, 616; Weeks v. Milwaukee, 10 Wis. 263. Ordinances fair on their face, passed in pursuance of an illegal purpose or agreement are void, and parol evidence may be used to prove same. City v. Hyde, 196 Mo. 498; State ex rel. v. Gates, 190 Mo. 540.

      Charles W. Bates, William E. Baird and Truman P. Young for respondents.
    (1) The charter of the city of St. Louis was enacted by the voters of the city under authority of- the Constitution, and is a public law of which the courts take judicial notice, and has all the force and effect of an act of the General Assembly of the State. Constitution, art. 9, secs. 20-25; St. Louis v. Lang, 131 Mo. 420; St. Louis v. Fischer, 167 Mo. 660; Meier v. St. Louis, 180 Mo. 409. (2) The Municipal Assembly having express charter power to build district sewers, determine the class of sewers to be built, and establish taxing districts within which to assess property for the payment of the cost of such sewers, the passage of the ordinances for those purposes upon the recommendation of the Board of Public Improvements, as provided by the charter, is conclusive determination of those questions at least in the absence of fraud or imposition. These are legislative and not judicial questions. Prior v. Construction Co., 170 Mo. 439; Johnson v. Duer, 115 Mo. 376; Asphalt Co. v. French, 158 Mo. 534; He-man v. Allen, 156 Mo. 543; Heman v. Schulte, 166 Mo. 417; McGehee v. Walsh, 249 Mo.- 266; State ex rel. v. Schweickhart, 109 Mo. 511; Skinker v. Heman, 148 Mo. 355; Kansas City v. Eichards, 34 Mo. App. 521. (b) The same favorable presumptions as to reasonableness and validity attach to ordinances passed in the. exercise of express charter power as to acts of the Legislature. St. Louis v. Fischer, 167 Mo. 663; Prior v. Construction Co., 170 Mo. 439; Stinker v. Heman, 148 Mo. 349; State ex rel. v. Schweickhart, 109i Mo. 511; Morse v. "West Port, 110' Mo. 508. The special tax bills issued in payment for the cost of a public improvement is prima-facie evidence of the validity of all acts leading up to its issuance. Halsey v. Richardson, 139 Mo. App. 157; Michel v. Taylor, .143 Mo. App. 683; Granite Co. v. McManus, 144 Mo. App. 593. The attack on the special tax bill is based on the invalidity of the sewer ordinances and the ordinances being* within the express power of the city to enact the burden is on plaintiff to show by extrinsic matter the invalidity of the ordinances. (3) If the propriety of interference by the courts were unquestioned, nevertheless the ordinances providing for the sewers in the watershed under consideration were neither unreasonable, oppressive nor subversive of the rights of the plaintiff, and cannot be held void on any such ground. Prior v. Construction Co., 170 Mo. 439'; Joseph v. Farrel, 106 Mo. 443; Glasgow v. St. Louis, 107 Mo. 198; Morse v. Westport, 136 Mo. 276; Skinker v. Heman, 148 Mo. 356; Heman v. Schulte, 166 Mo. 409. (4) The facts show no fraud on the part of any one. Heman v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 451; Glasgow v. St. Louis, 107 Mo. 203. (5) Furthermore the bill does not allege that the contractor^ had any knowledge of or that he was a party to the alleged fraudulent dealings of the officers of the city with the board of managers of the Calvary Cemetery Association, nor does the evidence even remotely suggest that it participated therein or knew thereof. His rights cannot be affected by such dealings, no matter what they were. Bank v. Western, 147 Mo. 483; Asphalt Co. v. Hezel, 155 Mo. 391; Asphalt Co. v. Field, 188 Mo. 182; B'ank v. Hutton, 224 Mo. 42; South Co. v. Crommer, 202 Mo. 521; Strong v. Whybark, 204 Mo. App. 348; Holliday v. Jackson, 301 Mo. App. 263'. (6) The constitutional objections suggested by plaintiff have been settled adversely to plaintiff’s contentions and upholding the validity of the ordinances by repeated decisions of this court and those of the Supreme Court of the United States. Prior v. Construction Co., 170 Mo. 448 ; McGhee v. Walsh, 249 Mo. 266; Heman v. Schulte, 166 Mo. 409; Meier v. St. Louis, 180 Mo.-408; Heman v. Allen, 156 Mo. 543; Schumate v. Heman, 181 U. S. 402; French v. Asphalt Pav. Co., 181 U. S. 324; Bridge Co. v. Henderson, 173 U. S. 614; Webster v. Fargo, 181 U. S. 394; Chadwick v. Kelly, 187 U. S. 540; Wright v. Davidson, 181 U. S. 371, 379; Farrar v. St. Louis, 80 Mo. 379, 386-391; St. Joe v. Owen, 110 Mo. 455. (7) Special assessments for local improvements are made under the taxing power. Garrett v. St. Louis, 25 Mo. 508; Heman v. Allen, 156 Mo. 543; Heman v. Schulte, 166 Mo. 409; Asphalt Co. v. French, 158 Mo. 545; Meier v. St. Louis, 180 Mo. 408. The establishment of a taxing district, the sewer district in this case, is for the Legislature and not the judiciary, and so is the apportionment of the tax alike on all similarly situated in the district. Meier v. St. Louis, 180 Mo. 408; Prior v. Construction Co., 170 Mo. 451. (8) The city has lawful power to construct a sewer to be paid for solely by special assessments in a taxing district, although such sewer must from the topography of surrounding territory carry water coming into such district from higher ground. Prior v. Construction Co., 170 Mo. 439.
    STATEMENT.
    Plaintiff owns lot number 7, city block number 5949, located in Baden Sewer District No. 1, laid out by the ordinance number--city of St. Louis. The watershed drained by the district sewer constructed under this ordinance embraces 2266 acres. Of this, 938 acres lie outside of the city limits, and 1338 acres are within the city. The outlying land and 583 acres adjacent to it, and within the western limits of the city, are drained by the . district sewer in question. Just east of that, a second section embracing 356 acres lying in the city and running through Calvary cemetery, is drained by public sewer. Just east of this section are 399 acres also drained by a public sewer, which empties into the Mississippi River. The last two sections drained by the two public sewers were constructed and paid for by the city. These are the largest and most expensive, for they are built so as to drain all the flow from the west as well as the lateral drains, and to carry off the rainfall. The first section, whereT in the district sewer was constructed by the defendant contractor, was built so as to carry off the water of the- south branch of G-ingrass Creek, a small stream sometimes dry, which collected water flowing from the outlying lands as well as the drainage of the section of the city through which it runs, until it united' with; ¡another fork and both carried off’ through the public sewers emptying into the Mississippi.
    ■ ■ These three sewers were constructed under ordinances duly enacted by the city of St. Louis, which laid off, their respective districts and provided for their construction, and provided for the issuance of tax bills against the property-owners in the district where Baden sewer district was established. Tax bill number 12118 for $80.14 was issued to the defendant contractor against the property of plaintiff in accordance with the benefits assessed to it. Plaintiff brings this action, accompanied by a tender of $60 paid into the court, to cancel said tax bill on the ground that it embraced an overcharge against its property and that the ordinance under which it was issued is void for the reason that the city had no charter power to enact it; and that it was enacted in consideration of a fraudulent ’ agreement between the city and the cemetery association through whose grounds one of the public sewers is laid. The city of St. Louis, the contractor who built the sewers in, the district where the plaintiff’s property lies, and a trust company which holds some of the tax bills, are made parties defendant. All the defendants answer by general denial. After hearing the evidence adduced by the plaintiff, the trial court dismissed its petition and it duly appealed to this court.
    The errors assigned by the plaintiff will be considered in connection with the relevant evidence.
   OPINION.

