Barber Asphalt Pav. Co. v. City of St. Joseph

• Decision Date: 01 July 1904
• Citation: 82 S.W. 64,183 Mo. 451
• Parties: BARBER ASPHALT PAVING COMPANY v. CITY OF ST. JOSEPH, Appellant
• Court: Missouri Supreme Court

82 S.W. 64

183 Mo. 451

BARBER ASPHALT PAVING COMPANY v. CITY OF ST. JOSEPH, Appellant

Supreme Court of Missouri, First Division

July 1, 1904

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

James M. Wilson and G. L. Zwick for appellant.

(1) Plaintiff's petition stated no cause of action and the court should have sustained defendant's objection to the introduction of evidence for that reason. The petition counted upon special taxbills made out against specific property and charging the respective amounts as a lien upon that property, and for that reason, stated no cause of action entitling it to a general or personal judgment. Neenan v Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo 44; Clinton ex rel. v. Henry Co., 115 Mo. 557; R. S 1899, secs. 5661, 5662, 5663, 5664. (2) The power of local taxation for public improvements is put upon the ground of compensation for the reason that the property assessed is especially benefited and enhanced in value to the extent of the assessment. Neenan v. Smith, 50 Mo. 525; Shehan v. Hospital, 50 Mo. 155; Kansas City Grading Co. v. Holden, 107 Mo. 311. For that reason it can not be the basis of a personal or general judgment. "A local assessment can only be levied on land; it can not, as a tax can, be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited." Cooley on Taxation (2 Ed.), 607. A personal or general judgment on account of such improvements is void; and a statute authorizing such judgment is unconstitutional. Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 44; Clinton ex rel. v. Henry Co., 115 Mo. 569; Pleasant Hill v. Dasher, 120 Mo. 679. (3) Revised Statutes 1899, section 5682, in so far as it attempts to make the city liable for the amount of taxbills, is unconstitutional and void, not only for the reasons above stated, but because it is in conflict with sections 6, 10 and 12 of article 10 of the Constitution of Missouri. If the common council, by passing an ordinance for street paving, and the city engineer, by issuing the taxbills, can impose an indebtedness upon the city without anything more, then a way has been found to defeat the letter and the spirit of the Constitution. But even if it can be said that section 5682, Revised Statutes 1899, is not unconstitutional, yet its effect is only to authorize the city to become indebted in the manner pointed out in its charter as shown by section 5557, Revised Statutes 1899.

Scarritt, Griffith & Jones for respondent.

(1) The words "taxes" and "taxation" as used in section 6 and section 10, article 10 of the State Constitution, upon which defendant relies to exempt the lots in question from all special assessments, are held not to apply to special assessments of benefit arising from a public improvement. Clinton ex rel. v. Henry Co., 115 Mo. 557; Morrison v. Morley, 146 Mo. 544; Kansas City v. Bacon, 147 Mo. 301; Cooley's Const. Lim. (7 Ed.), p. 716. (2) The facts in the record do not bring this case within the terms of section 12, of article 10, of the State Constitution. The record is absolutely silent as to the amount of the indebtedness, income or revenue of the city of St. Joseph during any year. (3) Section 5682, Revised Statutes 1899, authorizing and directing that the judgment in such suits as this shall be the same as ordinary judgments for the recovery of money on contract is a valid law. Clinton ex rel. v. Henry County, 115 Mo. 570; St. Louis v. Allen, 53 Mo. 54; secs. 5379, 5384, R. S. 1899; Hassen v. Rochester, 67 N.Y. 528. (4) The statute authorizing the issue of the special taxbills sued on specially directs that they shall bear interest at the rate of ten per cent per annum. Secs. 5664, 5682, R. S. 1899. The decisions of this State uniformly uphold such statutory provisions relative to interest on taxbills. Eyerman v. Blaksley, 78 Mo. 152; Buchan v. Broadwell, 88 Mo. 37; Barber Asphalt Paving Co. v. Ullman, 137 Mo. 570. (5) Appellant's contention based on Revised Statutes 1899, section 5557, that the taxbill in question is void because no appropriation has heretofore been made to pay the same, is without merit. St. Louis v. Alexander, 23 Mo. 508; State v. Green, 24 Mo.App. 231; Hoey v. Gilroy, 129 N.Y. 138; State v. Trenton, 39 N. J. L. 67; Endlich, Interp. Stat., secs. 223, 224; Smith v. St. Joseph, 122 Mo. 643; Pryor v. Kansas City, 153 Mo. 135.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a general judgment of the Buchanan circuit court in favor of the plaintiff against the city for the sum of $ 1,631.70, in an action on five special taxbills issued under the provisions of sections 5661 et seq., of article 3, chapter 91, Revised Statutes 1899, governing cities of the second class, to which the defendant belongs, for the proportionate amount of the cost of constructing the curbing, guttering and roadway of Third street from the north line of Jule to the south line of Franklin street in said city, charged against five lots, owned in fee simple absolute by the city, fronting on said street and improvement, and used for the purposes of a city workhouse. There is no dispute about the facts. The judgment was rendered in pursuance of the following provisions of section 5682 of said statute:

"When the city owns in fee simple absolute any lot or parcel of land liable to be charged for work by special taxbill, and in any case of improvement alongside of a public square, or other place held for public use other than a street, avenue, alley or highway, the city shall, out of the general revenue of the city, pay its proportionate share of the cost of the work mentioned in section 5661, a taxbill against the city to be issued, in which the city may be sued in default of payment; but no property held for public use shall be sold, and the judgment shall be the same as ordinary judgments for the recovery of money on contract."

The objection to the judgment will be considered in the order presented by counsel for appellant.

(1) It is contended that the demurrer to the evidence ought to have been sustained because the petition counted upon special taxbills which charged the proportionate cost of the improvement upon the lots in question, and in such an action a general judgment can not be rendered -- and in support of this contention the following cases are cited: Neenan v. Smith, 50 Mo. 525; City of St. Louis to use v. Allen, 53 Mo. 44; Kansas City Grading Co. v. Holden, 107 Mo. 305, 17 S.W. 798; City of Clinton ex rel. Thornton v. Henry County, 115 Mo. 557, 22 S.W. 494; City of Pleasant Hill v. Dasher, 120 Mo. 675, 25 S.W. 566. In all these cases, except City of Clinton v. Henry County, 115 Mo. 557, 22 S.W. 494, the suits were against private property-owners. In that case the suit was against the county on special taxbills against the courthouse square. That case was well considered and reviewing the precedent cases, it was said per Black, P. J., speaking for the court:

"It was held in the case of St. Louis to use v. Clemens, 36 Mo. 467, under a law making taxbills a lien on the property assessed, and providing that the contractor might collect the taxbills by 'ordinary process of law,' that the proceeding was one in personam, and that the contractor was entitled to a general judgment to be enforced by a general execution. But that case was overruled by the subsequent cases of Neenan v. Smith, 50 Mo. 525, and St. Louis to use v. Allen, 53 Mo. 44. These cases hold that local assessments can be up-held alone on the ground of compensation in benefits to the particular property assessed, and in view of which it was held that the words 'ordinary process of law' meant such process as was adapted to the enforcement of the lien. The case last cited goes much further and holds, and holds distinctly, that a law attempting to authorize a general judgment over against the property-owner on a special taxbill would be unconstitutional and void. Since the ruling made in those cases it has been repeatedly held that the judgment must be, and can only be, one enforcing the lien against the particular property. Such is the settled law of this State. [Carlin v. Cavender, 56 Mo. 286; St. Louis to use v. Bressler, 56 Mo. 350; Seibert v. Copp, 62 Mo. 182; Louisiana v. Miller, 66 Mo. 467; Higgins v. Ausmuss, 77 Mo. 351.]

"According to these adjudications, proceedings to enforce special taxbills are in the nature of proceedings in rem, and compulsory payment of the judgment can only be made by a sale of the assessed property. As public property like that here in question can not be sold on general or special execution, and as the Legislature has provided no other remedy than that of enforcement of the lien, it is quite evident that the statute in question does not apply to or include property owned by a county and used for governmental purposes.

"It is true the cases last cited were all suits against private property-owners; and as it is within the power of the Legislature to make property devoted to public uses liable for local assessments, and as it is contrary to public policy to permit public property to be sold, we may and do concede that the Legislature can provide for the payment of local assessments against public property out of the general treasury. Such a provision would doubtless be sufficient to show an intent to make such property liable for these assessments; but the Legislature has made no such provision. The argument, therefore, that the courts can devise a remedy where there is a right, does not meet the issue in this case; for the real question is, whether the city had the power or right to levy the assessments upon public property, and we are unable to find any evidence of such a legislative intent."

And further on...