1. That a city in a drainage district organized under Chapter 242, RSMo, is not exempt from the maintenance tax levied by the board of supervisors of the district. 2. That a board of supervisors of such drainage district may charge for the privilege of allowing the overflow from a city’s sewage lagoon to spill into the drainage ditch if the drainage from the sewage lagoon did not exist when the drainage district was organized.

DRAINAGE DISTRICTS : CITIES , TOWNS & VILLAGES: 1. That a city in a drainage dis- t~ict or~anized under Chanter 242, RSMo, is not exemnt from the main- tenance tax levied by the board of sunervisors of the district. 2. That a board of supervisors of such draina~e district may charge for the privilege of allowin~ the overflow from a city ' s sewa~e lagoon to spill into the draina~e ditch if the drainage from the sewage lagoon did not exist when the draina~e district was organized . OPINION NO . 13 Honorable 0. L. Wallis State Repr esentative District No . 152 1331 Pershing May 24, 1971 Poplar Bluff , Missouri 63901 Dear Representative Wallis : FILED /~ Thi s is in response to your reouest for an opinion from this office as follows: "I would like an Opinion on the following: A third class city, which is in a draina~e dis- trict or~anized in a Circuit Court , Chapter 242 , RS Mo.1969 , is charged a drainaRe tax by the district . Article X, Section 6 , Consti- tution of the State of Missouri, states ,' Ex- ception from taxation .- All property, real and personal , of the state, counties, and other political subdivisions, and non-profit ceme- teries, shall be exempt from taxation, . .. '. Can the drainage djstrict le~ally tax the city? "Furthermore, t he draina~e district makes a flat char~e per year, in addition to the taxes , to the city for prjvilege of allowin~ the over- flow from the city' s sewage la~oon to spill over into the drainage ditch. Can the drain- age district refuse to allow the use of the d i tch for the sewa~e overflow if the city de - clines to pay the annual char~e?" In your first question , you inquire whether a third class city which i s in a drainage district or~anized by the circuit court under Chapter 242, RSMo, can legally tax the city under Article X, Sec- tion 6 , Constitution of Missouri, which exempts all property of the state, county and other political subdivisions , from taxation . Honor able 0. L. Wallis We assume the tax you have in mind is an assessment made by the boar d of supervisors of the drainage district for maintenance tax based upon the net assessment of benefits ori~inally assessed against the city for public hi~hways in such city under Section 242 . 260 . See Harrison and Mercer County Drainage Dist. v. Trail Creek Tp . 317 Mo. 933, 297 S.W. 1. Section. 242 . 490, RSMo , provides in part: "1. To maintain and preserve the ditches, drains, levees or other imnrovements made pur- suant to sections 242.010 to 242.690 and to strengthen, renair and restore the same, when needed, and for the puroose of defrayin~ the current expenses of the district, the board of supervisors may, upon the completion of said improvements and on or before the first day of September in each year thereafter, levy a tax upon each tract or parcel or land and upon corporate property within the district to be known as a 'maintenance tax'. Said main- tenance tax shall be apportioned upon the basis of the net assessments of benefits accruing for original construction, shall not exceed ten per cent thereof in any one year and shall be cer- tified to the collector of the revenue of each county in which lands of said district are situ- ated in the same book in like manner and at the same time as the annual installment tax is cer- tified, but in a separ ate column, under the heading 'maintenance tax'." Under this statute a board of supervisors has authority to levy an assessment or tax not to exceed ten percent of the original assessment upon each tract or parcel of land and upon corpor ate property within the district to be used to maintain , preserve, to strengthen and repair ditches, drains and levies in the drainage distr ict. This statute further provides that the collector shall demand and collect the maintenance tax and make return thereof and shall receive the same comnensation therefor and be liable for the same entities for failure or neglect in the same manner as other taxes are collected. Ar ticle X, Section 6, Constitution of Missouri, provides in part : -2- Honorable 0 . L. Wallis "All property, real and personal, of the state, counties and other political subdivisions, and non-profit cemeteries, shall be exempt from taxation; . .. " The first question to be determined is whether the assessment made by the board of supervisors of a drainage district is a tax within the above constitutional provision. This question was before the Suoreme Court in Houck v. Little River Drainage District, 248 Mo. 373, 154 S.W. 739, aff 1d 36 S. Ct. 58, 239 U. S. 254 (1913). In this case the court stated 248 Mo. l.c . 