author: WALKER, J.

text:
    W. E. COLLINS et al., Appellants, v. A. JAICKS COMPANY.
    In Banc,
    July 7, 1919.
    1. PRACTICE: Judgment on Pleadings: Ascertainment of Cause of Action. In an action brought by property owners for the cancellation of special tax bills, wherein the pleadings consist of the petition, an answer and a reply denying the allegations of the answer, the sole question, on the filing by defendant of a motion for judgment on the pleadings, is whether the petition states a cause of action entitling plaintiffs to the relief asked.
    2. STREET IMPROVEMENT: Maintenance and Repair: Benefit Assessments. Under the present charter of Kansas City the city has power by ordinance to direct that the cost of repairing and maintaining an existing boulevard be paid by special assessments against the abutting property, or said cost may be paid out of the funds belonging to the park district in which the improvement is made or out of the general park fund; and the exercise by the city of its option to authorize the cost to be paid by special assessments will not be held to be illegal, unless the act is clearly unreasonable, oppressive arid subversive of the rights of the property owners.
    3. -: General Power of Cities: Conelusiveness of Exercise Upon
    • Courts: Fraud. The power of cities to grade and improve streets is legislative and continuing, subject to such restraints as may be imposed by valid charters; and the power being conferred by charter, and the charter provision being in harmony with constitutional and statutory authorization, the courts will not interfere, either directly or collaterally, with'municipal action, in the absence_of fraud. The governing body of the city, and not the courts, is the judge of the necessity and expediency of the exercise of the power conferred, and the fraud that will authorize the courts to interfere with municipal action is not that it has resulted in individual hardship, or that in working out a general scheme an individual burden without corresponding benefit is imposed, but only an act so unreasonable, oppressive and subversive of the rights of citizens in the general purpose declared, as to clearly indicate an attempted abuse rather than a legitimate use of the power conferred.
    4. -: Part of Street: Inequality of Non-Uniformity.- A city having charter power to improve or repair streets, and to “pay for such improvement or any part thereof” out of its general funds or hy special assessments against abutting property, may pay for repaving a portion of a boulevard out of its general fund, and at a later time provide that the cost of repaving another portion . shall be paid by special assessments; and in the absence of fraud, it will not only be presumed that the city authorities had good and sufficient reasons for proceeding by different methods in the two proceedings, but there was no such inequality or lack of uniformity as denied to the abutting property owners the equal protection of the laws.
    5. -: Exemption from Subsequent Taxation: Contractual Right. The charter and ordinance under which a street was improved do not constitute a contract with abutting property owners who paid taxes therefor, that their property will not be burdened with taxes to pay for subsequent repairs or repaving. The statute, or a charter in harmony therewith, conferring upon a municipality power to provide for the construction, repair and maintenance of streets, may be changed, so as to provide a different method of paying for the improvement, or so as to repair an improvement already made, and such change in the law does not constitute an impairment of any supposed contract between the city and the abutters, who paid for an earlier improvement, that their property will not be sujected to taxes to pay for a later improvement or repairs.
    6. -: Maintenance: Tax Bills Prima-Facie Regular. Special tax bills issued for the improvement of a boulevard import prima-facie validity under the charter of Kansas City, and are evidence of the liability of the property for the amount thereof; and an allegation in the petition that the resolution authorizing the improvement provided that the boulevard shall “be paved the full width thereof with bituminous pavement macadam” does not justify the conclusion that the tax bills were issued for maintenance work. Besides, the charter provides for the maintenance of a boulevard by special assessments.
    •?. -: Change in Charter: Omission of Exemption Right: Impair-' ment of Contract. A provision in the city’s charter at the time the boulevard was paved, to the effect that when a boulevard has been constructed at the expense of the adjoining property it shall thereafter be maintained at the expense of thg park district in which it is situated or out of the general park fund, did not create a contract right with abutting owners that their property would be exempt from special assessment for improvements made after the charter provision was annulled, or inhibit the annullment of such provision; nor was such exemption kept alive by a clause in the subsequent charter that “the repeal of any law by the provisions of this charter shall not in any wise affect any right acquired or accrued thereunder, nor shall this charter in any wise affect the right acquired or accrued under the previous charter.” The operative force of the provision in the original charter prevailed so long as that charter was in existence, hut no longer, and “the right acquired thereunder” did not prohibit the city, by a new charter, to provide a different method for paying for street improvements.
    Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.
    AkEIBMM);.

      Griffin & Orr and R. B. Middlebrook for appellants.
    (1) The allegations in plaintiffs’ petition specifically set up that the work in controversy is maintenance and repair and defendant by demurring to this admits the correctness of this statement for the purposes of this argument. (2) The city had no power to issue special tax bills for maintenance work. Payment for maintenance work should be paid for solely out of the maintenance fund of the park district in which Limwood Boulevard is located, which fund is generously provided for by the charter, and the abutting property should not bear the expense of maintenance and repairs. Section 31,-Article 13, Charter of 1909, authorizing the issue of special tax bills, is general in its nature, covering every conceivable kind of work, including even bridges and culverts, while Sections 33 and 34 of said article are special in their nature, being expressly and specifically-designed to regulate and provide for the raising and expending of a maintenance fund to take care of the' maintenance and repair of boulevards and to set bounds upon its size. In the case at bar the city proposes to ignore all these special restrictions and máximums and just issue special tax bills to cover the entire cost of repairs. (3) A special provision applicable to . a particular subject shall prevail over a general provision that may be inconsistent therewith. Roth v. Grabber!, 123 Mo. 32;; Poor v. Watson, 92' Mo. App.' 96; Ruchenberg v. Railroad, 151 Mo. 85; City of Springfield v. Stark, 93 Mo. App. 76; Camp v. Wabash Railroad, 94 ■ Mo. App. 280; State ex rel. v. Roach, 258 Mo. 552; State ex rel. Lindell Hotel Co., 9 Mo. App. 453. (4) If the charter confers the power to impose special tax bills on some abutting land and to entirely relieve other abutting land similarly situated of that burden as contended by respondent, then the owners of the burdened land are denied the equal protection of the laws within the meaning of Section One, Article 14, Federal Constitution. 8 Cyc. 1073; Cotting v. K. C. Stock Yards, 103 U.- S. 107. (5) The charter of 1889, as amended in 1895, contained the following section: ‘‘Provided further, that when any parkway or boulevard has been constructed at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the Park District in which the same is situated or out of the general park fund.” Charter 1889, art. 10, sec. 31. While this charter was in force, plaintiffs relying on this section, invested in boulevard land and expended large sums for originally constructing this boulevard (said expenditures being set forth in their petition)- and tax bills were issued therefor and duly collected by the city and paid by the abutting property. The present city charter,as adopted in 1908, omitted the proviso above quoted, and plaintiffs contend that the attempt in the case at bar to burden their adjoining property with special tax bills for maintenance of a boulevard already constructed, is violation of their constitutional right. Art. 12, sec. 19, Mo. Const. To subject these lands to the cost of maintenance and repairs is to “ impose a new liability in respect to considerations already past,” and the same can not lawfully be done by adopting a new charter, any more rightfully than it could be done by the Legislature. R. S. 1909, sec. 9710.

