Douglas v. City of Kansas City

• Citation: 147 Mo. 428,48 S.W. 851
• Court: United States State Supreme Court of Missouri
• Decision Date: 23 December 1898
• Parties: DOUGLAS v. CITY OF KANSAS CITY.

48 S.W. 851

147 Mo. 428

DOUGLAS v. CITY OF KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

December 23, 1898.

APPELLATE JURISDICTION — AMOUNT INVOLVED — MUNICIPAL CORPORATIONS — TERRITORIAL EXPANSION — ILLEGALITY — RIGHT TO COLLECT TAXES — INVOLUNTARY PAYMENTS — ASSIGNABILITY OF CLAIM AGAINST CITY.

1. When there are cross appeals in the same case, and the aggregate amount in dispute in both appeals exceeds $2,500, the supreme court has jurisdiction.

2. A city has no right to collect license taxes from residents of territory which it has illegally annexed.

3. If the officers of a city exact in its behalf an illegal license tax, under threat of immediate arrest, and they are clothed with power to execute their threat, a payment made to avoid such consequence is not voluntary, and may be recovered back.

4. The assignability of claims against a city for illegal taxes collected will not be determined, where it was stipulated that the assignee was the bona fide owner thereof, and the cause was tried upon this theory.

5. An illegal license tax paid cannot be recovered back where there is no evidence of threats to enforce payment, nor that the persons paying the same were even notified to pay.

Appeal from circuit court, Jackson county; Charles L. Dobson, Judge.

Action by Carlos C. Douglas against the city of Kansas City to recover back illegal taxes paid. From the judgment rendered, both parties appeal. Affirmed.

C. O. Tichenor, for plaintiff. R. B. Middlebrook, for defendant.

WILLIAMS, J.

1. Our attention is first called by this record to a jurisdictional inquiry. Plaintiff sued for $2,682.50, and upon the trial obtained judgment for $1,218.60. There are cross appeals in the case. Plaintiff complains that the circuit court erred in refusing to award him the full amount of his demand. The city, upon the other hand, makes the objection that he was not entitled to recover anything. This, we think, opens up the whole case, and the entire sum in controversy between the parties is the "amount involved." If plaintiff alone had appealed, the difference between his claim and the judgment rendered in his favor would be the criterion by which to determine our jurisdiction. "The remainder for which plaintiff failed to get judgment would be the amount in controversy." Hilton v. Dickinson, 108 U. S. 165, 2 Sup. Ct. 424; Finkl. App. Prac. 26. If, however, defendant was the only complaining party, the amount of the judgment against it would control. Here we have both parties appealing. Still there is only one case. Both appeals, being in the same cause, must be heard by the same court. Ellis v. Harrison, 104 Mo., loc. cit. 280, 16 S. W. 200. The real amount involved at this time in the controversy between the parties to this record, which must be determined by the appellate court, is the entire sum sued for, to wit, $2,682.50. It was said by Brace, J., in State v. Lewis, 96 Mo., loc. cit. 148, 8 S. W. 770: "The amount in dispute, by which the jurisdiction of the appellate court is to be determined, is not necessarily fixed by the amount of the judgment appealed from (State v. Court of Appeals, 87 Mo. 569), nor by the amount claimed in the cause of action sued upon (Kerr v. Simmons, 82 Mo. 269), but by the amount that remains in dispute between the parties on the appeal, and subject to determination by the appellate court of the legal questions raised by the record. * * * Two amounts were in dispute in this case in the trial court, — the amount claimed by the plaintiffs on their cause of action, and the amount claimed by defendant on its counterclaim. * * * The finding of the circuit court in defendant's favor on the counterclaim, the plaintiffs not having appealed, eliminates that dispute from the case." The plain inference is that, if plaintiffs had appealed, the item mentioned would not have been eliminated, but would have entered into the computation in determining "the amount involved" in the case as it stood in the appellate court. Both parties appealed in Reichenbach v. Association, 47 Mo. App. 77. There were two counts in plaintiff's petition. The first was to recover $1,000, and the second was for $2,000. There was a verdict for defendant upon the first count, and for plaintiff for the full amount sued for in the second count. The plaintiff and defendant each took an appeal from the judgment. The St. Louis court of appeals, being in doubt about its right to hear the matter, certified it to this court. Plaintiff in the meantime dismissed her appeal. Barclay, J., in disposing of the case, said: "Here the appeal from the judgment against defendant, based upon the finding upon the second count, is the only matter for examination, and defendant alone complains of that judgment. In this state of the record, we are of the opinion that the amount involved is to be determined as though defendant alone had originally appealed. The finding upon the first count has become a final adjudication, and is no longer `in dispute' by either party." Reichenbach v. Association, 112 Mo. 22, 20 S. W. 317. If both appeals had remained, a different question would have been presented. We hold that when there are cross appeals in the same case, and the aggregate amount in dispute in both appeals exceeds $2,500, the supreme court has jurisdiction; in other words, that the amount really in controversy between the parties as the case stands in the appellate court, and which will be concluded by the judgment to be rendered by such court in disposing of the appeals of both parties, furnishes the test of appellate jurisdiction.

