Austin v. Dickey

• Decision Date: 03 July 1928
• Docket Number: 24691
• Parties: Edward Austin et al. v. W. S. Dickey et al., Appellants
• Court: Missouri Supreme Court

9 S.W.2d 593

320 Mo. 682

Edward Austin et al. v. W. S. Dickey et al., Appellants

No. 24691

Supreme Court of Missouri

July 3, 1928

Motion for Rehearing Overruled. October 2, 1928.

Appeal from Jackson Circuit Court; Hon. Willard P. Hall Judge.

Reversed and remanded (with directions).

Miller Winger & Reeder, Caleb S. Monroe and Clarence S Palmer for appellants.

(1) All the questions involved in this case have been determined by this court in favor of appellants. Seested v. Dickey, 318 Mo. 192. (2) Kansas City had the right to re-issue the tax bill involved in this case, at the time and in the manner in which it acted. (a) Section 27, Article 8, of the Kansas City Charter, does not constitute a limitation of one year on the time to re-issue the tax bill, for the reason existing in this case. Mention of time is merely directory. Savings Bank v. Ridge, 79 Mo.App. 26, affirmed 183 Mo. 506; Riley v. Stewart, 50 Mo.App. 594; Paving Co. v. Field, 134 Mo.App. 663; Lewis' Sutherland Statutory Construction (2 Ed.) secs. 611, 612; State ex rel. v. Ry. Co., 113 Mo. 297; St. Louis Co. v. Ringo, 42 Mo.App. 115; People v. Allen, 6 Wend. 486; Walker v. Chapman, 22 Ala. 116; Commissioners' Court of Limestone Co., 48 Ala. 435; Burkley v. Omaha, 102 Neb. 308; Yengel v. Allen, 179 Iowa 633; Higgs v. Amlen, 39 N. J. 618; State ex rel. v. Trust Co., 76 Minn. 423; Anderson v. Mayfield, 93 Ky. 230; Custer Co. v. Yellowstone Co., 6 Mont. 39; Stayton v. Hulings, 7 Ind. 144; Harkan v. Beasley, 11 Ga.App. 273. The maxim expressio unius est exclusio alterius does not control. Grubbe v. Grubbe, 26 Ore. 363; Lewis' Sutherland Statutory Const. (2 Ed.) sec. 495; Montville v. Houghton, 7 Conn. 543; Lexington ex rel. v. Commercial Bank, 130 Mo.App. 687; McGrew v. Railroad, 230 Mo. 528; McQuiston's Adoption, 238 Pa. 304; Fisher v. St. Louis, 44 Mo. 483; Blevins v. Mullaly, 22 Cal.App. 519. (b) No two-year statute of limitations is involved in this case. A tax bill which was held invalid, because payable in one year, and whose lien extended for only two years, could not set running a statute of limitations. (c) No five-year statute of limitations applies. The new tax bills became liens on June 8, 1920, within five years from the date of issue of the first tax bills. Secs. 1, 3, 11, 22, 23, Art. 8, Kansas City Charter. (d) The only five-year statute is the general statute of limitations. Sec. 1317, R. S. 1919. This does not apply. Only the city could have pleaded this statute. Allen v. Smith, 129 U.S. 465; Sanger v. Nightingale, 122 U.S. 176. (3) The provision of the Kansas City Charter assessing property for the cost of grading back to the middle of the block, on each side of the street graded, as applied to the taxing district, in the case at bar, does not violate any constitutional provision. Gast R. & Inv. Co. v. Schneider Granite Co., 240 U.S. 55; Ruecking Const. Co. v. Withnell, 269 Mo. 546, affirmed Withnell v. Ruecking Const. Co., 249 U.S. 63; Commerce Trust Co. v. Keck, 283 Mo. 209. (4) While the decision of this court in Commerce Trust Co. v. Keck, 283 Mo. 209, indicates that a small amount of land should be added to the taxing district, to help pay for the cost of the work involved in this case, it is perfectly competent for the court to make such correction, and, upon testimony, to determine the amount of reduction of the tax bill. Commerce Trust Co. v. Keck, 283 Mo. 234; Neenan v. Smith, 60 Mo. 292; First Nat. Bank v. Arnoldia, 63 Mo. 229; First Nat. Bank v. Nelson, 64 Mo. 418; Neil v. Ridge, 220 Mo. 233; Embree v. Road District, 257 Mo. 593, affirmed 240 U.S. 242. (5) The inclusion of the amount of material, removed outside the vertical lines of the street, was proper, being necessary to protect the work expressly provided for in the proceedings and contract. Respondents requested that this very work should be done. Kansas City had the right to require this work to be done, as extra work, and to determine the cost thereof. Allen v. Rodgers, 20 Mo.App. 290; Johnson v. Duer, 115 Mo. 366; Heman v. St. Louis, 213 Mo. 538; State v. Jersey City, 29 N. J. 441; Wood v. Fort Wayne, 119 U.S. 312; Slusser v. Burlington, 47 Iowa 300; White v. New Orleans, 15 La. Ann. 667. (6) Respondents are estopped from claiming that the taxing district established by the Kansas City Charter is a violation of any constitutional provision or that the material excavated outside the vertical sides of the street should not be included in the tax bills. Herman on Estoppel (2 Ed.) secs. 733, 1221; Cross v. City of Kansas, 90 Mo. 13; City of Burlington v. Gilbert, 31 Iowa 357; Bigelow on Estoppel, p. 755; Vaile v. City of Independence, 116 Mo. 333; Fitzgerald v. DeSoto Special Road Dist., 195 S.W. 695; State ex rel. v. Mastin, 103 Mo. 508; Daniels v. Tierney, 102 U.S. 415; Paving Company v. Fleming, 251 Mo. 210.