      Clarence S: Palmer for respondent.
    (1) The provisions of the present charter authorizing the re-pavement of a boulevard and assessment of cost against abutting property, is not nullified by reason of tbe fact that the prior charter gave no such right. The provision of the former charter did not constitute a contract right of plaintiffs: (a) because there was lack of a consideration; (b) because such a contract would have been contrary to the provisions of the Constitution of 1875, relating to the exemption of property from taxation. 4 Dillon on Mun. Corp. (5 Ed.) 2581; Ladd v. Portland, 32 Ore. 272; State v. Mayor of Newark, 37 N. J. L. 424; Carstens v. Fon du Lac. 137 Wis. 465; Tilden v. Mayor, 56 Barb. (N. Y.) 361; Bradley v. McAtee, 7 Bush (Ky.) 667; Rochester v. Ry. Co., 182 N. Y. 99; Houck v. Drainage District, 248 Mol 394; Miners Bank v. Clark, 252 U. S. 20; Wisconsin & Michigan Ry. Co. v. Powers, 191 U. S. 379; Grand Lodge v. New Orleans, 166 U. S. 143; Paige & Jones, “Taxation by Assessments,” "sec. 172. (2) The improvement in question was not maintenance but repaving. Jones v. Plummer, 137 Mo. App. 337; Bliss on Code Pleading (2 Ed.), sec. 418; Kleekamp v. Meyer, 5 Mo. App. 444. (3) Plaintiffs waited until the work was completed and they had received its benefits, and are, therefore, es-topped from proceeding in equity to ask that the contractor shall receive no pay for his work. The Planet Có. v. Ry. Co-? 115 Mo. 620; Jaicks v. Merrill, 201 Mo. 91; Gibson v. Owens, 115 Mo. 258; Hellenkamp v. Lafayette, 30 Ind. 192; Palmer v. Stump, 29 Ind. 329; Lafayette v. Fowler, 34 Ind. 146.
   WALKER, J.

This is an action brought by property owners against a contractor for the cancellation of certain tax bills issued by Kansas City for paving Linwood Boulevard from Troost Avenue to Prospect Avenue. The pleadings consist of the petition, the answer and the reply. At the trial, the defendant filed a motion for judgment on the pleádings, which was sustained; and plaintiffs appealed. As the reply denied the allegations of the answer, the sole question was whether the petition stated a canse of action entitling the plaintiffs to the relief asked.

The petition, after pleading the corporate existence of certain parties plaintiff, alleges their respective ownership of certain tracts of land therein described, and that tax bills have been issued to the defendant in payment of improvements made on Linwood Boulevard. The date of the issue 'of these tax bills is not stated, nor their respective numbers or amounts. The existence of Linwood Boulevard from Troost Avenue to Prospect Avenue, the portion»of the boulevard.paved, is alleged to have been at all times under the control and management of the board of Park Commissioners of Kansas City; that, in 1900, the city authorized the pavement of Linwood Boulevard from Troost Avenue to Michigan Avenue, and, in 1909, provided for the pavement of Linwood Boulevard from Michigan Avenue to Benton Boulevard (a point farther east than Prospect Avenue), and that said work was done and tax bills issued in payment thereof, which were paid by the owners of land fronting on the boulevard. Section 31 of the Charter of 1899, as amended in 1895, which authorized the improvements made in 1900 is set out; that on August 4, 1908, Kansas City adopted a new charter. Certain provisions of this charter are pleaded; among others, Section 33, Article XIII, which provides that the maintenance fund for parks and boulevards may be assessed against all the land, exclusive of improvements in the respective park districts, and that all vehicle taxes collected in Kansas City shall be used exclusively for the construction, maintenance, repairs, etc., of parks, boulevards, etc., under the control and management of the Board of Park Commissioners.'

Section 34, Article XIII, of the Charter, is also set out, which provides for a maintenance fund of ten cents per front foot on all the land fronting on boulevards or parkways.

It is further pleaded that the levy of two and a half mills upon each dollar of valuation of .the real estate in Kansas City was levied for the year 1914; that certain sums from the vehicle license were received. for that year, and that a special assessment of ten cents per front foot on the land fronting upon all boulevards was levied, and in addition, that the Common Council for the year 1914 appropriated the sum of $62,980 for improving parks and boulevards for the year 1914, and for general expenses, as provided by Section 35, Article 13, of the Charter, and that the maintenance tax and the ten-cent tax and the general taxes were all contributed to by the plaintiffs, as owners of real estate. This is followed by a conclusion of law that the funds specified were the only funds available for the improvement of Linwood Boulevard.

Plaintiffs then allege that in violation of the Charter of 1908, the-Board' of Park Commissioners adopted a resolution, April 27, 1914, providing “that’Linwood Boulevard from a line eighteen inches east of the east line of the street car track in Troost Avenue, to a line eighteen inches west of the west rail of the street car track in Prospect Avenue, be paved the full width thereof with bituminous pavement macadam, and that the approaches to the cross streets be paved with asphalt,” and that said work be paid for by the issue of special tax bills; that the Common Council, by Ordinance No. 11918, approved June 23, 1914, ordained that Linwood Boulevard should be paved as provided in said resolution, and that the work be paid for by special tax bills; that Section 12, Article 18, of the Charter of 1908, relating to the effect of the adoption of the new charter upon existing rights or liabilities, and that the issue of tax bills against plaintiffs’ property was in violation of said Section 12, and further alleges that plaintiffs purchased their property relying upon the rights, privileges and exemptions supposed to be contained therein.

That the work as actually done ‘ ‘ consists of putting a top dressing on said boulevard,” and that this is what is properly, ordinarily and regularly known and designated as maintenance and repairs, as that term is used in the charter and in ordinary parlance; hut that said work, though done in accordance with plans and specifications therefor, was, in reality, a maintenance or repair of said thoroughfare.

That a portion of Linwood Boulevard, extending from Prospect Avenue east to Benton Boulevard, had, at some time prior to the work under Ordinance No. 11918, “been maintained and repaired with identically the same material and in precisely the same manner as the work done under Ordinance No. 11918, on that portion of said Linwood Boulevard hereinbefore described, upon which plaintiffs’ properties do abut,” and that this act of the city constituted a discrimination in violation of the charter and of the Constitution of the United States.

The petition then alleges that plaintiffs’ property could not be lawfully assessed for this work, and that the imposition of the tax was contrary to the provisions of the Charter of Kansas City in force when the boulevard was originally paved (in 1900'), and contrary to the spirit of the provisions of the Charter of Kansas City now in force.

The acceptance of the work by Kansas City through its proper officials and the apportionment and issue of the special tax bills to the defendant is stated, and that said tax bills purport to be liens against the plaintiffs’ respective properties.

Article 12, Section 19, of the Constitution of Missouri, is then quoted, which prohibits the Ueneral Assembly from passing retrospective laws or imposing on the people of any county or municipal subdivision a new liability in respect to transactions or considerations already passed.

Finally, it is alleged that plaintiffs are denied' the equal protection of the law, in violation of the Constitution of the United States, and are deprived of their property without due process of law, in violation of the Constitution of Missouri, and judgment is asked for the cancellation of the tax hills.

I. The burden of this petition, upon which appellants’ right of action depends, is that the work in controversy was that of maintenance and repair, and that the city had no power to issue special tax bills for this character of work, which should have been paid for out of the maintenance fund of the Park District in which Linwood Boulevard is located, and not by a levy upon the abutting property.