382- 383: "I. That the State , by the Legislature, has the power to create corporations for the pur- pose of reclaiming or improving swamp and over- flowed lands by ditches and drains and levies, in district s prescribed by it, or to be ascer- tained and fixed by such appropriate instrumen- talities as it may orovide , is no lon~er a question in this State. Nor is it an open ques- tion that the instrumentality so created may be invested with all the necessary power and au- thority to construct and maintain whatever works may be necessary to accomolish such object, and to raise the funds to pay for the same by as- sessment on the lands to be benefi ted thereby. [Egyptian Levee Co. v. Hardin, 27 Mo. 495; Columbia Bottom Levee Comoany v. Meier , 39 Mo. 53; Mound City Land & Stock Company v. Miller, 170 Mo. 240; Squaw Creek Drainage District v. Turney, 23? Mo. 80; Morrison v. Morey , 146 Mo. 543; State ex rel. v. Chariton Drainage District, 192 Mo . 517; State ex rel. v. Taylor , 224 Mo. 393; Little Rjver Draina~e District v. Rail- road, 236 Mo. 94.] These corporations, as is said in the most of the cases cited, are, when formed, public subdivisions of the State, ex- ercising the powers granted them for the pur- poses of their creation, within their terri- torial jurisdiction, as fully, and by the same authority, as the municipal corporations of the State exercise the powers vested by their charters. That the special taxes they are au- thorized to levy and collect upon and for the benefit of the lands included in their dis- tricts do not come within the provisions of article 10 of the State Constitution invoked -3- Honorable 0. L. Wallis by the appellants , has long been settled, and has passed from the realm or legitimate dis- cussion. . " The distinction between a tax and benefit assessment is made in Fort Osa e District of Jackson Count v. Pole , 312 S.W.2d 1 ~4 (Mo. 195 . The is sue before the court in this case was whether an assessment made under Section 2~2.490, supra, constituted reve- nue under Article V, Section 3, Constitution of Missouri which vests the Supreme Court with jurisdiction of an appeal when the revenue laws of the state are involved. The court, after citing Section 242.490, supra, stated at l.c. 145-1~6: " ••. since the decision in State ex rel. Broughton v. Oliver , 273 Mo. 537 , 201 S. W. 868 , it has been well settled that aopeals in proceedings to enforce benefit assessments by drainage districts are not cases involving a construction of the revenue laws of the state within the meaning of Art. V, § 3, of the Constititon , V. A.M.S., even though such assessments are collected as other taxes. The Broughton case makes clear the distinc- tion between revenue laws of the state and local benefit assessments in this oft-quoted statement, 201 S.W. 870 : 'When the Constitu- tion speaks · of the "revenue laws of this state," as it does in section 12 of article 6, supra, it has r eference to that body of laws by which funds for public governmental purposes are raised, and not to that law or body of laws by which are authorized the assessment of bene- fits to meet the expenses of given improve- ments . In other words, the two purposes make up separate schemes: ( 1) Revenues for public governmental purposes , and the assessment , col- lection and expenditure thereof; and (2) spe- cial assessments and their collection and ex- penditure . It is to the first class supra that the constitutional provision under review ap- plies , and not to the latter.' "Later cases approving and following the hold- ing in the Broughton case are Bushnell v. Mississippi & Fox River Drainage Dist. , 340 Mo. 811, 102 S . W.2d 871, 874 [5]; Pearson Drain- age Dist. v . Erhardt, Mo., 196 S .W.2d 855 [1 , 2] ; Howell v . Division of Employment Security , etc., 358 Mo. 459,, 215 S .W.2d 467, 471-472 [3] ." -4- Honorable 0. L. Wallis It is the opinion of this office that a benefit assessment levied by the board of supervisors of a draina~e district is not in fact within the provisions of Article X, Section 6 , Constitution of Missouri, which exempts real estate owned by a political subdi- vision from taxation. In your second question you inquire in substance whether a drainage district organized under Chapter 242, RSMo, has