165 S.W. 710 (Mo. 1914), Pash v. City of St. Joseph

Citation165 S.W. 710, 257 Mo. 332
Opinion JudgeWOODSON, J.
Party NameMARY C. PASH, Appellant, v. CITY OF ST. JOSEPH
AttorneyThomas B. Allen for appellant. Frank B. Fulkerson for respondent.
Judge PanelWOODSON, J. Faris, J., concurs in result.
Case DateApril 02, 1914
CourtSupreme Court of Missouri

Page 710

165 S.W. 710 (Mo. 1914)

257 Mo. 332

MARY C. PASH, Appellant,

v.

CITY OF ST. JOSEPH

Supreme Court of Missouri

April 2, 1914

Appeal from Buchanan Circuit Court. -- Hon. William D. Rusk, Judge.

Reversed and remanded (with directions).

Thomas B. Allen for appellant.

(1) To render an assessment for a public improvement valid the various acts prescribed by the statute, must, in all essential particulars, be strictly performed; otherwise the assessment will be void. The rule is universal and applies to all statutes upon the subject of taxation, whether for local government or public revenue. No person can be held for a tax of any kind, except upon the production of assessment against him made in the manner provided by the taxing power. Sedgewick on Statutes, 319; Bensley v. Water Co., 13 Cal. 306; Curron v. Shattuck, 24 Cal. 427; Stanford v. Worn, 27 Cal. 171; Nickloys v. Conkling, 20 N.E. 797; Smith v. Davis, 30 Cal. 537; Taylor v. Dormer, 31 Cal. 482; In re Church Assessment, 56 N.Y. 396; In re Blodgett, 52 How. Pr. 121; Sharp v. Spear, 4 Hill, 76; In re Jones, 78 Ala. 419; 1 Dillon, Mun. Corp., sec. 91, note. (2) The statutes require, as a prerequisite to the proceedings to condemn land for a park, that the territory of the city be divided into park districts, and the existence of such park districts is a jurisdictional fact in the proceeding. The non-existence of park districts at the time the condemnation suit was brought rendered the whole proceedings and the judgment void. Sec. 192, Laws 1909; R. S. 1909, sec. 8725. (a) The language of said section (8725) is itself mandatory. Kansas City v. Mastin, 169 Mo. 93. (b) The context of said section (Sec. 192, Laws 1909: Sec. 8725 R. S. 1909) shows that its provisions are mandatory, prerequisite and essential to a proceeding to condemn land for a park. Laws 1909, secs. 193-96, 201, 207-10, 213-16, 218, 220, 228. (c) A proceeding to condemn land for a park and provide payment for same by special assessment on real property, without the prior creation and existence of park districts, is void. This is pointedly and clearly evidenced by sec. 213, Laws 1909 (Sec. 8746, R. S. 1909), which provides that on acquisition and payment of the park site, the court shall adjudge the title to the land condemned shall be in the city to the use of park district. How can a judgment be rendered in a condemnation proceeding when there was no park district to receive and hold the beneficial use of the land taken for a park? (d) The fact of prior creation and existence of park districts is jurisdictional and must affirmatively appear in the special ordinance authorizing the condemnation proceeding which performs the office of the petition in the suit. (e) The admission by demurrer in this case that there were no park districts created or in existence at the institution of the condemnation proceedings is fatal to the proceeding and judgment rendered therein. (3) The power to establish a park in a city of the first class is predicated and dependent on the initiation of the park board and statutory procedure. The city cannot establish a park except upon recommendation and authority of the park board and according to the procedure set forth in the statute. Billings v. Chicago, 167 Ill. 337; Chicago v. Carpenter, 201 Ill. 402; Park Comrs. v. Chicago, 152 Ill. 392. Where a charter provision provides that certain improvements shall be constructed on a certain plan, to be adopted by the city council, the city has no power or jurisdiction to make such improvement in disregard of such plan. In re School to Vacate Assessment, 46 N.Y. 179; In re Blodgett, 52 How. Pr. 120. (4) Special ordinance No. 5722, authorizing the condemnation suit is void and furnishes no legal foundation for the condemnation suit and conferred no jurisdiction on the court to entertain the suit. The section of the statutes upon which the above ordinance was based is Section 195, Laws 1909 (Sec. 8728, R. S. 1909). That section expressly provides for the fixing of benefit districts with reference to park districts and a failure to describe the benefit district with reference to park districts is fatal to the ordinance. As we have seen, the other charter provisions make it obligatory and compulsory on the city undertaking to condemn land for a park to announce and publish, in the ordinance, the exact and particular park district, or districts or parts thereof in which the park is to be located. A void ordinance cannot be made the basis of a condemnation suit. (5) The judgment in the condemnation proceeding is void. The ordinance authorizing the proceeding, which performs the office of a petition, is absolutely void and, therefore, the proceeding based thereon is void. At the institution of the suit, July 10, 1911, there was no allegation or mention of the existence of park districts and there were, in fact, no park districts in existence, as admitted by the demurrer, and negatived by the allegation that park districts were created on January 16, 1912, six months after the filing of the suit and over two months after the condemnation proceeding had been submitted to the jury. It nowhere appears in the whole record of the condemnation proceeding that there were, at any time, any park districts.

