I respectfully dissent from the holding in the principal opinion that the relator is not entitled to a writ of mandamus against the respondent board of supervisors, to enforce the levy of benefit taxes under Sec. 123401 in a sum sufficient to pay relatrix' judgment against the respondent drainage district, recovered in the first "Jacoby case"2 mentioned in the principal opinion. It was held in that case that the judgment is payable out of *Page 1012 such benefit taxes, the preliminary flat tax of 50c per acre under Sec. 12333 having been exhausted and the district being without funds. And the Jacoby case was followed and approved on that point in the Quigg case3 decided only a little over a year ago.
The conclusion of the principal opinion that mandamus will not lie is based on the following facts. The relatrix' petition for mandamus alleges, among other things; that the Federal Government has established a game refuge in the district occupying three-tenths of its area; that the present plan for reclamation is thereby rendered impossible of consummation; that under existing conditions the cost of construction would exceed the benefits; and that the district and its supervisors nevertheless have failed to proceed with the original plan, or some other, or to issue bonds, or to take steps through the landowners for its dissolution, as permitted by Sec. 12361. The respondents' return admits these facts and alleges the board of supervisors have no authority to levy a benefit tax because the intrusion of the Federal Government has thwarted the whole project, abated the drainage district proceeding in the circuit court and rendered it null and void as to all the landowners in the district.
The principal opinion upholds this contention, as does the concurring opinion of Hyde, J. The view taken in both opinions is that since the parties on both sides concede the interference of the Federal Government has made impossible the consummation of the original plan for reclamation, therefore no benefit tax can be levied under Sec. 12340, unless some new plan for reclamation be adopted or the district be dissolved. The principal opinion refers to the provisions in Sec. 12361, supra, authorizing a majority (in acreage) of the landowners in the district (not the supervisors) to institute a proceeding in the circuit court for the dissolution of the district, this statute making it a condition precedent to such dissolution that the district's debts be paid. The opinion then, in effect, warns the landowners that relatrix' judgment will stand as a cloud on their titles unless the district is dissolved, in which event relatrix' judgment will have to be paid by a tax levy.
The effect of both opinions is that relatrix cannot now compel the levy of a benefit tax under Sec. 12340 or a uniform acreage tax under Sec. 12361, but must wait until a new plan for reclamation is adopted, or a majority of the landowners voluntarily prosecute dissolution proceedings. She and her husband have already waited over 16 years since the district was fully incorporated in November, 1928. How much longer will she have to wait; and is it true that no benefit tax can now be levied under Sec. 12340? — conceding that in the absence of *Page 1013 fraud she cannot by mandamus compel the landowners to dissolve the district, since the statute vests a discretion in them.
In my opinion it would work a legal fraud on the creditors of the district to permit the supervisors to assert in this court that the district is now defunct, while at the same time the landowners avoid payment of its debts refraining from the institution of a proceeding for dissolution — this would be a legal fraud, I say, if the relatrix had not pleaded the above fact in her petition. For it is obvious that the landowners cannot "abate" the district out of debt by mere inaction. However, since she has alleged that fact, respondents are, of course, perfectly justified in taking her at her word and proceeding on that theory; but they also must be bound by the same theory.
Now, the relatrix not only alleges that the interference of the Federal Government has rendered the completed improvement [805] unworkable; she also alleges the supervisors refuse to proceed with any plan, or to issue bonds, or to take steps through the landowners for the dissolution of the district. In other words, the drainage project has been abandoned. Respondents admit this. Relatrix' cause of action is as good now as it can ever be unless a new plan for reclamation should be voluntarily adopted under Sec. 12350, or new land be taken in under Sec. 12365, or the landowners voluntarily take steps to dissolve the district under Sec. 12361, supra. Yet she cannot compel any of these things because she owns no land in the district and is not legally interested either in its physical completion or dissolution.