A portion of Linwood Boulevard between Prospect Avenue and Benton Boulevard had theretofore, under a former charter (See. 31, Art. X, Kansas City Charter of 1889, as amended in 1895), been paved. This section had a limitation on assessing the cost of boulevard, avenue, or street improvements against abutting property owners, and provided that after having once been paved, they should thereafter be maintained at the expense of the Park District, or the improvement was to be paid for out of the general park fund.

The tax bills, the payment of which is here contested, were issued to pay for the paving of Linwood Boulevard from Troost to Prospect Avenues. An ordinance authorizing this improvement had theretofore been passed, under Section 31 of Article 13 of the present charter of Kansas City. The portions of said section of the charter having reference to the matter at issue, are as follows: “The Board of Park Commissioners shall have power to cause any road, parkway, boulevard or avenue, or part thereof, which may be under its control and management, to be graded, regraded, paved, re-paved, curbed, re-curbed, guttered, re-guttered, or otherwise improved, repaired and maintained . . . with such material as the said board may determine, and may pay for such work or improvements, or any part thereof, out of the funds not otherwise appropriated, belonging to the park district in which, said work or improvement is done or made, or- out of .the general park fund; Provided, however, That if the Board of Park Commissioners shall, by resolution,' determine that any such work shall be done, and that the payment of the whole or any part thereof be made in special tax bills, the Common Council shall have the power, by ordinance, to ratify and confirm the action of said board, and authorize such work to be done, in which case and when so ratified the Board of Public Works of said city shall apportion or cause to be apportioned the cost of said work or improvements, and issue special tax bills therefor, or for any portion thereof, so ordered to be paid in tax bills, in the same manner and with the same effect as the cost of similar work or improvements is apportioned and tax bills in payment therefor issued in such city for public improvements or work upon streets not under the control or management of such Board of Park Commissioners.”

It will be seen that this section does not contain the limitation found in the former charter (Sec. 31, Art. X, Charter of 1889, as amended 1895), in regard to the manner of payment of the cost of street improvements, but provides that such cost may, as determined by the Board of Public Improvements, be paid out of the Park fund or by the issuance of special tax bills,- if so authorized by a resolution of the board. Incidentally it may be stated that there was a compliance with this requirement. The comprehensive nature of this section is apparent from its use of all of the terms employed in designating the streets of a city, viz.: avenues, boulevards, roads and parkways.

The power of the board to thus provide the manner in which the cost of such improvements may be paid for having been defined by the charter, it remains to be determined whether its provisions relative thereto, are valid.

Preliminary to á discussion of the immediate question here seeking solution, it is not inappropriate that reference be made to the general power of the city through its proper instrumentalities to make such improvements as are here contemplated. Under the present charter, it is provided that: “The city shall have power to acquire and cause to be made all public improvements designated in this article, to pay therefor, in whole or in part, out of the general fund, or in whole or in part by special assessments, and to make and levy, assess and collect special assessments to pay therefor, and to issue special tax bills to evidence such assessments.” [Sec. 1, Art. VIII, hot. p. 308; present charter of Kansas City.]

The trend of judicial construction is that in the exercise of a power of this character, the courts should not either directly or collaterally interfere with municipal action in the absence of fraud. A general declaration of this rule is found in McCormack v. Patchin, 53 Mo. 33, in which it is held that the poAver to grade and improve streets is a legislative and continuing' power, subject to such restraints as may have been imposed by the charter. It may be exercised from time to time as the wants of the municipality may require; and as to the necessity or expediency of the exercise of this power, the governing body of the municipality, and not the courts, is to be the judge; that the power to compel property owners to pave generally extends to requiring them to repave when so directed by the proper municipal authority. The rule as thus announced was reaffirmed in Farrar v. City of St. Louis, 80 Mo. 379, where it Avas held, that the power to pave the streets of the City of St. Louis and to charge the cost of such improvements against abutting property, conferred by certain sections of the charter of that city, and the mode of the exercise of this power under a designated ordinance, was not in conflict with the State Constitution.

The Farrar case is especially rich in its references to earlier Missouri cases discussing and defining the poAvers of municipalities in the exercise of the taxing power for the improvement of streets subject only to the limitations stated, viz.: those forbidden by the Constitution or the general laws of the State.

The later case of Skinker v. Heman, 148 Mo. 349, reasserts the doctrine of the freedom of action, in the absence of fraud, of municipal authorities in providing by ordinance in compliance with the charter, for the issuance of tax bills for a new sidewalk.

In no case have we found the rule more clearly and conclusively stated than in Heman v. Schulte, 166 Mo. 409. This was a suit on a sewer tax bill. Defendant objected to its payment on the ground that his property had no immediate access to the sewer, and hence should not have been included in the benefit district. In holding that the action of the city council was conclusive in including the property in the district, the court said, at page 417: “Not only is it the rule in this State . . . ‘that when the matter of establishing sewer districts is intrusted by the Legislature to the common council, its action in the premises is conclusive in a collateral attack,’ but the rule generally stated is, that where a municipal body vested with the exercise of a power, acts, its acts under that power, in the absence of fraud, are conclusive upon the courts, whether the attack made thereon is collateral or direct, and the fraud that will authorize the court’s interference in the matter of municipal action, is not that the power exercised or the ordinance passed has resulted in an individual hardship in its execution, or that in the working out of the general scheme designed by an ordinance an individual burden is imposed without a corresponding benefit conferred (a necessary incident to any system of general taxation or special assessment yet devised for governmental maintenance and support); but only in those cases where the act of the municipal body is so unreasonable, oppressive and subversive of the rights of the citizen in the general purpose • declared, as to clearly indicate and leave but one inference, that of an attempted abuse rather than the legitimate use of a power enjoyed; and of this qualified and' limited assertion of right in the courts to interfere with municipal legislation, much doubt is felt. ’ ’

A parallel ruling is found in Jennings Heights Co. v. St. Louis, 257 Mo. 291, which was an action to cancel tax bills for sewers on the ground of fraud, and that the sewers as constructed were larger than necessary. In ruling on these contentions, the court said: ££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, in 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 or oppressive.”

The following cases announce the same general doctrine: Moberly v. Hogan, 131 Mo. 19; McGhee v. Walsh, 249 Mo. 266; French v. Barber Asphalt Co., 181 U. S. 324.

We had occasion in St. Louis v. United Railways, 263 Mo. l. c. 455, in what is sometimes designated as the ££Mill Tax Case,” to discuss somewhat elaborately the reasonableness of municipal enactments and, as necessarily incident to that discussion, the extent of the power of municipalities in regard thereto. The conclusion deduced from a review of numerous authorities was that, if an ordinance, as in the case at bar, was enacted authorizing a tax under a power conferred by a city’s charter, and not in contravention of organic law, it will be held valid and the courts will be slow to interfere with its operative force; that municipal corporations are primarily the sole judges of the necessity of ordinances and the courts are loth to review their unreasonableness, if passed in strict accord with an express grant (p. 456).

II. The presumption attending the acts of city officers in the exercise of the power here in question is pertinent in this connection. We .said, most recently in McGhee v. Walsh, 249 Mo. l. c. 294, that we must, prima-facie, presume that they [the city officers] acted rightly, and we must presume that, in the future, they will so continue to act, and that they will promptly do and perform their several duties, under the charter of the city.”