2. We come now to a consideration of the case on its merits. We will first examine the complaint of Kansas City, that the court erred in rendering any judgment whatever against said city. Three reasons are assigned for this contention. They will be taken up in the order in which they are submitted in the brief:

(1) Kansas City on the 4th of December, 1889, attempted to extend its corporate limits. Its action in that behalf was without authority of law and void. A decision of this court to that effect was announced on the 19th of January, 1891, City of Westport v. Kansas City, 15 S. W. 68. In the meantime Albert Lange, Joseph Stephens, Augustus Hahn, and plaintiff were engaged in business as saloon keepers, outside of said city, but in the territory which it attempted to include within its borders. The officers of the city demanded a license tax from them. They at first refused to pay it. They did not comply until defendant's officers had threatened to arrest them and close their places of business, unless they did so. Lange was in fact arrested for failing to pay more promptly, after he had taken out his license. Stephens was taken in charge by the police, and secured his release by paying the tax. Lange, Hahn, and Stephens assigned to plaintiff their claims against the city for the money so obtained from them. This suit is to recover said money and also the sums paid by a number of other parties who transferred their demands to plaintiff. The court declared the law to be that if defendant claimed the right to collect the taxes, and threatened the arrest of the parties, unless the same were paid, and it had the ability to carry the threats into execution, and any of the sums sued for were paid under those circumstances, then said payments were not voluntary, and might be recovered back. Judgment was rendered against the city for the amounts exacted from Hahn, Lange, Stephens, and plaintiff; and it is of this that the defendant complains. It is argued that after the attempt to extend the limits of the city over the territory in which plaintiff and his assignors were doing business, and before the invalidity of that attempt had been judicially determined by this court, the city established a de facto government in the country embraced in the extended boundaries. Police and fire protection were furnished the annexed district, and it is said these taxes were expended in that manner, and for other municipal purposes therein. The argument is advanced that, "as a completely organized de facto government in the newly-annexed territory, the city had the right to collect the licenses in question, and to use duress to make the collection." We cannot give our assent to this proposition. Kansas City was a municipal corporation of the state, and its boundaries were defined by law. It had no authority to exercise any control over territory beyond its' borders. The effort to extend its limits was absolutely null, and conferred no rights upon the city. The matter stood as if no such steps had ever been taken in that direction. It was said by Brace, J., in Couch v. Kansas City, 127 Mo., loc. cit. 438, 30 S. W. 117, upon this subject: "Prior to this extension, the lands of the plaintiff and his assignors were without the limits of the city, and not subject to taxation for city purposes; and, the extension being illegal and void, the taxes thus assessed and paid were illegal." Rules applicable to de facto governments have no place in this suit. The district sought to be taken within the city was under the jurisdiction and subject to the laws of this state. Our cities cannot acquire territory "by conquest," and claim the rights of a de facto government therein. This is a policy of municipal "expansion" "not in harmony with the constitution and laws of Missouri." The matter stands, from a legal standpoint, precisely as if Kansas City, without any attempt to make the extension, had exacted this money from plaintiff and his assignors. The fact that it assumed a jurisdiction which it did not possess, and attempted to extend its municipal control to a place and over persons, when it had, under the laws of the state, no rightful authority so to do, cannot give any legal force or validity to its acts, and constitutes no...