The Holt County sentinel., 1896-12-04
,e old taxes have been barred even IL

the Official having the matter OF their en-
forcement and collection in charge were
ready and willing to perform their duty
The Case here stands as IL IT had bee D
shown that the previous levies had bst q
wholly exhausted. and as :.ad. were
inadequate to meet and pay ,h. ndeb
tedness for which they were levied in
the first instance.
As a proposition Of law, the r-asoas
given by the county court far refusing
to make an additional levy to pay this
warrant that they had only the right to
make one levy and that. as the improve
ment was not completed within one
Year after the appointment of commis
sioners, they have NO rIsht 10 pay same
or assess any additional taxes for that
purpose. which seems to have beer
adopted by the counsel for defendant
and urged upon this court for it's ap
proval cannot bs sustained for u no
ment.
Neither the reiator or his assiRnOl
had anything to do with the matter o
the estimate, the assessment, the lew
or collection oi the tax, and 10 hold thai
he is without remedy and must go un
paid because Il miscalculation or mis-
take OF the county court, or the derelic
tion ard indifferei Co OF the collector, ol
the dOdging Of the tax payer, lss prop
ositiOn tina. oIght To cont I'm its ref
utation in its mere utterancs.
All the lands benefited can be retaxed
whenever it appears that previous AS
sessDents are insufficient. Even il the
assessment in the first instance Wal
sufficient, If collected, to pay the cash
IN full for said improvements, yet il, a.
ter allowance Of u reasonable time fol
the collection from delinquente, a de
ticlency exists. and the legal remedies
have been exhausted for the collection
Of taxes, or il the assessments made
have been abandoned or remained No.
collected by the authorities having the
matter II the E, election iu charges, the
writ should be granted. ..ordering an sd-
ditional assessment.
Black, j =, in the case o. Sheridan ve.
Flsmming Ut AL, 93 Mo-. 321. when ex-
actly the same position WAS taken by
the then judges Of Holt county as ID
taken now by the present judges to re-
sist the application Of relators' assignor
to have an additional tax levied to pay q
81 lnilar warrant issued for a similar pur.
posse as the ose held by this relatol
here, uses this language 10 disposing Of
defendants contention there:
III the improvements are not com
pleted within one year after the appor.
ticnment Of the commissioners, addI
tional assessments may be made at large
and upon the owners Of lands reclaimed
and benefited.
"There is nothing IN the act (for the
reclaining swamp and ovrrfiowed lands
etc. which limits the amount tc the
estimate first made by the commission
ere. The law does not contemplate that
they must in the first instance report
the exact amouat of the work. It. would
be impossible for them to do this, for
they must pay for the surveys, con-
demnation Of property and the like, all
Of which expenses must be paid out Of
tho fund. Neither those expenses nor
the cost Of the work can be ascertained
with accuracy 10 advance, Besides, the
contractor has nothing TO do with the
estimate; and to say he must 60 unpaid
because o. "a mistake of the commits
sioners in matter over which he has
no control is manifestly unjust, the law
coRtemplates no such results"
Defendants next contention is that
the pay ment Endorsed on the warrant
held by relator March -, 1885, was
without authority, and that as the last
authorized payment % same was made
on May IA, 1881, that rslator's right OF
action on the warrant ,s barred by the
provision Ut section 6774. Revised Stat
utes, 1889, which directs that all actions
upon any writing for the payment Of
money shall he commenced within ten
years after the cause of action thereon
has accrued, and that as :relstOr's right
OF action on the warrant was tarred at
the institution Of these proceedings
mandamus will not lie to compel the
levy Of tax to provide funds for its
payment.
The relator,. on the other hand, con-
tends that the payment made March
l9, 1885. by the county treasurer and in
dOrsed on the warrant On that date, was
paid out Of funds that had been turned
oyer to the treasurer for the purpose Of
paying this or similar warrants, and
could not have been, used or applied else.
where, and that the payment rs then
made on the warrant was fully aulhoriz-
cd and had the effect to keep the war.
rant alive, as legal claim against the
county, until the institution Of the suit.
The provision OF section 6774, kIown as
the ten year statute Of limitations, ac-
cordipR to recent holding Of this court
in the case Of Wilson ys. Knox county,
reported in l32 Mo. Rep. 3s7. does not
apply to warrants OF the character held
by relatOr, but the limitation governing
such paper is to be found in section 1886
Of the statutes. which provides, amcpR
other things. that whenever any county
drawn on the county treasurer
shall not be presented to the county
treasurer for payment within five years
after the date thereof. Or being present
ed within that time and protested for
want OF funds to pay 1t, shall not be
again presented for payment within five
years after funds shall! have been set
apart therefor, such warrant shall be
CARED and shall not be paid" etc; SO
hat We are relieved from discussion Of
he question raised AS to the authority