authority to charge a bity a flat charge for the privilege of allowing over- flow from the city's sewer la~oon to empty into the drainage ditch . A somewhat analogous case arose in Thompson v. City of Malden, 118 S.W.2d 1059 (Sor.Ct.App. 1938) , in which the Springfield Court of Appeals sustained the lower court's injunction prohibiting the City of Malden from connecting a sewer outlet with the drainage ditch in a drainage district organized by a county court under Chap- ter 243, RSMo. The city did not have a written contract with the county court granting it permission to connect with the sewer dis- trict as provided in 243.270, V.A.M.S., Section 10838, RSMo 1929. The court, in discussin~ the organization of drainage districts and their authority, stated at l.c. 1063: "Drainage ditches are artifically created and constructed through funds raised by taxation against the lands that comprise the district . Chapter 64 , -Article 2, R.S.Mo.l929 creates a code unto itself and the provisions of this chapter and article limit and define the au- thority and duties of the go vernin~ board of draina~e districts. State ex rel. Walker v. Locust Creek Draina~e District, 228 Mo.App. 434, 67 S . W. 2d 840; State ex rel. Harrison v. Hill, 212 Mo .Apo. 173 , 253 S.W. 448. Drain- age districts orRanized under the provisions of this chanter and article are public or municipal corporations and the County Court of the county in which they are organized administers their affairs. Their ri~hts , powers and liabilities are specifically lim- ited by the statutes that create them. State ex rel. Apple~ate v. Taylor, 224 Mo. 393, 123 S.W. 892; Squaw Creek Drainage Dist . v. Turney , 235 Mo. 80 , 138 S.W. 12; Houck v. Little River Drainage Dist., 248 Mo . 373, 154 S.W. 739; Wilson v. Kin~'s Lake Dr ainage & Levee Dist., 176 Mo.App. 470, 158 S . W. 931; Id., 257 Mo. 266 , 165 S . W. 734; State ex r el . McWilliams v. Little River Draina~e District, 269 Mo. 444, -5- Honorable 0. L. Wallis 190 S.W. 897; Birmingham Draina~e Dist. v. Chicago, B. & Q. R. Co., 274 Mo . 140 , 202 s.w. 404; Sigler v. Inter- River Drainage Dist. , 311 Mo. 175, 279 S . W. 50; Arthaud v. Grand River Drainage Dist., 208 Mo . App. 233, 232 S.W. 264." The principles of law stated above as to the rights , powers and liabilities of a drainage district are specifically limited in the statutes· that create them. Chapter 242, RSMo, governing drainage districts organized by the circuit court does not contain a statute ex9ressly authorizing a drainage district to contract with a city for the use of a drain- age ditch for a consideration as provided for in Section 243.370 which applies only to draina~e districts organized by the county court. Section 242.370, RSMo, which applies to drainage districts organized by the circuit court provides: "Existing drains may be connected.--1. At the time of the construction, in any district in- corporated under sections 242.010 to 242.690, of the plan for reclamation herein referred to, all ditches or systems of drainage already con- structed in said district and all watercourses shall, if necessary to the drainage of any of the lands in said district, be connected with and made a part of the works and improvements of the olan of drainage of said district. "2. But no ditches, drains or systems of drain- age constructed in said district after the com- pletion of the aforesaid plan of drainage of said district, shall be connected therewith, unless the consent of the board of supervisors shall be first had and obtained, which consent shall be in writin~ and shall particularly de- scribe the method, terms and conditions of such connection, and shall be approved by the chief engineer. Said connection, if made, shall be in strict accord with the the method, terms and conditions laid down in said consent . "3. If the landowner or owners wishing to make such connection are refused by the board of su- pervisors or decline to accept the consent granted, the said landowner or owners may file a petition for such connection in the circuit -6- Honorable 0. L. Wallis court having jurisdiction in said district, and the matter in dispute shall in a summary man- ner be decided by said court which decision shall be final and bindin~ on the district and landowner or owners. "4. No connection with the works or improve- ments of said plan of drainage of said district or· with any ditch, drain or artificial drainage wholly within said district shall be made, caused or effected by any landowner or owners, company or corporation, municipal or private, by means of or with any ditch, drain, cut, fill, roadbed, levee, embankment