The foregoing was but a reaffirmance of the earlier case of Seaboard Nat. Bank v. Woesten, 147 Mo. l. c. 481, where we said: “It may be said here, that municipal officers, under the charter of St., Louis are selected, presumably, on account of their fitness and integrity. They have no private ends to subserve. We should, therefore, presume that their intentions are honest, and that, in the performance of their public duties, they deal fairly and justly Avith the citizen and property owner. ’ ’

While in terms this has reference to a particular municipality, the general application of the rule is beyond question.

Despite the general power thus conferred upon municipalities, the latitude of its exercise and the reluctance of courts to interfere with same, it is nevertheless contended by appellants that their property should not be assessed because owners of property on another part of the street previously improved had not been assessed, and that the burden of taxation was therefore not equalized, and that the ordinance authorizing same was consequently invalid as a denial of the equal protection of the laws, within the meaning of Section 1 of Article XIV of the Federal Constitution. The ruling of the St. Louis Court of Appeals,, in Kemper v. King, 11 Mo. App. l. c. 127, 129, is apposite in determining whether the contention here made is sound. In the Kemper case, a portion of a street had been paved and the abutting property assessed therefor. Later another portion — that involved in the opinion — was paved. The abutting owners in the second improvement contended that their assessments should be equalized with assessments made on other portions of the street, since the street was an entirety, and that owners of property thereon should be treated alike, and should pay at the same rate. The court refused to sustain this contention, since the two sections of the street had been improved at different times, and were therefore different and distinct improvements which might be separately considered, as to the council seemed best. In ruling upon the question (p. 127.) the court said: “We hold that when a municipal corporation is clothed with a general power to improve its streets, it is a matter of discretion, judicial or legislative in its nature, for the city council to determine when, in what manner, and to what extent any street improvement shall be made; that in the exercise of this discretion the city council is not bound to contract for the improvement of an entire street in order to acquire the right to charge the cost of such improvement upon the abutting property owners; but that they may, in their discretion, contract for the improvement of the street for any number of blocks, or for the length of a single block.; and. that this is a discretion which can not be revised by the judicial courts, unless possibly in extreme cases where there has been manifest abuse.” And at page 129: “Public improvements must go on; and if the courts of justice, in their anxiety to protect property owners from a reckless or oppressive exercise of this power, hamper its exercise with unreasonable or impracticable rules, it will result that municipal corporations will not be able to let out contracts for such improvements, at a cost which fairly represents their value, and that none will bid for such contracts except at prices at which they can afford to assume the speculative chances of unfriendly litigation.”

Rulings of courts of last resort in other jurisdictions affirm the doctrine announced in the Kemper case.

The case of McChesney v. Chicago, 152 Ill. 543, 38 N. E. 767, identical in principle with the case at bar, gives affirmative expression to the rule. There the city had previously extended certain water mains and paid for same out of general water department funds. They now propose to make further extensions to he paid for by assessments against abutting property. An appeal was taken from the confirmation of such assessments, but the court supported them and held that such a change in the method of paying for extensions was not discriminative or oppressive.

In Murphy v. People, 120 Ill. 234, 11 N. E. 202, a sewer system had been paid for out of general city funds. The cost of the present extension was assessed against abutting property. The objection that this was not uniformity was rejected by the court.

In Shelby v. Burlington, 125 Iowa, 1. c. 352, suit was brought to enjoin the city. from improving a street out of general funds because previously such improvements had been- paid for by assessments against abutting property. The court held that: “Appellant’s argument, carried to its logical end, would tie the hands of the Legislature for all time. That is to say, having adopted the theory of special assessments, it could never depart therefrom; and, vice versa, if it authorized payment for street improvements out of the general city funds, it could never resort to special assessments. This, of course, cannot be the law.”

In the case of Ottumwa Brick Construction Co. v. Ainley, 199 Iowa, 386, 80 N. W. l. c. 511, the city provided for paving a certain street to be paid for by special assessments. Some of the property on the street not being worth anything, the city guaranteed the tax bills issued against such property, and this in effect amounted to-payment by the city for that portion of the improvement. This Avas objected to by the other property owners assessed for this improvement. It was held that the city may thus pay part of the cost of the improvement out of its general funds. In so ruling, the court said: “There is nothing in the law to prevent a- city, whose finances will admit of so doing, from paying for improvements like that in question out of the general fund. If it can lawfully pay for a whole, it can for a part.”

In the case at bar, Kansas City had previously provided for the repaving of a portion of Linwood Boulevard and paid for the same out of the general fund. At a later time, in an entirely different proceeding, it provided for repaving another portion of the Boulevard to be paid for by special assessments against the abutting property. The city had been given specific power to proceed by either method. No showing of fraud was made or suggested, and it must be presumed that the city authorities had good and sufficient reasons for proceeding by different methods in these two different proceedings. Their decision in the matter should be conclusive, for any other rule would tie the hands of the city and impede, if not prevent, public improvements.

III. It is further contended by necessary implication from the allegations of the petition, although not definitely so stated, that the ordinance and charter provision under which it was enacted, by virtue of which the earlier improvement' of a portion of Linwood Boulevard was made, constituted a contract with abutting property owners who had paid taxes therefor, which will be impaired if the same property is burdened with taxes for the present improvement. The difficulty confronting appellants in attempting to sustain this contention is that a statute conferring power upon a municipality to provide for the construction, maintenance or repair of streets does not constitute a contract. In Dillon on Munic. Corp. (5 Ed.) p. 2581, the rule is thus declared: “Charter provisions,.which only confer authority upon the municipality to make original construction or paving of the city streets at the expense of the abutters, and which require the city .to bear the expense of reconstruction and repaving, do not constitute a contract with an abutter who has paid an assessment for original construction or repaving, that his property shall be exempt from assessment for repaving or reconstruction, and the legislature may repeal or amend such provisions at pleasure without impairing any contract right of the abutter or affecting any vested right. ’ ’

Our own court follows the unbroken current of authority, as thus announced. In Houck v. Drainage Dist., 248 Mo. 1. c. 394, a statute in force at the time of the original organization of the district provided for an assessment to be made and determined according to benefits found. Later, the law was changed so as to authorize a board of supervisors to levy on each acre of land in the district not to exceed twenty-five cents per acre. In discussing the validity of the change thus made, the court said: “It is contended that the section in question is void because it creates a rule of taxation not in existence at the time the defendant drainage district was organized» and the plaintiffs became members of it, and it is therefore retrospective as to them and impairs the obligation of contracts constituted by its charter . . . We do not hesitate, however, to say that the charter of a public corporation does not constitute a contract with its members that the laws it was created to administer will not be changed; and the State is still at liberty, as to them and the corporation, to continue its efforts to improve 'its methods of taxation with respect to these subjects.”

Further, to the same' effect, in Miners Bank v. Clark, 252 Mo. 20, l c. 32, we said: “Did the city, by accepting the deed from Clark in 1901, contract away its right to later order said street improved at the expense of the abutting property, owner, even though the grantor in said deed be the property owner when the improvement is later made? Unless the- law constituting its charter gives such right, a city cannot contract away its right and power to levy special assessments for street improvements, and thereby create an exemption from such assessments. . . . The charter of cities of the third class does not give such power. In fact the legislative right to give such power-might well he doubted — a point however, which we do not decide. It is true, as asserted by appellant, that a city of the third class may acquire title to land for street purposes; but we know of no rule which authorizes the city to surrender, as the purchase price of a street, its right to order that street improved in any manner authorized by law. If, therefore, the city did dispose of its right to order the street improved in the manner exercised in the present suit, it could by properly exercising that power issue valid- special tax bills.”