Scarritt, Jones & North for respondents.

(1) The court may not upon this record diminish and fix the charge stated in each tax bill. The following section of the charter and cases are cited and analyzed to show that they do not support the proposition that a partial recovery can be had on these tax bills. City Charter, Art. 8, sec. 24, p. 339; Commerce Trust Co. v. Keck, 283 Mo. 209; Neil v Ridge, 220 Mo. 233; Johnson v. Duer, 115 Mo. 356; Creamer v. McCune, 7 Mo.App. 91; First Natl. Bank v. Nelson, 64 Mo. 418; Neenan v. Smith, 60 Mo. 292; First Natl. Bank v. Arnoldia, 63 Mo. 229. (2) The abortive assessment of June 8, 1915, is invalid as a charter assessment. The assessment or apportionment of the cost of this work essayed to be made by the Board of Public Works on June 8, 1915, was irregular, erroneous, defective and invalid, and the bills in suit, the re-issued bills, issued and delivered on July 13, 1920, to evidence that invalid assessment and apportionment, are not the things the charter defines as tax bills, and are accordingly void. (a) The board was guilty of omitting and failing to describe the lawful tax-assessable district in its order upon the city assessor to value the lands therein for the purpose of assessing or apportioning the cost of this work, and the board thereby violated its charter duty. The city assessor was guilty of omitting and failing to value all of the lands legally chargeable with the cost of this work as the charter required him to do. He thereby violated his charter duty. The charter is mandatory that the board shall apportion the grading cost, and charge each tract of land within the taxable district with its due share thereof according to the value of each lot as returned by the city assessor. No other means of apportioning that case than accordingly with the valuations of the city assessor is provided in the charter. The board is required to get that valuation from him and apportion and charge accordingly. This it did not do. Without such assessor's valuation of each and every tract subject to assessment the board is incompetent to make a legal and valid assessment. (b) Whenever by legislative enactment power is conferred upon a particular tribunal to perform certain acts relating to the exercise of the power of taxation such legislative enactment is mandatory in its nature and must be strictly observed and the power is to be exercised only by the tribunal upon whom it is conferred, and if not so exercised the tax levy is void. State ex rel. v. Railroad, 149 Mo. 365; Railroad v. Apperson, 97 Mo. 300; State ex rel. v. Railroad, 87 Mo. 236. (c) When lands within a legally assessable district fixed by proper authority are entirely omitted from assessment the effect is that a different taxing district from the legal district has been formed unlawfully by unauthorized officials and a purported assessment on the unauthorized district disturbs the principles of apportionment and assessment and renders the entire assessment void. Hamilton, Law of Taxation by Special Assessment, sec. 542; 1 Page & Jones on Taxation, sec. 369; In re New York Protestant Episcopal School, 75 N.Y. 324; Spokane Falls v. Brown, 3 Wash. 84; Klein v. Nugent Gravel Co., 162 Ind. 509; In re Klock, 51 N.Y.S. 909. (d) Those who deal with public officials are conclusively presumed to know the extent and limit of their authority. Mister v. City of Kansas, 18 Mo. 217; City of Nevada v. Eddy, 123 Mo. 557; In re Klock, 51 N.Y.S. 897; St. Louis v. Tel. Co., 96 Mo. 623. There never has been a valid and legal assessment by the Board of Public Works. City Charter, Art. 8, sec. 3, p. 314. (e) Judge Goode in his opinion in Dickey v. Seested, 283 Mo. 167, a suit to enforce one of the original demand bills for this work, did not rule that the assessment and apportionment of the cost involved in the case at bar was a valid one. (3) Without a legal and valid assessment no special tax can be laid or collected by virtue of the city charter through a tax bill or otherwise. A legal and valid assessment is an essential step in the process of special taxation as established by the city charter. State ex rel. v. Railroad, 149 Mo. 635; Railroad v. Apperson, 97 Mo. 300; Dickey v. Seested, 283 Mo. 188; Reassessments, City Charter, Art. 8, sec. 27. The Board of Public Works by the city charter is empowered and solely empowered to make the assessment or apportionment of the cost of grading a street and that power cannot be delegated nor can the essential acts be shifted to other parties. McQuiddy v. Vineyard, 60 Mo.App. 610; Dollar Savings Bank v. Ridge, 62 Mo.App. 324; State ex rel. v. Railroad, 149 Mo. 635; Railroad v. Apperson, 97 Mo. 300; Hamilton on Law of Taxation by Special Assessment, sec. 542; 1 Page & Jones on Taxation by Assessment, sec. 639; In re New York Protestant Episcopal School, 75 N.Y. 324; Spokane Falls v. Browne, 3 Wash. 84, 27 P. 1077; Klein v. Nugent Gravel Co., 162 Ind. 509. (4) The...