The City of Clinton v. Henry County

• Citation: 22 S.W. 494,115 Mo. 557
• Parties: The City of Clinton to use of Thornton et al., Appellant, v. Henry County
• Decision Date: 08 May 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 494

115 Mo. 557

The City of Clinton to use of Thornton et al., Appellant, v. Henry County

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from Henry Circuit Court. -- Hon. D. A. DeArmond, Judge.

Affirmed.

Peak Yeager & Ball and W. C. Stewart for appellants.

(1) That the legislature intended to and did confer full and unrestricted power to authorize the city of Clinton to levy the assessment on the property held by the defendant in this case is perfectly certain, and the fact that both constitution and statutes expressly exempt this and other property from taxation, but nowhere from local assessment demonstrates such intent. Cook Co. v. Chicago, 103 Ill. 646; Adams Co. v. Quincy, 130 Ill. 566; Hassan v. Rochester, 67 N.Y. 533; Schools v. St Louis, 26 Mo. 468. (2) The courts of this state have also distinguished between general taxation for revenue, for support of the government of the state, including its subdivisions, and assessments for benefits conferred by local improvements; and have by a construction of the constitutional and statutory provisions, definitely and repeatedly held and determined, that the constitutional exemptions, as well as the statutory exemptions, made in pursuance thereof, relate only to general taxation for revenue, and do not relate to assessments for benefits. Farrar v. St. Louis, 80 Mo. 379; Hassan v. Rochester, 67 N.Y. 534-5; Dillon on Municipal Corporations [4 Ed.], sec. 773-777. (3) This court has held that the constitutional and statutory provisions in regard to exemptions from taxation intended to leave church property liable to assessments for local improvements; and that public property mentioned in said provisions was liable to such assessment for precisely the same reason. Lockwood v. St. Louis, 24 Mo. 20; Schools v. St. Louis, 26 Mo. 468. The same rule of construction is adopted in New York. In the matter of Mayor, 11 Johns. 77; Hassan v. Rochester, supra. (4) Public property not being expressly exempted from assessments for local improvements, it cannot be exempted by implication; since it is the settled policy of this state that all exemptions shall be specifically stated. For the courts to proceed to declare exemptions beyond the point where the law stops, would be judicial legislation of the most pronounced kind. St. Louis v. Ins. & Trust Co., 47 Mo. 150; Railroad v. Maguire, 49 Mo. 498; Railroad v. Cass Co., 53 Mo. 17; McLean Co. v. Bloomington, 106 Ill. 214; Cooley on Taxation, [1 Ed.] 146-147. (5) An assessment not being a burden, like a tax, but being imposed where the value and utility of the property is enhanced by the improvement, there is "no more reason to excuse the public from paying for such benefits than there would be to excuse from payment where property is taken under the eminent domain." Cooley on Taxation [2 Ed.] p. 653; Lockwood v. St. Louis, supra; Hassan v. Rochester, supra. (6) Whether this public square, which has no public building on it, can be sold under execution or not, does not affect the power of the city to make this assessment, or the power of the courts to compel its payment. Public school property, cemeteries and railroad rights-of-way, either by express statute or from considerations of public policy, cannot be sold under execution, and yet are held liable to such assessments and compelled to pay them. Railroad v. Spearman, 12 Iowa 12; Railroad v. Hanna, 68 Ind. 562; Railroad v. Connelly, 10 Ohio St. 159; Railroad v. Decatur, 126 Ill. 92; Baltimore v. Cemetery Co. 7 Md. 517; Lima v. Cemetery Co., 42 Ohio St. 129; Cemetery, v. Buffalo, 46 N.Y. 506; Sioux City v. School Dist., 55 Iowa 150. (7) Public policy that refuses the right of execution does not destroy the right to judgment, but merely requires resort to the usual yet extraordinary remedies of mandamus, sequestration of revenues or receiverships, as the nature of the case may require, in lieu of execution to enforce payment. McLean Co. v. Bloomington, 106 Ill. 209; 18 Ill. 276; Lima v. Cemetery Co., and cases, supra; Freeman on Executions, sec. 22.

James Parks & Son for respondent.