In Tilden v. Mayor, 56 Barb. (N. Y.) l. c. 361, the Court of Appeals of New York said; “The supposed contract lacks one essential element of a valid agreement, viz., a consideration. By the statute of 1813, the mayor, aldermen and commonalty were authorized, among other things, to direct the paving of streets, and to assess the expense upon the property owners or occupants of houses and lots benefited. Under this provision the owners could have been compelled to pay the expense of the pavement laid dowm in 1824, and therefore the promise of the corporation to bear the expense of future repairs and pavements was without consideration. The owners lost nothing by what occurred; they simply paid what by law they could have been obliged to pay, and it has never béen held that the performance of a legal duty, or the payment of a legal liability, furnished any consideration to support a promise. ’ ’

In Ladd v. Portland, 32 Ore. 271, 51 Pac. 654, under a state statute, it was provided that after a street in East Portland had been improved, under and by virtue of the provisions of the chapter in which that section appeared, thereafter that street or any part thereof should not be subject to be again improved, but might be repaired. A street in East Portland was improved under that law, and the cost charged against abutting property owners. Afterwards East Portland was consolidated with the City of Portland. In 1893 the consolidated city was given a new charter, all vested rights being preserved. Under the new charter the council was authorized to improve any street, or part thereof, and assess the cost on the abutting property owner. The street in question was improved under this provision of the charter and plaintiff sought to enjoin the collection of assessments on account thereof, relying on the provision of the old charter of East Portland under which the original improvement was made. The Supreme Court of Oregon in sustaining a judgment of the lower court refusing an injunction, said, at page.275; “The power to assess the costs of the improvement of a street upon abutting property is embraced within the sovereign power of taxation primarily in the Legislature, but which it may constitutionally delegate to local municipal governments, with or Avithout restraints or limitations; but it is never presumed to be relinquished unless . the intention to relinquish is declared in clear and unequivocal terms. [Railroad Co. v. Maryland, 10 How. 394.] And even then, if'the exemption is not supported' by some consideration, it may be revoked at any time. [Rector of Christ Church v. County of Philadelphia, 24 How. 300.] The charter of East Portland, under Avhich the first improvement was made, was a partial delegation of such power to the city, and, when once exercised, was exhausted — not, hoAvever, by reason of any contract between the public and the lot owner, nor because the power of taxation in the State was not adequate to require an assessment for their reimprovement of the street, but because the power delegated to the city had by its express terms ceased to exist. And how can this provision of the charter be tortured into a contract? It does not purport to be one, for it makes no offer of exemption to the landowner, either expressly or impliedly, in consideration of the performance of some voluntary act on his part; nor does it ask or agree to accept, anything from him which the State could not have unconditionally exacted. The assessment of the cost of improving the street in front of his property was an exercise of soveignty, and a proceeding in invitum. He was simply required to discharge a duty which he owed to the public, and the performance of which cannot by any show of reason ho construed into a consideration moving from him to the State upon which a contract can be supported. The validity of assessments for local improvements is sustained on the theory of special benefits corresponding-in value to the cost of the improvement, and so the property owner receives, in theory at least, full value for the money exacted of him; and therefore, plaintiffs’ predecessor, in paying the assessments made against his property for the first improvement of the street, sacrificed no legal right, nor did he make any extraordinary or unusual contribution to the public. He simply paid for the special benefits conferred. The manifest purpose of the provision of the charter under consideration was to define the mode and extent of the power of the council in the matter of street improvements, and the limitation on the exercise of such power was a mere concession to the citizen, and an act of grace, and not a contract by which the State forever relinquishes the sovereign power of taxation. It was a limitation voluntarily imposed by the Legislature upon the powers of the city, which that department of the State government could remove at any time public policy or the interests of the municipality might seem to demand, and bound the State only so long- as the statute remained unrepealed.”

In Carstens v. Fon du Lac, 137 Wis. 465, 119 N.W. 117, property owners sought to enjoin the city from selling- assessment certificates against property abutting on a street, which certificates had been issued for paving thereon. The law under which the paving- was done. provided for the charging of two-thirds of the cost to abutting property, and one-third to the city, and added: “Provided, however, that the provisions of this sub-division shall not apply to a second or subsequent repaving, macadamizing or graveling of any street which has been heretofore or which shall bo hereafter paved, macadamized or graveled, and the whole or any portion of the expense of such improvement shall have been borne directly by the lots or parcels of land fronting or abutting on the portion of the street so improved.” Subsequently, under a general charter law, the city repaved the street and attempted to charge it to the property owners. In sustaining the dissolution of a preliminary injunction, the Supreme Court at page 470, said: “The compliance with a statutory duty enjoined upon the lot owners did not create a contract by operation of law which exempted the plaintiffs from further special assessments for the cost of street paving. [City of Rochester v. Rochester Ry. Co., 182 N. Y. 99, 79 L. R. A. 773.] Neither did the 1885 statute give any vested right to exemptions from further special assessments on account of repaving. At best, all the law did was to prohibit such assessments as long as it remained in force. It was subject to amendment in this regard, and was amended by the adoption of the portion of the general-, charter law which related to street improvements in lieu of the provisions of the special charter.”

The rule announced in the cases cited and abstracted, that the charter of a municipality does not constitute a contract with its members that the laws it was create'd to administer will not be changed, is stated with sufficient definiteness and declared with such unanimity of opinion, that it is unnecessary to do more than cite, in addition, some of the numerous cases from other courts in which it has been approved; and, as a corolláry thereto, that a municipality may by appropriate legislation continue its efforts to improve methods of taxation with respect to the subject here under consideration: State v. Mayor of Newark, 37 N. J. L. 415; Bradley v. McAtee, 7 Bush (Ky.) 667; Wis. & Mich. Ry. Co. v. Powers, 191 U. S. 379; Grand Lodge v. New Orleans, 166 U. S. 143.

IV. It is' further contended that this improvement is maintenance work, and that it should have been paid for out of the' funds of the Park District for that purpose, in which the boulevard is located. , ,. . This, plainly put, is an assumption not justified by the record. The petition alleges that the special tax bills were issued to pay for the improvement of Lin wood Boulevard. These tax bills import primafacie validity, and are evidence of the liability of the property for the charges made therein. It is expressly provided in Section 24 of Article VIII of the present city charter (compilation of 1909, hot. p. 339) every tax bill shall in any suit thereon be prima-facie evidence, of the validity of the bill, the doing of the work and of the furnishing of the'material charged for, and of the liability of the land to the charges stated in the bill.” This authorizes the presumption that the proceedings leading up to and consummating in the issuance of the tax bills were regular and proper. If we look to the resolution under which the work was authorized, as disclosed by the petition, we find it is expressly alleged that the boulevard shall “be paved the full width thereof with bituminous pavement macadam, and the approaches to the cross streets with asphalt;” and that the ordinance for the work should provide, as it did, for the doing of same as provided in the resolution. In the presence of these allegations, it must be presumed that the charter provision requiring plans and specifications of the work as thus indicated, was, in the absence of any allegation of failure, adopted, or in other words, that the procedure conformed to the requirements of the law. This being true, the conclusion follows that this constituted an improvement or repaving of the boulevard rather than a mere maintenance, and that the contention of appellants is more of a conclusion of the pleaders, not admitted by the motion for a judgment on the pleadings, than a statement of a fact. It is elementary that only facts well pleaded are admitted by a demurrer or motion wbicb raises an issue of law. [State ex rel. U. S. Fidelity Co. v. Harty, 208 S. W. 835; Brennan v. Cabanne Avenue M. E. Church, South, 192 S. W. (Mo. Sup.) 982; Novinger Bank v. St. Louis Union Tr. Co., 189 Mo. App. 826.]

