City of Westport v. McGee

• Decision Date: 12 April 1895
• Citation: 128 Mo. 152,30 S.W. 523
• Parties: CITY OF WESTPORT ex rel. KITCHEN v. McGEE.
• Court: Missouri Supreme Court

30 S.W. 523

128 Mo. 152

CITY OF WESTPORT ex rel. KITCHEN v. McGEE.

Supreme Court of Missouri, Division No. 2.

April 12, 1895.

TAXATION BY CITY — ABSTRACT OF COUNTY ASSESSMENT — EXTENSION OF CITY — AGRICULTURAL LANDS — EXEMPTION FROM TAXATION — CONSTITUTIONALITY OF ACT.

1. Under Rev. St. 1889, § 1604, making the assessment for state and county the basis of municipal taxes, and authorizing the mayor to obtain a certified abstract of the county assessment on May 1st of each year, in lieu of an assessment by the city, there is no lien until the tax is levied and extended by the city council on its tax book; and a tax levied by the city, on the basis of the county assessment made June 1, 1889, upon land not brought within the municipal limits till May 12, 1891, is valid, and the fact that the abstract was not procured till May 20th is immaterial.

2. Under Rev. St. 1889, § 7605, declaring that any state or county taxpayer who fails to pay his tax by a certain date shall be chargeable with a penalty of 1 per cent. per month, and section 1604, providing that payment of taxes in cities shall be enforced by the same rules as state and county taxes, the allowance of interest on a judgment for city taxes at 12 per cent per annum is legal.

3. Rev. St. 1889, § 1580, exempting from taxation agricultural lands exceeding five acres, included within the city limits, violates Const. art. 10, § 3, providing that taxes "shall be uniform upon the same class of subjects, * * * and taxes shall be levied and collected by general laws," and article 10, § 6, which exempts agricultural land only when "used exclusively for agricultural * * * societies."

4. Rev. St. 1889, § 1580, after providing for the extension of city limits, with no limitation on the power of the city over the land so annexed, declares that "all tracts of agricultural * * * lands included within the corporate limits of the city" which exceed five acres shall be exempt from taxation. Held that, though the exemption is unconstitutional, the power of extension is not so dependent upon it as to be invalidated thereby.

5. An unconstitutional enactment will not repeal a former valid law by mere implication.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by the city of Westport, at the relation of Ralf Kitchen, against A. B. H. McGee, to recover a tax on real estate. From a judgment for plaintiff, defendant appeals. Affirmed.

A. M. Allen, for appellant. C. O. Tichnor and R. J. Ingraham, for respondent.

GANTT, P. J.

This is an action to recover city taxes for the year 1891. The following facts were agreed upon at the trial in the circuit court: On the 12th day of May, 1891, the plaintiff enlarged its corporate territorial boundaries so as to include the lands of appellant, upon which he resided, and until that day the property described in plaintiff's petition was without the limits of plaintiff. (2) That the mayor of said city, the same being a city of the fourth class, procured from the county clerk of Jackson county, Mo., a certified abstract from the assessment books of said county, dated May 12, 1891, and being taken from the assessment made June 1, 1889, of all the property in the new limits of said city, as extended, made taxable by law for state purposes; said abstract showing the assessed value of all of said property as made by the assessor on the 1st day of June, 1889. That said abstract was about the 15th day of May, 1891, transmitted to the board of aldermen of said city, and they, on the 20th day of May, 1891, established the rate of taxation, and declared the levy thereof, and the property in this suit was contained in said certified abstract. (3) That the certified tax bill sued on herein is based on the certified abstract of the assessment books of said county and the levy of taxes made thereon by the board of aldermen of said city. (4) That each tract of land described in the certified tax bill herein contains more than five acres, and the same has never been platted into lots or blocks; that said land is a part of the residence property of the defendant, and is used by him exclusively for pasturage, and agricultural, horticultural, and gardening purposes. (5) That unless the matters herein set forth, and admitted to be true, prevent a finding in behalf of the defendant, then the judgment in this cause must be for and in favor of plaintiff, for the amount set forth in the tax bill herein, with penalty thereon as provided by law.

Upon the submission of the foregoing statement of facts to the court, the defendant, by his attorney, moved the court to declare the law to be that, upon the agreed statement of facts, the plaintiff cannot recover, and the finding and judgment of the court ought to be for the defendant, which declaration of law the court refused, to which refusal of the declaration thus prayed the defendant, by his counsel, then and there excepted at the time. The court found a verdict for the plaintiff in the sum of $175, with interest from the 20th day of May, 1893, at the rate of 12 per cent. per annum, and for costs of this suit, and declared the same to be a lien upon the property described in the petition, to wit: "South 10.77 acres of the east half of the northeast quarter of the northeast quarter and the north 13.50 acres of the east half of southeast quarter of northeast quarter of section 19, township 49, range 33.

1. Was the city authorized to levy a tax on defendant's land around which it first extended its boundaries on May 12, 1891? Defendant's denial of this right is based upon the provisions of law which required all real estate in Jackson county to be assessed June 1, 1889. He assumes that, because the initial day of the assessment fixes the commencement of the lien for state and county taxes by virtue of the revenue laws (Rev. St. Mo. 1889, §§ 7552, 7569, 7531; Blossom v. Vancourt, 34 Mo., loc. cit. 395), that city taxes must also relate either to that date or June 1, 1890 (as assessments are made only once in two years), and that as his land was not in the city at the time fixed for the attaching of the liability, and could not in 1889 or 1890 be charged with city taxes, any subsequent levy by the city upon the valuation fixed by the state and county assessment was without the sanction of law. But we think this is a misapprehension of the purpose and effect of the legislation on this subject. To save expense and insure uniformity of valuation of city property for taxation, the legislature dispensed with a city assessor, and provided that the assessment for state and county should be the basis of municipal taxes, and, instead of an assessment by the city, simply required the mayor to obtain a certified copy of the county assessment on May 1st of each year. Rev. St. 1889, § 1604. A lien is given for municipal taxes, but there is nothing in the statute that justifies the claim that the lien for the city taxes relates to the date of the county assessment. On the contrary, the city council must by ordinance establish the rate of taxes upon the county assessment, and there is no lien until the tax is levied and extended by the city council on its tax book. The question here is, were these lands within the corporate limits when the tax was levied? If they were, they are subject to city taxation. If lands are brought into the city after taxes have been levied upon the property of the city, the lands subsequently brought in are not subject to that levy. There is nothing in the law requiring the city to levy taxes on a certain day,...