Jacoby v. Missouri Valley Drain. Dist. , 349 Mo. 818 ( 1942 )

ON MOTION FOR REHEARING. This cause was transferred to the court en banc upon the dissent of one of the judges of Division II, where it had been heard and determined. Upon reargument in banc the divisional opinion was adopted, in consequence of which certain contentions not made in division, but appearing for the first time in respondents' supplemental brief in banc, were not expressly ruled. This omission constitutes the basis of the motion for re-hearing filed by the drainage district.

[4] The matter of first insistence is that the construction given the several sections of the sewer district act in State ex rel. Hotchkiss v. Lemay Sewer District, supra, (decided in 1936) is binding on us in construing the sections of the drainage act in question, because, it is said, such construction has become a part of the latter sections, the Legislature having allowed them to remain in force since said decision. It is true three legislative sessions have passed (one a revision session), and the Legislature has not amended or changed the drainage act sections. The rule of statutory construction invoked is "where a court of last resort construes a statute and that statute is afterwards re-enaced, or continued in force, without any change in its terms, it is presumed that the Legislature adopted the construction given to it by the court." [Handlin v. Morgan County, 57 Mo. 114.] It is a well-settled rule with which we have no quarrel. Under it, this court has on several occasions declined to re-examine earlier constructions of statutes, of which Handlin v. Morgan County, supra, cited and relied on by the district, is an example. In that case nineteen years had elapsed before the previous decision was called in question. And in Ex parte Carey, 306 Mo. 287, 267 S.W. 806, likewise relied on by the district, the legislative acquiescence had been over a period of thirty years. [See, also, Schawacker v. McLaughlin, 139 Mo. 339, 40 S.W. 935; Easton v. Courtwright, 84 Mo. 27; State ex inf. Gentry v. Meeker, 317 Mo. 719, 296 S.W. 411; State ex rel. Steed v. Nolte, 345 Mo. 1103, 138 S.W.2d 1016.] We think the rule not applicable, if for no other reason than that the statutes construed in the Hotchkiss case, supra, stood repealed (with a saving clause) at the very time of that decision; hence there was no occasion for further legislative concern over, or action on its part with respect to the construction given said sections.

Respondent has cited no cases, nor have we been able to find any, extending the effect of this rule to the mere continuation, without change in terms, of an earlier enacted analogous statute. Moreover, until the opinion in this case was adopted, this court has not held that the drainage and sewer district acts were so closely analogous as to require the same interpretation, so that it cannot be said that the "public and official construction of the statute was widely known," thus bringing it within Schawacker v. McLaughlin, supra.

The services in question had been performed, and the warrants issued long prior to the Hotchkiss decision. The Kansas City Court of Appeals in Macon County Levee District v. Goodson,224 Mo. App. 131, 22 S.W. 651, (decided in 1929) construed practically identical sections of the levee district act as authorizing the additional levy; the court, in an opinion by Commissioner BARNETT, after reciting the substance of the sections, saying, "The statutory authority to levy the additional tax is quite plain." The Kansas City Court of Appeals is a court of last resort, and, acting within its jurisdiction and not in violation of our decisions, it determines litigated issues as its judgment dictates with as great freedom as this court. [State ex rel. Hoyt v. Shain, 338 Mo. 1208, 93 S.W.2d 992. See, also, State ex rel. v. Ellison, 269 Mo. 151, 190 S.W. 274.] That it has jurisdiction to construe statutes will not be doubted. [Mellon v. Stockton et al., 326 Mo. 129, 30 S.W.2d 974; Kribs v. United Order of Foresters (Mo.), 222 S.W. 1005.] Three legislative sessions intervened between the date of the decision in the Macon County case and the time of the adoption of the Hotchkiss case, so that, if the district is correct in its contention, [940] then it would seem to follow that this court was without authority to overrule the Macon County case, and give the analogous sewer district statutes a different construction, and the Hotchkiss case should be overruled for that reason, if for no other. But our decision does not rest on this ground, as pointed out above.

[5] Defendant says we "overlooked the history of drainage legislation in this state, and particularly Sec. 5519, R.S. '09, as amended by Laws 1911, p. 213, which conclusively shows that Sec. 10759, R.S. '29, was not intended to authorize a benefit tax to pay preliminary costs, and that Sec. 10752, R.S. '29 was intended to limit the tax to pay preliminary expenses to fifty cents per acre." The argument proceeds upon the premise that until 1913 "there was but one compulsory tax, a benefit tax, which the benefited landowners were required to pay in proportion to benefits and which, by the express terms of the statute,included organization and administration expenses as well as construction and maintenance costs. [Sec. 6528, R.S. '89; Sec. 8262, R.S. '99; Sec. 5519, R.S. '09, as amended by Laws, 1911, p. 213, so as to provide for a separate maintenance tax]; that in 1913 the entire drainage act was repealed, and another substituted, whereby the former scheme of a single benefit tax to pay preliminary and administration expenses as well as construction costs was changed; that said change was effected through the enactment of what are now Sec. 10752, 10759 and 10789, in that a separate compulsory area tax for the purpose of paying preliminary or organization expenses was provided by Sec. 10752, and a separate compulsory benefit tax "to pay the costs of the completion of the proposed works . . . as shown in said `plan for reclamation' and carrying out the objects of said district, and plus ten per cent of said total amount for emergencies" was provided by Sec. 10759, and a separate compulsory annual tax for the purpose of paying maintenance and administration expenses was provided under Sec. 10789; that the principal opinion, by judicial legislation, puts back into said Sec. 10759 the provisions of former Sec. 8262, R.S. '99 [Sec. 5519, R.S. '09, as amended by Laws of 1911] which the Legislature took out by repealing those sections, and enacted Secs. 10752 and 10759.

But defendant, in its argument, ignores the fact that prior to 1913 and while Sec. 5519, R.S. '09, was still in force and effect, there was another section of the same article, Sec. 5538, R.S. '09, which expressly authorized the supervisors to levy "upon each acre of land in the district, not to exceed twenty-five cents per acre, as a level rate, to be used for purpose of paying expenses of organization, for topographical and other surveys, for plans of drainage, for expenses of assessing benefits and damages and other incidental expenses which may be necessary before entering upon the main work of drainage." [Laws 1909, p. 628.] So it will be seen that Sec. 10752 did not have its genesis in the act of 1913, as defendant asserts, and the co-existence of Secs. 5538 and 5519, R.S. '09 is a complete answer to the proposition advanced.

We have examined the other grounds of the motion, and think they are sufficiently answered by the opinion itself. The motion for rehearing is overruled.