or artificial drain- age, wholly without the limits of said district, unless such connection is consented to by the board of supervisors, or in the manner herein provided." Under this statute, the board of supervisors of a drainage district organized in the circuit court, has authority to consent in writing for other ditches, drains or systems of drainage to be connected with a drainage ditch under the terms and conditions ap- .proved by the chief engineer of the drainage district. The question now arises whether the supervisors of a drain- age district, although they have the authority to permit the con- nection to be made, have the right to require compensation to be paid for such service. In State ex rel. State Hi~hway Commission v. Union Electric Co. of Missouri, 142 S. W.2d 10 9 (St.L.Ct.App. 1940), the State Highway Commission sought to recover eight hundred dollars per year from the Union Electric Company upon a contract whereby the Union Electric Company agreed to pay for its electric power lines on the State Highway bridge at St . Charles, Missouri . The court denied recovery because a statute exoressly provides a public utility the right to use a public hi~hway for its poles , lines, etc . In dis- cussing this matter, the court stated at l . c. 1102: "In support of it contention that it has been impliedly granted the power it seeks to exer- cise, plaintiff cites, by way of alleged ana- logy, that line of decisions which affirm the right of a municipal corporation to impose a charge in the nature of a rental uoon a public utility which appropriates space in the streets and alleys of the city as the location for its poles and other fixtures. The trouble is that -7- Honorable 0. L. Wallis in attempting to draw such analogy, plaintiff ignores the vital difference between the power of a city in such respect and the power which it itself possesses . The consent of a munici- pality is a condition precedent to the right of a utility to make use of the streets and alleys of the municipality in the operation of its business (State ex inf. v. Arkansas- Missouri Power Co., 339 Mo. 15, 93 S.W.2d 887; State on inf. v. Missouri Utilities Co., supra); and since this is so, and since the requisite permission may be withheld, when a municipality once permits the exclusive appropriation of a portion of its streets and alleys, it may then in turn exact compensation in the nature of rental for the space thus occupied by the uti- lity to the absolute exclusion of the rights of the general public. Not so, however, in the case of the commission, which is expressly denied the right to exclude the lines and ap- purtenances of public utilities from the units of the state highway system, and which must therefore be held to lack the right to impose a charge for the exercise of a privilege which it has neither the power to grant or to pre- vent. State ex rel. v. Kansas City Power & Light Co., supra." It is our view that if the la~oon existed prior to the forma- tion of the drainage district, no char~e for connecting with the draina~e ditch by the sewer lagoon could be made by the draina~e district under subsection 1 of the above statute. This would also apply to any drainage systems that existed at the time the drain- age district was organized. If, as a matter of fact, the sewer lagoon was built and pro- vision made for discharge of effluent after the drainage district was established, the provisions of subsection 2 would be appli- cable and the drainage district would have authority to make a charge for allowin~ the effluent from the city sewer lagoon to flow into the drainage ditch. If the city and the board of supervisors of the draina~dis­ trict cannot agree on the terms and conditions for allowing the effluent from the sewer lagoon to be emptied into the drainage system, the matter may be submitted to the circuit court which decision would be final and bindinp, on the city and the drainage district as provided in subsection 3 of the above statute. -8- Honor able 0 . L. Wallis CONCLUSION It is the conclusion of this office: 1. That a city in a drainage district organized under Chapter 242, RSMo , is not exempt from the maintenance tax levied by the board of supervisors of the district. 2. That a board of supervisors of such drainage district may charge for the privile~e of allowing the overflow from a city's sew- age lagoon to spill into the drainage ditch if the drainage from the sewage l agoon did not exist when the drainage district was organized. The foregoing opinion, which I hereby approve , was prepared by my Assistant, Moody Mansur. ~r:j~,p JOHN C. DANFORTH Attorney General - 9-