Bannon v. Burnes

• Decision Date: 02 September 1889
• Citation: 39 F. 892
• Parties: BANNON v. BURNES et al.
• Court: U.S. District Court — Western District of Missouri

39 F. 892

BANNON v. BURNES et al.

United States Circuit Court, W.D. Missouri, Western Division.

September 2, 1889

Johnson & Lucas, for plaintiff.

L. C Krauthoff, for defendants.

PHILIPS J.

This is an action of ejectment to recover possession of lot 62 in Swope's addition to the city of Kansas, Mo. This lot is the north end of the site on which is constructed the United States custom-house, post-office, and court-house. The defendants are the surveyor of the port and custodian of the custom-house building, and other government officials occupying offices in said building. The plaintiff claims title under a tax-deed from the collector of Kansas City dated November 6, 1885, predicated on a sale made January 4 1884, for the payment of taxes claimed to be delinquent for the year 1879. At the time said taxes became delinquent Malvina D. Hughes was the owner of said property, and on the 9th day of April, 1879, she conveyed the same by warranty deed to the United States, for a valuable consideration, to be used and occupied by it for a United States custom-house, post-office, court-house, and other like public business. The cause was submitted to the court for trial without the intervention of a jury. The facts in evidence, so far as they are material, will appear in the following discussion. Various objections are urged by counsel for the government against the validity of the tax-deed. Without considering and determining others, we pass at once to the consideration of one of gravest importance. The record evidence shows that at the tax-sale held in said city in October, 1879, this property, after due steps taken thereto, was put up for sale for delinquent taxes of 1879, and was bid in by the city auditor for the city, pursuant to directions from the city comptroller. Section 50, art. 6, of the city charter provides, in substance, that if any real property cannot be sold for the amount of taxes, interest, and cost, the city auditor shall, if directed by the comptroller, bid it off to the city for such amount. Thereupon the city auditor shall made a record of the same in a book of sale, by stating such fact of a sale to the city, and the date of the same. No certificate, however, shall be issued on such sale; but any person may thereafter pay to the city collector the sum so bid, including costs, etc., and receive from the collector a certificate dated the day when it is issued, describing the property, etc., which certificate, before it shall be of any validity, shall be assigned to such person by the city auditor, who shall note the same on his book of sales, and such certificate, so assigned by the city auditor, shall vest all the interest of the city in or to such real property in such person; and such certificate shall be assignable to the same extent and in like manner as certificates given to purchasers at tax-sales, and shall entitle such person to the same rights and privileges thereunder as if he had purchased the same at a tax-sale.

The question arises, by what authority of law was this property again advertised and sold to plaintiff in 1884? There does not appear in the charter any express provision for readvertising and selling as delinquent land so bought in by the city. As the whole authority of the city collector to take any action or step towards the sale of the citizen's property and the divestiture of his title comes from the legislative grant of the sovereign, the state, any such course as was pursued in this case should be clearly marked out in the charter, or appear by necessary implication. The charter does specify what the city may do with the property so bought in by it. Said section 50 provides for its transfer by assignment to any one who will pay the amount of the bid, with penalties, costs, etc.; and section 76 provides for suit by the city, whereby the equity of redemption of the owner may be cut off, and for the absolute sale in rem under special execution. It is not to be concealed that other provisions of the charter seem to contemplate that all unpaid taxes from year to year shall be carried on the land-tax books, so as to show all the antecedent unpaid taxes, and for what year delinquent. But all these general provisions precede and lead up to the section directing the public sale for such delinquent taxes. Section 42 declares that 'on the first Monday in October in each year the city collector shall offer at public sale, at his office, in the city of Kansas, all real property on which taxes or special assessments shall remain due and unpaid, and such sale shall be made for and in payment of the total amount of taxes and special assessments, interests, and costs, due and unpaid on such real property. ' Then follows section 43, which prescribed with much particularity what the notice of sale shall contain. It shall contain 'the several parcels of real property to be sold, and all delinquent taxes and assessments thereon, and such real property as has not been advertised and sold for the taxes of any previous year or years,' etc. Section 50 clearly treats the buying in by the auditor for the city as a sale; for it expressly declares that when any real property shall be bid off for the city, it shall be the duty of the city auditor to make a record of the same in a book of sales, by stating such fact of sale to the city. And as further proof, by the latter part of this section, provision is made for any stranger taking the benefit of the sale by paying to the city collector, not the taxes, etc., yet due and unpaid, but 'a sum of money equal to the amount of all taxes, interests, and costs' on such property at the time of such payment; and the certificate to be given to such assignee of the city 'shall vest all the interest of the city in or to such real property in such person. ' 'All the interest of the city,' as here expressed, necessarily implies that the city acquired such interest as a purchaser at such land-tax sale. It could have no other assignable interest. And the fact that the holder of a certificate of payment of taxes to the city collector is placed upon the same plane of right as the original purchaser at public sale, being entitled at the end of the prescribed period to an absolute deed, forcibly demonstrates that in contemplation of the charter the bidding in for the city constitutes a sale; and therefore this lot could not be readvertised and sold, because it could not be said, as required in said section 43, that it was 'such real property as has not been advertised and sold for the taxes of any previous year. ' If after this 'bid in' for the city some third party had paid to the city the sum equal to the taxes, etc., and received the prescribed certificate, and it had ripened into a right to a deed, such deed, to be of any validity, would have to recite that this property was sold at public sale and for the payment of taxes. Section 65, art. 6, of the Charter; Sullivan v. Donnell, 90 Mo. 282, 2 S.W.Rep. 264; Hopkins v. Scott, 86 Mo. 140. Consequently and necessarily the bidding in by the city constitutes a public sale for taxes, as prescribed in section 42 of the charter. The power to so advertise and sell is conferred alone by said section 42, except in the instance where the land for the lack of any bidder may not be sold at all. Section 75. Once exercised by the delegated agent, the power to advertise and sell was exhausted, and the agency therefor ceased. Any reassertion of such power must have for its warrant express authority. We fail to find it in terms in the charter.

Plaintiff's tax-title, therefore, must fail, unless, as suggested in the argument, the imputed infirmity be helped by the provision of section 64 of said article of the charter, which declares that the tax-deed, made after the prescribed form, shall be conclusive evidence of almost everything essential to its validity, except that proof may be made that the taxes were paid before sale, or that the property was not subject to this taxation, or that it had been redeemed, or the money tendered. It is to be conceded that the provisions of this charter respecting the validity of such deeds are very sweeping. And while the courts should treat with great respect the enactments of the legislative department of government, yet the courts, which stand as the last resort of the citizen, and the sworn guardian of his property rights, cannot fail to recognize that there are some things which even the legislature cannot do. It cannot take the citizen's private property, even for public use, without due process of law. It cannot prescribe a method by, and the conditions on which, property may be sold for taxes, and by the same act declare that when sold the deed shall be good, although the prescribed method was not pursued and the required conditions of sale were not regarded; especially where such conditions are precedent facts essential to confer jurisdiction on the body or person undertaking to sell. Due process of law is not any process which legislative power may devise. As said by Mr. Justice CURTIS in Murray's Lessee v. Improvement Co., 18 How. 276: 'The article (of the constitution) is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress (the legislature) free to make any process 'due process of law' by its mere will.'

The city charter prescribes that certain facts shall exist to authorize the city collector to advertise and sell, as has already been stated. It is a well-established principle of law that in proceedings in invitum looking to the seizure and appropriation of private property for public uses, every fact which in its nature is jurisdictional must exist before jurisdiction attaches to the tribunal...