Furthermore, the only allegation of fact in the petition in regard to the character of the work is that wherein it is stated that it consisted of “putting a top dressing on said boulevard.” This, according to the usual signification of the words employed, means resurfacing, which is a paving or repaving, and not maintenance. [Jones v. Plummer, 137 Mo. App. 337.] However, a complete answer to this contention is that whether this work be classified as maintenance or a paving or repaving, the city has the same authority in one case as in the other. Under Section 31 of Article 13 of the charter, supra, the payment of the cost of one may be provided for in the same manner as the other, viz.: by special assessment.

Y. A resume of the contentions here made against the validity of this proceeding is, that under Article 10, Section 31, of the Charter of Kansas City of 1889, a boulevard, after construction, can only be maintained at the expense of the park district. This section is as follows: “Provided, further, that when any parkway or boulevard has been constructed at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the park district in which the same is situated or out of the general park fund.” In support of this contention, it is urged that the former work upon the boulevard having been done under this section, a contract right was thereby created with abutting property owners that all subsequent work would be done under the same authority; and despite the' fact that ' other means for paying for like work were provided for by a subsequent charter, that said section remained operative and exclusive as to improvements on the boulevard. We have shown that this section did not create a contract right, and that such a right was not impaired by the adoption of the new charter; and that the operative force of 'the section only prevailed so long as the charter of which it was a part was in existence, no longer.. This being true, the provisions of the present charter, Section 12, Article 18, Charter of 1909, bot. p. 482, does not admit of the construction given it by appellants in that no such “right or liability was acquired or accrued” under the former charter, as is meant by this section, which is as follows: “The repeal of any law by the provisions of this charter shall not in anywise be so construed as to affect any right or liability acquired or accrued thereunder by or on the part of the city or any person or body corporate. And this charter shall not in any manner affect any right, lien or liability accrued, established or subsisting under and by virtue of the previous charter or any amendments thereto . . .Nor shall this charter be in any wise so construed as to affect the right or liability acquired or accrued under the previous charter and amendments thereto, or on the part of the city or any person or body corporate.”

The interpretation sought to be given Section 31 of Article X of the former charter, and the application thereto of Section 12 of Article 18 of the present charter, would absolutely, prevent any change in the new charter which imposed any other or different obligations upon persons or property of a city, than those theretofore existing. This is foreign to any reasonable construction of the law on this subject. The right of cities to frame their charters and, as a consequence, to change them, is a continuing right (Morrow v. Kansas City, 186 Mo. 675), which would be nullified under appellants’ construction.

We find no further contentions entitled to our consideration.

For the reasons stated, we are of the opinion that the petition does not state a cause of action, and the judgment of the trial court is affirmed.

It is so ordered.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    THE STATE ex rel. G. A. McBRIDE v. FRANK SHEETZ, Appellant.
    Division One,
    July 9, 1919.
    1. DRAINAGE DISTRICT: Sufficiency of Petition. It was unnecessary for the petition praying for the organization of a drainage district under the Act of 1905, to state whether the ditch was to be open or closed.
    2. -: Report of Viewers: Actual View. The Act of 1905, did not require the report of the first board of viewers of a drainage district to show an actual view of the proposed improvement. However, the report in this case, when fairly construed, does show an actual view.
    3. -: Notice. If the first notice to the landowners described the proposed ditch exactly as it was described in the report of the first viewers and in the petition, and gave notice that the report had been filed, it was sufficient.
    4. -:--: Description of Lands. The second notice to land- . owners, required by Section 5587, Revised Statutes 1909, is not required to describe the lands to be affected by the organization of the drainage district by the county court. The report mentioned in that section is that of the second board of viewers provided for by Section 5584, which requires the report to be accompanied by a plat showing the separate tracts affected and the names of their owners, and if the plat correctly describes the lands a misdescription in the second notice of certain lands is immaterial, especially if the misdescription consisted of an error giving a township number as 56 instead of 57, which error, being clerical, was subject to correction upon the face of the report.
    5. -: Estimate' of Costs.. The estimate of the costs of the improvement can be shown by the plat and profile filed with the viewers’ report. ' ■

      6. -: Notice of Hearing Before Viewers: Due Process. A special notice to the landowners of their right under Section 5585 to “appear before the viewers and freely express their opinions on all matters pertaining thereto” is not required, where the landowners are in court by proper notice when the viewers are appointed and notice is given of a hearing after their report is filed.
    7. -: Notice of Bond Issue. The statute does not require specific
    notice that a bond issue is contemplated as a method of securing funds; and if the petition contained a prayer for the issuance of bonds in statutory form and notice of the pendency of the petition was given, that was all that was required. Besides, a lack of authority to issue bonds is no defense to a suit to collect an installment tax.
    8. -: Organization: Collateral Attack. The validity of the incorporation of a drainage district is not open to collateral attack; and where there has been a colorable effort, in good faith, under a valid law, to incorporate the district, and it has been and is exercising powers vested in such public corporations and the State has not attempted to inquire into the legality of its organization, the illegality of its organization cannot be shown as a defense in a suit for taxes levied by it.
    9. -: Assessor’s Book: Collection of Tax. There can be no valid drainage district tax without a valid assessment; but the ditch assessment book required by Sec. 5602, R. S. 1909, has no relation to the assessment of drainage taxes. Under the Act of 1905 the assessment is made by the county court, and its basis is the report of the viewers and engineer confirmed by the court; and its validity is in no way dependent upon the ditch assessment book, which the clerk is required to make up, but his failure to perform that duty does not render the tax uncollectable.
    10. -: Taxes: Limitations. The plea of the Statute of Limitations to a suit brought in October, 1914, for the drainage taxes of 1910, 1911, 1912 and 1913, is unavailing.
    Appeal from Livingston Circuit Court. — Hon. Fred Lamb, Judge.
    Affirmed.