Her only interest is in the collection of her judgment for work done by her deceased husband and accepted by the district after it was validly organized, whereby it obtained an approved plan for reclamation which then was workable. It was the duty of the supervisors at that time under Sec. 12340 to levy without unnecessary delay a benefit tax sufficient to pay for the "completion" of the district according to that plan; and if that tax had been levied relatrix' judgment would have been payable out of it under the Jacoby and Quigg decisions, supra. But no such benefit tax had been levied before the Federal Government made the plan for reclamation unworkable by locating its game refuge there; and the district supervisors now contend they are not obliged to raise further funds for the payment of the judgment, because there is no existing plan for reclamation on which to base them.
In my opinion these facts merely raise the question whether the district is excused from paying relator's judgment because the project has been abandoned, and it will neither alter it nor dissolve and pay debts. If it had previously levied the benefit tax and had money on hand, the supervisors could be mandamused to pay the judgment out of those funds. What is there to prevent the levy now of the same tax that should have been levied, notwithstanding the plan for reclamation *Page 1014 has since become unworkable? True, Sec. 12340 contemplates the levy of a benefit tax based on a plan for reclamation which will go forward to completion. But when such a plan is abandoned by the district after part of the intended work has been done, the project is physically "completed" at that point because of the determination that no further work shall be done. Such is the rule as to mechanics' liens. 36 Am. Jur., sec. 35, p. 38.
If the respondent district, itself (instead of the Federal Government) had by some means rendered impossible the full completion of the plan for reclamation, certainly it could not interpose that act as a defense when asked to levy a benefit tax on the theory of constructive completion.4 The only question in this case, it seems to me, is whether the district is relieved here because the interference of a third party prevented completion of the plan after relatrix' decedent had done his work. That ordinarily is no excuse.5 The rule has been applied in this State in mechanics' lien cases.6 So too of Acts of God.7 The Quigg case said, speaking of the intervention of the Federal Government in this very case, "it in no way affected the liability of that district on its lawfully incurred debts." And since that is true, is it not persuasive that Sec. 12340 means a tax may be levied to discharge that liability? There is no hiatus in these drainage statutes which leaves stranded in case of only partial completion, those who have done work for the district. The very fact that Sec. 12361 requires debts to be paid before the district can be dissolved, shows that.
Regarding the citation in the concurring opinion to 19 Am. Jur., sec. 117, p. 119, sec. 188, p. 163. The first of these discusses the power of equity to deal with novel situations; the other section deals with its power to enforce a decree of the same or a different court as the exigencies may require. But those citations are inapplicable, in my opinion. If it be true that there is no statute which relatrix can invoke to compel the levy of a tax to pay her debt, then equity cannot help her any more than law. The principal opinion argues on that very ground that relatrix is without remedy now, because the power to tax is purely statutory.
If the views expressed above are correct, [806] our alternative writ should be made peremptory on the respondent district and supervisors for the levy of a tax within the benefit assessments, under Sec. 12340, sufficient to pay relatrix' judgment, interest and costs in the Jacoby case and the costs in this case, as prayed. Leedy, J., concurs.
1 References to statutes are to R.S. 1939 and same section numbers in Mo. R.S.A.
2 Jacoby v. Missouri Valley Drainage Dist., 349 Mo. 818,163 S.W.2d 930.
3 State ex rel. Quigg v. Liquidator of Sewer Districts in St. Louis County, 352 Mo. 10, 17, 175 S.W.2d 828, 829(1), 830(2).
4 13 C.J., sec. 721, n. 647, sec. 724, p. 650; 12 Am. Jur., sec. 329, p. 885.
5 12 Am. Jur., sec. 370, p. 941.
6 Concrete Engineering Co. v. Grande Bldg. Co.,230 Mo. App. 443, 464-5, 86 S.W.2d 595, 608(15).
7 12 C.J., sec. 715, p. 641; 12 Am. Jur., sec. 368, p. 936. *Page 1015