Frank B. Fulkerson for respondent.

(1) Appellant's petition is fatally defective in the following particulars: (a) No sufficient reason is given why a court of equity should enjoin the judgment at law, rendered in this case. There is no allegation that appellant did not make the same defense below as here. Nor is there any allegation that she was prevented at the hearing of the original proceedings from making the defense that she attempts to make here. If for any reason Special Ordinance No. 5722 is void now it was void from the beginning and that defense was open to appellant at the trial in the circuit court. If she made the defense and the court ruled against her below her remedy was by appeal. McDonald v. McDonald, 242 Mo. 173; Renfro v. Renfro, 54 Mo.App. 429; Wyman v. Hardwick, 52 Mo.App. 621. Appellant must have exhausted her possible legal remedies by appeal or writ of error before equity will hear her. Railroad v. Maddox, 92 Mo. 469; Stockton v. Ransom, 60 Mo. 535...

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10 practice notes
  • 169 S.W.2d 419 (Mo.App. 1943), State ex rel. Associated Holding Co. v. City of St. Joseph
    • United States
    • Missouri Court of Appeals of Missouri
    • February 1, 1943
    ...or condemnation without the approval of its board of park commissioners. R. S. Mo. 1939, secs. 6433-34-35, 6464; Pash v. St. Joseph, 257 Mo. 332, 341, 165 S.W. 710; Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860, 866; Kansas City v. Martin, 169 Mo. 80, 91, 68 S.W. 1037; Kansas City v. Ward,......
  • 211 S.W. 68 (Mo. 1919), Heman Construction Company v. Lyon
    • United States
    • Missouri Supreme Court of Missouri
    • March 28, 1919
    ...230 Mo. 369. Such an ordinance is jurisdictional and its absence invalidates the bills. Tarkio v. Clark, 186 Mo. 298; Pash v. St. Joseph, 257 Mo. 332; Delmar Co. v. Lewis, 271 Mo. 324. (4) The trial court erred in holding valid the tax bills issued for part only of a work whose full complet......
  • 201 S.W. 52 (Mo. 1918), State ex inf. Killam v. Colbert
    • United States
    • Missouri Supreme Court of Missouri
    • February 16, 1918
    ...of government for cities, as authorized by the Constitution, delegates its own peculiar functions to such cities. [Pash v. St. Joseph, 257 Mo. 332, 341, 165 S.W. 710; Kansas City v. Mastin, 169 Mo. 80, 91, 68 S.W. 1037; Kansas City v. Ward, 134 Mo. 172, 186, 35 S.W. 600.] The Legislature ma......
  • 165 S.W. 783 (Mo. 1914), Dorrance v. Dorrance
    • United States
    • Missouri Supreme Court of Missouri
    • April 2, 1914
    ...challenge its sufficiency here. V. Plaintiff has filed in this case a motion to dismiss defendant's appeal, because his abstract contains [257 Mo. 332] matters not existing in the record proper or in the bill of exceptions. The abstract is very irregular, and, by the Page 788 insertion of e......
  • Request a trial to view additional results
10 cases
  • 169 S.W.2d 419 (Mo.App. 1943), State ex rel. Associated Holding Co. v. City of St. Joseph
    • United States
    • Missouri Court of Appeals of Missouri
    • February 1, 1943
    ...or condemnation without the approval of its board of park commissioners. R. S. Mo. 1939, secs. 6433-34-35, 6464; Pash v. St. Joseph, 257 Mo. 332, 341, 165 S.W. 710; Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860, 866; Kansas City v. Martin, 169 Mo. 80, 91, 68 S.W. 1037; Kansas City v. Ward,......
  • 211 S.W. 68 (Mo. 1919), Heman Construction Company v. Lyon
    • United States
    • Missouri Supreme Court of Missouri
    • March 28, 1919
    ...230 Mo. 369. Such an ordinance is jurisdictional and its absence invalidates the bills. Tarkio v. Clark, 186 Mo. 298; Pash v. St. Joseph, 257 Mo. 332; Delmar Co. v. Lewis, 271 Mo. 324. (4) The trial court erred in holding valid the tax bills issued for part only of a work whose full complet......
  • 201 S.W. 52 (Mo. 1918), State ex inf. Killam v. Colbert
    • United States
    • Missouri Supreme Court of Missouri
    • February 16, 1918
    ...of government for cities, as authorized by the Constitution, delegates its own peculiar functions to such cities. [Pash v. St. Joseph, 257 Mo. 332, 341, 165 S.W. 710; Kansas City v. Mastin, 169 Mo. 80, 91, 68 S.W. 1037; Kansas City v. Ward, 134 Mo. 172, 186, 35 S.W. 600.] The Legislature ma......
  • 165 S.W. 783 (Mo. 1914), Dorrance v. Dorrance
    • United States
    • Missouri Supreme Court of Missouri
    • April 2, 1914
    ...challenge its sufficiency here. V. Plaintiff has filed in this case a motion to dismiss defendant's appeal, because his abstract contains [257 Mo. 332] matters not existing in the record proper or in the bill of exceptions. The abstract is very irregular, and, by the Page 788 insertion of e......
  • Request a trial to view additional results