City of Carondelet ex rel. Reuter v. Picot

• Decision Date: 31 March 1866
• Citation: 38 Mo. 125
• Parties: CITY OF CARONDELET TO THE USE OF MARTIN REUTER, Plaintiff in Error, v. LOUIS G. PICOT, Defendant in Error.
• Court: Missouri Supreme Court

38 Mo. 125

CITY OF CARONDELET TO THE USE OF MARTIN REUTER, Plaintiff in Error,

v.LOUIS G. PICOT, Defendant in Error.

Supreme Court of Missouri.

March Term, 1866.

Error to St. Louis Circuit Court.

Jecko & Clover, for plaintiff in error.

I. The court below erred in sustaining the demurrer to the plaintiff' declaration. The City of Carondelet, among other enumerated powers has power to provide for the construction and repair of all side-walks and curb-stones, and for the cleaning of the same, and of the gutters, at the expense of the owners of the ground fronting thereon--Sess. Acts 1851 p. 145, s. d. 37 of § 4, Art. V. Section 5th enacts that “the city coun cil shall have power to make all ordinances which shall be necessary and proper for carrying into effect the powers specified in the preceding section, and all other powers vested by this act in the corporation, the city government, or any department or officer thereof.” By section 5, Art. VII, of the same act, p. 148, the city council “has power, by ordinance, to levy and collect a special tax,” &c. The act to incorporate the City of Carondelet, Jan. 16th, 1860--Laws 1860, p. 319, § 11, Art. VIII., provided that the cost of grading, paving, repairing, and re-paving, &c., shall be apportioned and charged on the adjoining lots, &c., in the manner to be prescribed by ordinance, and such lien and charges may be enforced by a special tax and sale, in such manner as shall be prescribed by ordinance. That a city may bring an action for taxes, see Thompson v. Gardner, 10 Johns. 404; Mayor and Com. Council of Baltimore v. Hughes, Adm'r, 1 Gill. & Johns. 480; Mayor v. Howard, 6 Harris. & J. 383; Clemens v. Baltimore, 16 Md. 208.

A claim for paving taxes may be recovered in assumpsit; and on a declaration containing an insimul computassent, supported by evidence, recovery may be had.

Defendant in error, in person.

If the cost of constructing the side-walk and placing the curb was a tax or charge lawfully assessed against the defendant, or the land, still plaintiff could not maintain an action at law for the amount. “For the collection of taxes, no right of action is given, with a few exceptional cases; nor are taxes contracts between party and party, either express or implied”--Pierce v. Boston, 3 Met. 521. “It is a rule,” (says Parsons, C. J.,) founded in sound reason, that when a statute gives a new power, and at the same time provides the means of executing it, those who claim the power can execute it in no other way. When we find a power in the plaintiffs to make the assessments, they can enforce the payment in the method directed by the statute, and not otherwise; and that method is by the sale of the delinquent's shares. This rule applies to all taxes, public and private. No action can be maintained to compel the payment of State, county or town taxes, except in the particular cases in which an action is given by the statute”--Andover v. Gould, 6 Mass. 44; re-affirmed in Andover v. Hay, 7 Mass. 102.

In the case of the City of Camden v. Allen, 2 Dutch. 401, 403, the question whether the remedy is exclusive or cumulative is discussed, and authorities cited for the rule that the remedy provided by the statute is exclusive of all others.

WAGNER, Judge, delivered the opinion of the court.

The court sustained a demurrer to the petition in this case, and the only question that arises is, whether the City of Carondelet had power by its charter to authorize the bringing of a personal suit against the defendant to the use of the plaintiff, for special taxes assessed against him for constructing side-walks, pavements, and putting up curbing, fronting his property in said city.

By the “Act to incorporate the City of Carondelet,” approved March 1st, 1851, (Sess. Acts 1851, p. 139,) in § 4, Art. V., power is given the city to remove all obstructions from the side-walks, and to provide for the construction and repair of all side-walks and curb-stones, and for the cleaning of the same, and of gutters, at the expense of the owners of the ground fronting thereon. Sec. 5 invests the city council with power to make all ordinances necessary and proper for carrying into effect the powers specified in the preceding section. By § 5, in Art. VII., power is delegated to the city council, by ordinance, to levy and collect a special tax on the holders of lots on any street, lane or avenue, or part of any street, lane or avenue, according to their respective fronts owned by them, for the purpose of grading or paving the side-walks of such street, lane or avenue, and for the purpose of lighting the same. And § 6, same article, gives the council power to direct by ordinance the manner in which any property, real or personal, advertised for sale, or sold for taxes by authority of the corporation, may be redeemed.

In pursuance of this charter, the city council of Carondelet, in August, 1853, passed an ordinance in relation to curb-stones and side-walks. The ordinance provides (§ 1) that for the setting of curb-stones and laying of side-walks, upon all property belonging to the city, and upon all lots where the owners object to have the same done by the city, or where the owner or owners neglect or refuse to have the same done as provided for by ordinance, the engineer, under the direction of the mayor, shall proceed to let out such work by contract to the lowest and best bidder, taking good security for the faithful performance of the same. Provision is then made for notifying the owner or owners of lots, when the council directs the setting of curb-stones and laying of side-walks on any street; and where the engineer contracts to have it done on behalf of the city, it is made his duty, as soon as the work is done, to apportion the amount, and charge the same to the ground, according to its front on such street. Immediately after such apportionment, a certified copy thereof is to be delivered to the city register, and such apportionment is made a special tax and lien upon the property so apportioned. It is the duty of the register, as soon as he receives the apportionment, to deliver a copy of the same to the constable, who shall present the accounts contained therein to the respective property holders; and if payment is refused, he shall proceed to collect by levying on personal property. If the demand is not satisfied, or the money realized by the sale of personal property, the register is required to advertise the lots owned by the delinquents, on which the apportionment is charged, and sell the same. The manner of proceeding with the sale then pointed out; and provision is also made for redemption. Section 12 declares that whenever the mayor deems proper, he may order suit to be brought for non-payment of such special tax, instead of selling lots, and he shall direct the register accordingly; the suit to be brought,...