BOND, J.

(After stating the facts as above). — It is claimed that the sewer district ordinance “is arbitrary, unreasonable, fraudulent, oppressive anf^ in that it did not provide for the construction of a sewer through the territory where plaintiff’s property is situated according to the provisions of an act of the Legislature of 1905 (Laws 1905, p. 62), which provided for the establishment of sanitary districts and for the construction of sewers over areas lying partly within the corporate limits of a city and partly within a county. Appellant also claims that the failure of the city of St. Louis to follow these provisions in reference to the construction .of the seWer in question, imposed the cost of-its construction upon the property of plaintiff and others lying within the city limits, instead, of imposing the costs of construction upon the whole territory within and without the city, as would have been done,-'if the legislative plan had been adopted by the city.

An examination of the terms of this act discloses that it merely provides a scheme by which any city and county falling within its purview, may establish a sanitary district wherein sewers may be constructed for draining the same and the cost may be assessed against “all the lánds lying within such sanitary distriet. ’ ’ But the act neither by its terms, nor legal import, prevents the city from exercising any charter powers possessed by it as to building sewers or establishing sewer districts and assessing the benefits thereof against the property lying within them. The statute only provides for joint action between a city and a contiguous county when the authorities representing the two corporations, see fit to take the necessary steps to avail themselves of the provisions of the law. The statute is not mandatory, but optional, and neither the city nor the county lose any charter or legal powers as to the construction of sewers in their respective limits, by failing or omitting to take advantage of the provisions ' of the general law. The charter of the city of St. Louis is judicially cognizable by us. All its provisions for the building of sewers, the establishment of sewer districts, letting of contracts, the assessment against the property benefited of the cost thereof, and the issuance of tax bills, appear to have been observed in the present case in the ordinance regularly enacted by the Municipal Assembly by virtue of the discretion entrusted to it. The validity of this ordinance is not affected by the fact that the city of St. Louis might have availed itself of the provisions of the act of 1905, if the county in which the outlying lands are situated, had been willing to act in concert with it. We therefore' overrule the assignment of error that the ordinance in question is rendered invalid by the provisions of the act of the Legislature of 1905', or by the failure of the city to avail itself of that method of constructing the sewers through the district where plaintiff is situated.

