Because of the reference in the dissenting opinion of Ellison, J., to State ex rel. Quigg v. Liquidator of Sewer Districts in St. Louis County, 352 Mo. 10, 175 S.W.2d 828, I wish to state my reasons for concurring in the opinion of Douglas, J., herein. As was pointed out in the opinion (written by me) in the Quigg case in discussing the former Jacoby case (Jacoby v. Missouri Valley Drainage District, 349 Mo. 818, 163 S.W.2d 930), this district "reached the status where it could exercise its full powers to build its planned improvements and to levy sufficient assessments to pay for them." The action of the United States Government then made it impossible to carry out its approved plan of reclamation, but the district was still legally able to proceed with a new one. However, any such action would require a new assessment of benefits based on such new plan.
Therefore, I do not think that relator's judgment can now be paid out of a levy on the basis of the present benefit assessments because these benefits are based on a plan of reclamation which it is impossible to use and which had to be abandoned. When that plan was made useless before anything was done under it, were not also the benefits assessed under it made uncollectable? Were not these benefit assessments necessarily abandoned with the abandonment of the plan? They were assessed only on the basis of its use. (Sec. 12336 so provides. *Page 1011 All references are to R.S. 1939 and Mo. Stat. Ann.) This drainage article (Art. 1, Chap. 79) contemplates that all payments for the cost of any plan of reclamation shall be in proportion to the benents each landowner would derive from its completion. Now when it is conceded that work under this plan is impossible and that none can ever be commenced under it, it does not seem to me that payment of any part of the estimated benefits (from its completion) should now be required by mandamus.
Relator's judgment is for engineering work in drawing this plan (before its adoption) and the statute (Sec. 12333) contemplated its payment out of the uniform acreage tax for the preliminary expense of the district. Of course, when work under this plan proceeds (after the decree approving it) then I think it is proper to collect for the whole cost out of the benefits based on it. (Sec. 12340 provides how this shall be done.) However, it does not seem proper to me to pay this judgment by a levy from benefits which it is known cannot be ever realized at all in any part. My view is that if anything is to be paid from benefits, it should be from benefits based on a plan which will be carried out. That could be done on the basis of a new plan for what is left of the district or if additional land is annexed then on a plan for the enlarged district. If no new plan is adopted, it seems to me that the only method of payment left is by a uniform acreage tax upon dissolution. It seems to me that this is what the drainage article contemplates if an effective plan cannot be made and approved. Even so, relator is not necessarily helpless. She can keep the judgment alive so that no landowner can give a clear title until the district is dissolved or it is otherwise paid. Perhaps also relator might in an equitable proceeding bring all the landowners into court and get a lien established, on all the land in the district, if they will neither proceed with a new plan nor dissolve the district. [Sec. 19, Am. Jur. 119, Sec. 117, also p. 163, Sec. 188.] I do not think mandamus is now available.[804] Douglas, C.J., and Tipton, Gantt and Clark, JJ., concur; Ellison, J., dissents in opinion filed in which Leedy,J., concurs.