      S. L. Sheets for appellant.
    (1) Where the proceedings establishing a drainage district are void, they may be attacked collaterally. Drainage Dist. v. Ackley, 270 Mo. 172; State ex rel. v. Arcadia Timber Co., 178 S. W. (Mo.) 93; Donner v.~ Board, 278 111. 189; Gibson v. Drainage Dist., 191 S. W. (Ark.), 908; Williams v. Osborne, 104 1ST. E. (Ind.), 27. (2) Every fact essential to tbe jurisdiction of the county court to establish a drainage district' must be shown affirmatively on the record. State ex rel. v. Wilson, 216 Mo. 277; Wayne City Drainage Dist. v. Boggs, 262 111. 338; Railway Co. v. Young, 96 Mo. 42; State ex inf. v. Colbert, 273 Mo. 208. (3) Where the petition, as here, is to construct a ditch to drain lands, such petition is insufficient to confer jurisdiction to straighten a water course. Where the word “ditch” is defined by the statute to include both covered and open drains, the petition must set forth whether the ditch is to be open or closed to confer jurisdiction. Wayne City Drainage Dist. v. Boggs, 262 111. 338; People v. McDonald, 264 111. 514. (4) Where the statute requires an actual view of the lands along and adjacent to the proposed ditch, the record must show that fact. Marsh v. Supervisors, 42 Wis. 502. (5) Presumption of right acting is not indulged to support special statutory proceedings in invitum. Mechem on Public.Officers (1 Ed.), sec. 581; Ellis v. Pac. Railroad Co., 51 Mo. 200; Zimmerman v. Snowden, 88 Mo. 218; Drainage Dist. v. Campbell, 154 Mo. 157. (6) The first notice to landowners did not set forth the report of the engineer and viewers as required by the statute, and the description of the proposed location of the ditch is so indefinite as to render the subsequent proceedings based thereon void. State ex rel. v. Wiethaupt, 254 Mo. 319. (7) The fact that all the land in one township was misdescribed in the second notice to landowners, being about 1200 acres out of a total of 7573.96 acres, renders all proceedings herein void, and the assessments sued on invalid. State ex inf. v. Colbert, 273 Mo. 1.98; Paschal v. Swepston, 179 S. W. (Ark.) 339; Keystone Drainage Dist. v. Drainage Dist. 180 S. W. 215; Norton v. Bacon, 158 S. W. (Ark.) 1088; McRaven v. Clancy, 171 S. W. 88. (8) Where resort is had to constructive service of notice, a substantial, even rigid observance of the law is required, otherwise the judgment will be void. No notice was given that the proposed improvement would be paid for by a bond issue. Bobb v. Woodward, 42 Mo. 489; Winningham v. Trueblood, 149 Mo. 586; Stewart v. Allison, 150 Mo. 346; Turner v. Gregory, 151 Mo. 100; Leslie v. St. Louis, 47 Mo. 474. (9) The statute requires an estimate of the cost of location and construction of the improvement; and an apportionment of the same to each tract. No estimate was ever made so far as any record thereof can be found, and the county court acquired no jurisdiction of the proceedings. Hamilton on Special Assessments, sec. 524; Morgan Creek Drainage Oomm’rs. v. Hawley, 240 111. 465. (10) There must be a valid assessment, its entry upon the tax book and failure of the owner to pay, to make a good cause of action. State ex rel. v. Wilson, 216 Mo. 287. No assessments were entered in a ditch assessment book as required by Sec. 5602, R. S. 1909. (11) The drainage law, “is a code unto itself,” and the special Statute of Limitations therein of six months should be upheld. Drainage Dist. v. Ackley, 270 Mo. 173. (12) There was no notice given landowners that they could appear before the viewers at any time or place, as provided by Sec. 5585, R. S. 1909. Hamilton on Special Assessments, sec. 354; State v. Road Comm’rs., 41 N. J. L. 83.

      W. T. Rutherford, Forrest M. Gill and Paul D. Kitt for respondent.
    (1) This suit is for the collection of delinquent assessment for drainage tax, and the legality of the proceedings leading up to the incorporation of the drainage district cannot be inquired into in this collateral proceeding. State ex rel. v. Eicher, 178 S. W. 173; State ex rel. v. Wilson, 236 Mo. 215. (a) The tax bill in this case was prima-facie evidence of the amount due and the .liability of appellant’s laud for the taxes. Secs. 5599-5600, R. S. 1909; State ex rel. v, Birch, 186 Mo. 205. (b) A drainage district is a municipal corporation, a public corporation, and the legality of its incorporation cannot be inquired into collaterally in á suit to collect back taxes; quo warranto is the only proceeding to question the legality of public corporations. State v. Fuller, 96. Mo. 165; Church v. Tobbein, 82 Mo. 418; Burnheim v. Rogers, 167 Mo. 171; School Dist. v. Hodgins, 180 Mo. 70; Barnes v'. Construction Co., 257 Mo. 192; State v. Colbert, 273 Mo. 209; State v. West, 272 Mo. 317; State v. Young, 255 Mo. 637; State v. Blair, 245 Mo. 680; Bonderer v. Hall, 205 S. W. 542; State v. Eicher, 178 S. W. 174; Drainage Dist. v. Ackley, 270 Mo. 157. (c) The proceedings in the organization of this district are legal and fully comply with the statute under which said district was organized. Secs. 5578-5.592, R. S. 1909. (2) Appellant was duly notified by publication, as required by statute (Sec. 5587), of the filing of the report of the viewers assessing benefits against his land and of the time set for hearing thereon. The court acquired jurisdiction of the person of the appellant and of the subject-matter. Secs. 5587-5592, R. S. 1909; State ex rel. v. Blair, 245 Mo. 680; Barnes v. Construction Co., 257 Mo. 192; State ex rel. v. Wilson, 216 Mo. 274; State v. Eicher, 178 S. W. 171; State ex rel. v. Neville, 110 Mo. 348. (a) The county court, by its' judgment, found that the appellant was duly served with notice of the assessment of benefits on his land. This judgment is conclusive on appellant, and is not subject to attack in this proceeding. State ex rel. v. Eicher, 178 S. W. 1.73; State ex rel. v. Wilson, 216 Mo. 215. (3) The report of the first set of viewers conforms in all respects to the provisions of Sec.- 5580', R. S. 1909, and shows that the viewers complied with the provisions of that section. (4) The first notice to landowners, given under the provisions of Sec. 5581, R. S. 1909, complies with all the essential ' requirements of Section 5581; the place of beginning, route and terminus of the proposed ditch and the time fixed by the court at which the petition and report would be heard, are set forth in the notice. (5) The lands of the appellant are located in Sections 18 and 7, Township 56, Range 24. The notice to landowners of the report of the viewers assessing benefits on appellant’s lands names appellant and correctly describes appellant’s lands, and appellant has no grounds for complaint that the notice misdescribes his land. Appellant was duly notified of the assessment of his lands in this district and was notified of the date of hearing thereon. ,Sec. 5587, R. S. 1909; State ex rel. v. Blair, 245 Mo. 680; Barnes v. Construction Co., 257 Mo. 192. (6) It makes no difference whether notice of the issuance of bonds was made, appellant was not injured by the issuance of bonds. The petition asked for the issuance of bonds. Sec. 5579, R. S. 1909. The issuance of the tax bill in this case was authorized, and all assessments on appellant’s lands drew 6 per cent from the date of the confirmation by the cou.it until paid, and it could make no difference whether the money collected from the assessments is paid in discharge of the debt evidenced by bonds, or by the contract of construction without the bonds or by warrants issued. The amount in either event would be the same and the issuance of bonds could not prejudice or injure the appellant in any way. Secs. 5598-5599-5600, R. S. 1909; State v. Eicher, 178 S. W. 173. (7) An estimate of the cost, location and construction of the improvement was made by the viewers as is shown by the report of the viewers. (8) The statute (Sec. 5579) does not require that the petition shall state whether the ditch is to be an open or closed ditch. State ex rel. v. Taylor, 224 Mo. 453. (9) The taxes in question were not barred by the Statute of Limitations. Sec. 5599, R. S. 1909; Drainage Dist. v. Bates Co., 269 Mo. 78; State v. Wilson, 216 Mo. 291.
   BLAIR, P. J.

