State ex rel. v. Hardy et al. thus as guardian he failed to carry out the orders of the probate court and the first bondsmen could not be relieved. Must this be regarded as impliedly holding that the second set of bondsmen would not have been also liable if Branch had been able to and did not replace the money? If so, it would seem to. be because the principal cannot, as to his sureties, transfer his mere naked indebtedness from himself in either capacity; that is, as to the second set of sureties his individual debt to the estate is not a debt he owes to himself in the capacity in which he is their principal, but to himself in the capacity in which he was the principal on the former bond. In other words, it is not a debt which it is his official duty in his second capacity to collect, and therefore his second set of bondsmen are not liable for his failure to replace the fund even though he could have done so during the entire time of the second bond. But clearly he, in his second capacity, would have been the one to collect it had the debt been owed by some one else; and it is hard to see why a different rule. should apply where he himself owes the debt and is able to pay it; and the language quoted from the decisions above show that the judges writing them did regard it as his duty to collect from himself the same as any other debtor and that for a failure to do so his second bondsmen should be held if it was possible for him to have collected it. Be this as it may, however, we are relieved of the duty of interpreting the foregoing decisions as, in effect, relieving the second set of bondsmen in this case even though Hardy was and still is solvent. The Supreme Court in State ex rel. v. Elliott, 157 Mo. 609 (a suit against the second set of bondsmen), so held. It is true, in that case the evidence all tended to show the principal was insolvent at the time he converted the funds during the first bond and there was no evidence to show that he ever was otherwise. We think, however, that the ruling is as above indicated. Hence even if, as defendants contend, the money of the Miller heirs was converted during the first bond, we cannot hold the second set 3 State ex rel. v. Hardy et al. of bondsmen liable on the ground that there was a continuing breach or a succession of breaches. Hence the second declaration hereinbefore mentioned as having been asked by the defendants should not have been refused. Nor should it be said that said second declaration was not in accord with the evidence because it required the finding that Hardy did not have the assets in his possession since "his possession" there means his official possession. It is urged by plaintiff that even though defendant sureties cannot be held on the theory of continuing or successive breaches, nevertheless they should be held because the final settlement of Hardy was a final judgment conclusive on the sureties, and, therefore, they were not entitled to show a breach prior to their bond. The plaintiff objected and excepted to the admission of such evidence. But even if the so-called final settlement can be regarded as such (of which we are exceedingly doubtful, since the court did not order the notice required in section 456, Revised Statutes 1909, to be given, and no notice of settlement but only of an intention to resign was given), nevertheless such settlement cannot preclude the sureties from sureties from showing that they are not responsible for the payment of the balance therein shown. [Cases of State ex rel. v. Branch, supra.] If that settlement is anything, it is only prima-facie evidence of the amount due. Under a proper answer raising the defense here interposed, the sureties can show that the default was committed before their bond was executed. It was only for failure to plead such a defense that it was not allowed in State ex rel. v. Kennedy, 163 Mo. 510. Again, the question of whether the one set of bondsmen or the other were responsible was not before the probate court for adjudication. Hence the judgment, if there was one, could not be-res adjudicata as to that. [2 Woerner's Am. Admn. (2 Ed.), sec. 506; Black on Judgments, sec. 644; Nelson v. Barnett, 123 Mo. 564, 570; Bramell v. Adams, 146 Mo. 70, 87.] Furthermore, there was no formal order approving the settlement and State ex rel. v. Mackin. there was no approval save such as may be implied from the order to turn over. It follows, therefore, that the court erred in refusing the declarations asked as aforesaid, and the judgment must be reversed and the cause remanded for a new trial. It is so ordered. All concur. STATE OF MISSOURI at the Relation and use of ROBERT E. BATES, Collector of the Revenue of Ray County, Mo., Appellant, v. BERNARD MACKIN, Respondent. Kansas City Court of Appeals, December 2, 1918. 