(1) The whole estate of the county in the courthouse square, reserved and dedicated, became the property of and was vested in the people of the state, for public use. It is, therefore, not subject to sale or transfer by the county voluntarily or unvoluntarily. Rutheford v. Taylor, 38 Mo. 315; cited with approval in Brink v. Collier, 56 Mo. 164; also in Price v. Thompson, 48 Mo. 361; Cummings v. St. Louis, 90 Mo. 259; Trustees v. Conn., 4 Paige, 510; Brown v. Manning, 6 Ohio 129; Cincinnati v. White, 6 Pet. 432; Town v. Clark, 9 Cranch, 192; Rector v. Hart, 8 Mo. 448. (2) Public squares in cities and villages are easements for the benefit of the public. The public square is as much of a highway as if it were a street, and neither the county nor the public can block it up, to the prejudice of the public nor of an individual; nor can either assert a right to it, by enclosing it, beyond the limits of a reasonable curtailage (for a court house and offices), and the same principles and rules of property apply to such squares as to public highways. 2 Smith's Leading Cases [5 Am. Ed.] 222, 224, and cases cited; 2 Dillon on Municipal Corporation, sec. 644, et seq.; Bishop on Non-Contract Law, sec. 956. (3) On grounds of public policies, the property of a municipal corporation cannot be sold under execution. Freeman on Execution [1 Ed.] sec. 126; Riggs v. Johnson, 6 Wall, 166; Weber v. Lee Co., 6 Wall. 210; Klein v. New Orleans, 99 U.S. 149; Mernweither v. Garrett, 102 U.S. 472; Dillon on Municipal Corporations [3 Ed.] sec. 576; Hastings v. Wood, 2 Mo.App. 148; Revised Statutes 1879, sec. 2344. On the same grounds, a mechanic's lien cannot be enforced against a schoolhouse. Abercrombie v. Ely, 60 Mo. 23; Dugan Cut Stone Co. v. Gray, 43 Mo.App. 675; nor against a public bridge (McPheeters v. Merimac Bridge Co., 28 Mo. 468), nor against bridges or other detached portions of railroads; Knapp v. Railroad, 74 Mo. 374, and cases cited; Ireland v. Railroad, 79 Mo. 572; nor can the salary of a public official be garnisheed for the same reasons of public policy, nor are public officers subject to garnishment. Hawthorn v. St. Louis, 11 Mo. 59; Fortune v. St. Louis, 23 Mo. 239; Pendleton v. Perkins, 49 Mo. 569; Revised Statutes, 1889, sec. 5220. (4) Public property held for governmental purposes, as a court house, cannot be sold to pay an assessment levied for the improvement of a street, unless a sale is expressly authorized by the statute, nor will such property be deemed to be within the general words of the statute, delegating in general terms the authority to levy local assessments. Statutes conferring a general authority are to be construed as operating upon property subject to legal process and not upon property held for governmental purposes, or any of the local instrumentalities of government. Elliott on Roads and Streets, pp. 403-404; Lowe v. Howard Co., 94 Ind. 553; Pres. etc. v. Board, 12 Ind. 620; Worcester Co. v. Worcester, 116 Mass. 193; Essex Co. v. City of Essex, 151 Mass. 141; Desty on Taxation, p. 1248; Toledo Coughlin v. Toledo Bd. Ed. 26 N.E. 403; State v. Hartford, 50 Conn. 89. (5) The power to levy assessments is a branch of the taxing power, and the property of the state is exempt from all taxation and all special assessments for local improvements, unless made subject to the same in express terms. It is not sufficient, in order to charge such property with such burdens, that the constitution or the statute fail in terms to exempt therefrom such property, but the law must in express terms provide that such property be liable. State v. Hartford, 50 Conn. 89; Worcester Co. v. Worcester, 116 Mass. 193; 2 Dillon [4 Ed.] sec. 773; Erie Co. v. Erie, 4 Cent. Rep. (Pa.) 305 and cases cited. State v. Clinton Township, 6 Cent. Rep. (N. J.) 830, and cases cited; Camden v. Camden Village, 1 N.E. 299, and cases cited. (6) Assessments made for benefits conferred by local improvements are an exercise of the taxing power. State ex rel. v. St. Louis, 62 Mo. 244; State ex. rel. v. Richeson, 76 Mo. 478; Dillon on Municipal Corporations [4 Ed.] sec. 752. (7) The power of local taxation for public improvements is put upon the ground of compensation, upon the reason that the property assessed is specially benefited and enhanced in value to the extent of the assessment. Grading Co. v. Holden, 107 Mo. 305; Neenan v. Smith, 50 Mo. 525; Sheehan v. Hospital, 50 Mo. 155; Farrar v. St. Louis, 80 Mo. 391. Elliott on Roads and Streets, p. 369. (8) The only remedy given for the collection of this assessment is by means of the lien created upon the property, which can only be enforced by a sale of such property. An action upon such special tax bill is a statutory action to subject the property to plaintiff's demand. Such tax bill can only be collected out of the property charged with the benefit. It has no validity save as a lien on the land charged by it, and when the lien is destroyed, no charge remains. Seibert v. Copp, 62 Mo. 182; St. Louis v. Allen, 53 Mo. 56; Worcester Co. v. Worcester, 116 Mass. 193; Roxbury v. Nickerson, 114 Mass. 544; West Roxbury v. Minot, 114 Mass. 546; Seibert v. Tiffany, 8 Mo.App. 37; Leach v. Cargill, 60 Mo. 316; 2 Dillon on Muncipal Corporations, secs. 815, 816; Neenan v. Smith, 50 Mo. 525. (9) A personal judgment against the owner of property on account of assessments for public improvements is void; and any statute authorizing such judgment is unconstitutional. Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 44; Carlin v. Cavendish, 56 Mo. 286; St. Louis v. Bressler, 56 Mo. 350; Riley v. Forsee, 57 Mo. 390; Louisiana v. Miller, 66 Mo. 467.

Black P. J. Barclay, J., absent.

OPINION

Black,...