Defendant appeals from a judgment rendered by the Livingston Circuit Court in a suit for drainage taxes. The district was organized in 1999.

I. (1) It was unnecessary for the petition praying for the organization of the drainage district to state whether the ditch was to be open or closed. The statute then in force (Sec. 5579, R. S. 1909) required no such allegation. [State ex rel. v. Taylor, 224 Mo. l. c. 415, 416 et seq., and cases cited.] The cases cited from other states were decided under materially different statutes. (2) The report of the first board of viewers (Sec. 5580, R. S. 1909), when fairly construed, shows it was the result of an “actual view” of the proposed improvement. It shows a “thorough examination” of the proposed drainage system from end to end and was accompanied by a plat showing “the line examined by” the viewers. Further, the .statute does not require the report to show an actual view. We think it does so, nevertheless. The point is ruled against appellant. The case of Marsh et al. v. Supervisors, 42 Wis. l. c. 514, et seq., was decided under an assessment statute which specifically required the assessor to make affidavit that he had actually viewed all real estate assessed. No affidavit of any kind was made. The principle of that decision is not relevant to the question here. (3) The first notice to the landowners described the proposed ditch exactly as it was described in both the report of the first viewers and the petition. It also gave notice that the report had been filed. The decision in State ex rel. v. Wiethaupt, 254 Mo. 319, turned upon the fact that the description of the proposed improvement in the first notice and the description in the report of the viewers were materially different. That decision announces no principle which condemns the notice in this case. Notice of the report is required and in this case was given by stating that it was filed, and, among other things, recommended the establishment “of said ditch.” The “said ditch” was described in the notice just as in the petition and in the report. The objection is untenable. (4) It is contended the second notice to landowners misdescribed several hundred acres of the land in the district. This notice was prescribed by Section 5587, Revised Statutes 1909. The statute required the notice to be “directed by name to every person returned by the engineer and viewers as the owner of every lot and parcel of land affected by the proposed improvement or of any interest therein, and also by name, to all others, who it may be ascertained own such land or any part thereof, and also generally to all other persons, without mentioning their names, who may own such land, or any part thereof, or any interest therein, notifying them of the general object and nature of the petition and report of the engineer and viewers, and that, on the day so fixed, the county court will hear said petition and report of the engineer and viewers,” etc. There is no requirement that the notice describe the lands at all. Notice of the pendency of the petition and of the report of the first viewers had already been given, and all interested parties were affected thereby. The report mentioned in Section 5587 is that of the second board of viewers, provided for by Section 5584, Revised Statutes 1909. That section required the report to include or be accompanied by a plat, which was required to show the separate tracts affected and the names of the owners thereof. No other report of the lands affected was required by this section. There is no contention this plat did not correctly describe the lands. Further, the point that a misdescription occurred is based-upon an order of the county court requiring township “57” to be substituted for “56” on “page 138 thereof” (of the report), and nothing appears to show how this affected' the description of any of the lands in the district or that it in any way affected appellant’s land. It was apparently a clerical error which was subject to correction from the face of the report itself, for the reasons given this contention must be overruled. (5) The report shows a plat and profile showing the estimated cost of the improvement were filed with the report, and the court found these estimates correct. The objection that-no estimate was made is not sustained by the record. (6) Section 5585, Revised Statutes 1909, provides that any landowners affected “may appear before the viewers and freely express their opinions on all matters pertaining thereto.” It is argued that notice of this right should have been given. The act required no special notice thereof. The parties were in court when the viewers were appointed and ordered to view the proposed improvement and mark out its line, etc. They were at liberty to appear before the viewers. Notice was required and given of the hearing on the report and full opportunity afforded to except to the report, This notice satisfied the due process of law clause so' far as the report is concerned. (7) It is urged that no notice advised appellant that a bond issue was contemplated as a method of securing funds. The statute did not require specific notice- of this intention. Notice of the pendency of the petition was given, and the petition contained a prayer for the issuance of bonds in statutory form. This was all that was required. Further, this court has held that even if there was no authority to issue bonds at all this would be no defense to a suit for the collection of an installment of the tax. [State ex rel. v. Eicher, 178 S. W. l. c. 174.]

II. There is another adequate, single reason for the conclusion that the questions discussed in Paragraph' 1 cannot aid appellant.

There can be no doubt there was at least a color-able effort, in good faith, under a valid, existing law, to incorporate the drainage district; that the district has been and is exercising powers invested such corporations, and that the State has not attempted to inquire into the legality of its organization. The validity of the incorporation is not open to collateral attack in a suit for taxes. [Kayser v. Trustees of Bremen, 1.6 Mo. l. c. 90; Stamper v. Roberts, 90 Mo. 683; Orrick School District v. Dorton, 125 Mo. l. c. 443; City of St. Louis v. Shields, 62 Mo. l. c. 251, 252; State ex rel, v. Blair, 245 Mo. l. c. 687; Burnham v. Rogers, 167 Mo. l. c. 21; State ex rel. v. Birch, 186 Mo. l. c. 219.]

III. It is contended no ditch assessment book was made up as provided in Section 5602, Revised Statutes 1909, and, for that reason, the judgment cannot stand. Under the general- revenue law the assessor’s book (Sec. 11370, R. S. 1909) embodies the result of the assessor’s action, and “a fair compliance with” the statutory provisions respecting it jg essential to the validity of the tax; this is true because “an assessment is indispensable to the levy of a valid tax” (State ex rel. v. Schooley, 84 Mo. l. c. 452), and the assessor’s book, as corrected by the boards of equalization, is the very foundation of the assessment made for general taxes. [Sec. 11407, R. S. 1909.] It is quite as true that there can be no valid drainage tax without a valid assessment. In the case of drainage taxes in suit, however, the ditch assessment book had no relation to the assessment itself. That' assessment was made by the county court (Secs. 5599 and 5601, R. S. 1909) and became a lien upon the lands in the district in the proportion the sums assessed bore to the total benefits assessed. The basis of the assessment was the report of the viewers and engineer as confirmed by the court. The ditch assessment book required by Section 5602, supra, could be only a tabulation of assessments already made and already a lien by express statute. It was enacted (Sec. 5600, R. S. 1909) that the general la>w should apply. Under that law informalities even in the assessment do not invalidate the tax. [Sec. 11383, R. S. 1909; State ex rel. v. Wilson, 216 Mo. l. c. 287.] The assessment of the drainage tax under the Act of 1905 (Sec. 5602, R. S. 1909) was wholly independent of the ditch assessment book. The validity of the assessment in no way depended upon the hook. The clerk should have performed his duty and made up the book, but if he did not that does not render the tax uncolleetable. It falls within the rule that regulations designed to secure order, dispatch or system in proceedings for the assessment and enforcement of taxes are not mandatory in the sense that disregard of them invalidates the tax or prevents its recovery. [State ex rel. v. Phillips, 137 Mo. l. c. 265.]

IV. This suit was brought October 7, 1914, for the taxes of. 1910, 1911, 1912 and 1913. The plea of the Statute of Limitations is unavailing. [Drainage Dist. v. Bates Co., 269 Mo. l. c. 91.]

The judgment is affirmed.

Graves, J., concurs; Bond, J., concurs in Paragraph 2 and the result; Woodson, J., absent.