1. TAXBILLS: Levee Districts: Constructing Levee Before Organization of District. A voluntary association of private individuals made a contract for the construction of a levee according to their own plans and specifications, without seeking bids and letting it to the lowest bidder, had the levee constructed and paid the contract price therefor, and then, at the price they paid, turned it over to the levee district that was incorporated while the work was being done and that agreed, before the levee was finished, to take it at the contract price. Held, that under such circumstances an objecting landowner cannot be compelled to contribute to such an enterprise nor can his land be sold under the taxbills issued by the District if he refuses. 2.- -: ——: Statutes Liberally Construed. The rule that statutes authorizing levees should be liberally construed, as they are for beneficient and reclamation purposes, applies only to matters of irrgularity not affecting the substantial rights of the parties and not to steps which are in their nature conditions precedent to the levying of the assessment. 3. LEVEE DISTRICTS: Powers of: Statutes. Levee districts have only those powers that are conferred upon them by statute, and such powers can be exercised only in the manner prescribed by the statute. Appeal from Ray Circuit Court -Hon. Arch Davis, Special Judge. AFFIRMED. State ex rel. v. Mackin. Lavelock & Lavelock and J. L. Farris, Jr. & Sons for appellants. ent. Milligan & Milligan and M. G. Roberts for respond TRIMBLE, J.-This is a suit on taxbills representing assessments made by Levee District No. 3 of Ray county, Missouri, on lands of defendant within said district. The case was tried before the court without a jury, and judgment was for defendant, no findings of fact or declarations of law being asked or given. Plaintiff appealed to the Supreme Court, but, as the case involved no construction of the revenue laws of the State within the meaning of the phrase used by the Constitution in fixing appellate jurisdiction, that tribunal transferred it to us. Levee District No. 3 was incorporated in the county court of Ray county, Missouri, under the provisions of article 10, chapter 41, Revised Statutes 1909; and the assessments embodied in the taxbills on which suit is brought are those placed on defendant's lands as their proportional part of the cost of the levee in said district. However, the levee was not constructed by the district itself in the manner pointed out by the statute. It was constructed by a firm of contractors under private contract with an unincorporated voluntary association of persons calling themselves the "Sunshine Levee District;" and the levee so built was then purchased and taken over by the Levee Board; and the cost thereof, about $8500, is the sum that was levied in assessments on the lands in said District, of which the taxbills in suit represent those levied on defendant's lands. The aforesaid voluntary association was organized, and the private contract for the construction of the levee was made, and work thereon was commenced, before the Levee District was incorporated. The voluntary association was organized March 1, 1910, the contract for the construction of the levee was executed March 22, work was begun March 28th, while State ex rel. v. Mackin. the petition for the incorporation of the Levee District was not filed in the county court until the May term thereof, 1910. At this time the work of constructing the levee had progressed considerably and more than two-thirds of it was practically completed when the Levee District held its "landowners meeting," (provided for in section 5728, Revised Statutes 1909), in August, 1910, at which the assessments for the cost of the levee were attempted to be authorized. The rest of the work on the levee was thereafter, completed in September, 1910, not by the Levee Board but by the constructing contractors under their private contract with the voluntary association aforesaid to whom the contractors reported and turned over the levee as completed and by whom the contractors were paid. The assessments, upon which the taxbills were made, were to raise money to reimburse the said association or the members thereof who had contributed the money to build the levee. It is out of the foregoing facts that this controversy over the validity of the taxbills grows. Defendant refused to join the association and protested against its building the levee, contending that as his ground was lower than the lands of those forming the association, the levee they proposed to build and the extent to which they purposed limiting it, would afford his land no protection from overflow when the water in the Missouri river, against which the leveeing was to be done, reached a certain stage up stream. Whether his reasons for objecting are material or not, the fact that he did not join the association and protested against the levee it proposed is material. The notice of the "landowners meeting" held August 2, 1910, by the Levee District after it was incorporated, notified all landowners that if they did not appear at said meeting, either in person or by proxy, they would be regarded as assenting to what was done in the way of acquiring, building, constructing and completing of said levee. Defendant, in response to this warning, sent his brother as his proxy to protest against the proposed action. |