II. It is next urged by the appellant that because this sewer was constructed of greater dimensions than was otherwise necessary, in order to carry off the waters of a s£ream (SOuth fork of Gingrass Creek) which drained an area outside as well as within the city, an additional cost of construction was incurred, which is not chargeable against the property of the plaintiff or other property-owners, and that the ordinance providing for this construction is void, and the tax bill issued thereunder is unjust above the amount tendered by the plaintiff.

The ordinance under which the tax bill sought to be cancelled was issued was enacted in conformity with the charter of the city of St. Louis as amended in 1901. [Charter, art. 6, secs. 20', 22.] It'has been uniformly held that the action of the city legislature in pursuance of charter powers, in establishing a district to be benefited by sewers or other public improvements so as to justify a special assessment against the property lying within the district, is conclusive, m the absence of any evidence that it was procured by-fraud or proof that it is manifestly arbitrary or unreasonable, or that the assessment is palpably unjust and oppressive. [Cooley on Tax. (3 Ed.), p. 1256-7-8; McGhee v. Walsh, 249 Mo. 266; Heman v. Schulte, 166 Mo. l. c. 417; Heman v. Allen, 156 Mo. l. c. 543; Prior v. Const. Co., 170 Mo. 439; City of St. Louis v. Fischer, 167 Mo. l. c. 663; State v. Light & Power Co., 246 Mo. 653; State v. Light & Dev. Co., 246 Mo. 618; Bank v. Woosyen, 147 Mo. l. c. 483; Skinker v. Heman, 148 Mo. 349.]

The record in this case discloses that the watershed served by this sewer, laid partly outside the city limits, was traversed by the south fork of Gingrass. Creek, which was a small stream practically dry except in wet weather. No sewer could be built of insufficient capacity to carry off the accumulation and drainage of this stream, without exposing the property-owners to the dangers of an overflow of the creek at every rainfall. Necessarily the sewer, in order to accomplish its purpose, must be built big enough to enclose and carry off the polluted waters of Gingrass Creek. The existence of the stream was due to the topography of the watersheds, and that fact made it the duty of the city to provide a sewer adequate to the demands created by natural conditions in the locality to be drained. The lot purchased by the plain tiff was located in such surrounding's as to make it a servient estate and was specially benefited in proportion to the protection which the sewer, thus constructed, gave it against the damage from the flowage from higher ground. This specific benefit was the legal basis of an assessment equivalent to the proportion of the cost of the sewer justly chargeable against plaintiff’s lot, and if the $80.14, instead of $60 (which plaintiff paid into court), was assessed because the sewer was made large enough to carry off the drainage which accumulated in the natural water course, then no constitutional right of plaintiff’s was violated; for the tax represented only the special benefit accruing to it and other property-owners in the district through which this stream ran, and was therefore in strict accordance with the established law governing such assessments.

We conclude that this assignment of error is not well taken.

III. It is contended by the appellant that the ordinance in question was enacted by a corrupt agreement entered into by the city of St. Louis and the managers of Calvary cemetery, which was a considerable property-owner in the section wherein a public sewer was laid. A careful examination of the evidence touching, this contention discloses no substantial testimony in its support. There was some correspondence between .the city and the managers of the cemetery association relative to the obtention of a right of way through its grounds, which resulted in contracts between them, granting á right of way and agreeing to pay $10,000 to the city, and requiring the contractor to fill up Gingrass Creek with the earth excavated in digging the sewer. But there is a total failure of proof of any corruption or bribery connected with these transactions or that the city was influenced in the exercise of its legislative discretion by any improper motive or that there was any intention on the part of the managers of the cemetery association to do so.

Neither is there any evidence in this record that the contractor who built the sewer which drained plaintiff’s property with its knowledge and without any protest or objection, had any notice of the alleged fraudulent conduct of the city officers and the managers of the cemetery association. That he could not otherwise be prejudiced, even if such misconduct had been shown, is well settled. [Jaicks v. Merrill, 201 Mo. l. c. 110; Paving Co. v. Field, 188 Mo. 182; Bank v. Hutton, 224 Mo. 42; Lumber Co. v. Crommer, 202 Mo. l. c. 521; Strong v. Whybark, 204 Mo. l. c. 348.]

The judgment of the trial court is affirmed.

All concur. Woodson, J., in result.