Fowler v. City of St. Joseph

• Decision Date: 28 February 1866
• Citation: 37 Mo. 228
• Parties: WILLIAM FOWLER, Respondent, v. THE CITY OF ST. JOSEPH, Appellant.
• Court: Missouri Supreme Court

37 Mo. 228

WILLIAM FOWLER, Respondent,

v.THE CITY OF ST. JOSEPH, Appellant.

Supreme Court of Missouri.

February Term, 1866.

Appeal from Buchanan Court of Common Pleas.

Vories & Vories, for appellant.

The rule of law that strictly construes the powers granted to a corporation, and requires all acts to be done in strict conformity with the provision of the act conferring the power, does not apply the construction of the ordinances passed by such corporation, and acts done by its officers in carrying out and executing a general power clearly granted, where the manner of the execution of the power is left to the discretion of the corporation. When a corporation is clearly invested with power to legislate upon a particular subject, and for a particular end, without being directed in the act to use any particular kind of legislation, then the ordinances passed by the corporation and the acts done by its officers in carrying into effect the general power granted are most liberally construed; and if they substantially follow the directory parts of such ordinances, and the end is accomplished, the acts of the corporation and her officers will be upheld by the courts. (Taylor v. City of Carondelet, 22 Mo. 106-12.)

The evidence in this case shows that the work was let and the contract completed, received and certified, substantially, in conformity with the charter and ordinances; and the work being really performed, as required by the contract, for a fair price, the plaintiff has no right to complain, and cannot have an injunction without at least tendering the amount due. (Page v. City of St. Louis, 20 Mo. 136; Risley v. City of St. Louis, 34 Mo. 404; City of St. Joseph v. Anthony, 30 Mo. 537; City of St. Louis to use, &c., v. Hardy, 35 Mo. 264.)

The plaintiff had no right to an injunction if the taxes were legally assessed and unpaid, as in such case he had a plain remedy, and could have prevented any irreparable damage done to the property by the payment of what was really due.

The approval of the form of the bond given for the execution of the work, and the endorsement thereof on said bond, and the filing of said bond with the city register, were directory acts prescribed by ordinance for the protection of the city in the faithful execution of the contract; and if the contract was faithfully executed and performed and the work received, the plaintiff is not injured and has no right to complain.

The evidence shows that the work was well done, and done for a fair price, and substantially in conformity with the law and ordinances governing the same, and that the city was following her legitimate right to collect the debt assessed therefor against plaintiff, and the court below ought to have found in favor of defendant.

The sale was advertised in substantial conformity with the law and ordinances, and plaintiff does not pretend that he would be injured by any defect in the advertisement.

The ordinance making the cost of work to be done a special tax, and authorizing the adjoining property to be advertised and sold for the collection thereof, only applied to the remedy used to collect money already due and to become due for taxes, and did not affect or change the obligation of the contract in any way whatever. It is therefore valid and binding, not being in conflict with any ordinance or law, or with the constitution of this State or of the United States. (Lessee of Buckley v. Osborne, 8 Ohio, 181.)Woodson & Jones, for respondent.

We hold that this court must affirm the decree of the inferior court upon the following grounds:

I. Because the appellant is a corporation and can exercise no power that is not expressly granted to it by the terms of its charter, or by necessary implication; and that in the exercise of its powers it must act in strict conformity with the law of its creation. (Head v. Providence Ins. Co., 6 Curt. Cond. U. S. 463-4; Perrine v. Chesap. & Del. Canal Co. 18 Id. 82: Beaty v. Knowles' Less. 9 Id. 40; Doe v. Chum, 1 Blackf. 336; Blackw. Tax Tit. 525.)

II. In all cases in which it is sought to sell land for the nonpayment of taxes a strict and literal compliance with the law must be shown on the part of all having any duty to perform in connection with the matter. (Thatcher v. Powell, 6 Wheat. 119; Williams v. Peyton's Lessee, 4 Mo. 74; McLurg v. Ross, 4 Curt. Cond. U. S. 582; Blackw. Tax Tit. 46-7; Early v. Doe, 16 How. U. S. 610; Doughty v. Hopes, 3 Den. 595; 9 Cranch, 64; 6 Mo. 74-5; Reed v. Morton, 9 Mo. 878; O'Brien v. Coulter, 2 Blackf. 421; Mason v. Frunson, 9 How. 248; Jackson v. Esey, 7 Wend. 148; 4 Hill, 86; Smith v. Hillmore, 1 Scam. 333.) All of the facts connected with the assessment and collection of the tax must be ascertained to exist before the power to sell attaches. (Blackw. Tax Tit. 37-8; Thatcher v. Powell, 6 Wheat. 119; Tallman v. White, 2 Comst. 70; Hughes v. Howe, 2 Hamm. 231; Farnam v. Buffum, 4 Cush. 267; 6 Mo. 64; 17 Mo. 161.)

III. The defendant and its agents seek to sell plaintiff's property, and deprive him thereof, when defendant admits, in its answer to the amended petition, that its agents have not complied with the law or ordinances regulating the sale of real estate for the nonpayment of costs assessed for improvements adjoining the property sought to be sold.

In the first place, an assessment of the property to be taxed must be made A listing and valuation of the land for taxation must be made within the time and in the manner required by law to render a tax title valid. This is a prerequisite which cannot under any circumstances be dispensed with. (Blackw. Tax Tit. 113-14; Isaacs v. Wiley, 12 Vt. 677; 9 Ohio, 93.) In this case certain of these prerequisites required by the city ordinances or charter have not been complied with.

Appellant insists that these regulations in the charter and ordinances are simply directory; but we hold that every requirement of the law, whether substantial or merely formal in its character, and having the semblance of benefit to the owner, which the Legislature have said shall attend the execution of the power, ought to be strictly observed by the officer intrusted with its execution, or no title will pass by the sale. (Blackw. Tax Tit., 81.)

The foregoing requirements of the charter and ordinances might be regarded as simply directory in a suit for the recovery of the costs of the work; but we deny that such is the case in a proceeding to recover land sold for taxes, or in a case like this one. (8 Port. 104; Yancy v. Hopkins, 1 Minor, 171; Br. Bank v. Bates, 2 Minor, 688 et seq.; Reed v. Morton, 4 McLean, 211.) The authorities all agree that no step in the entire proceeding, from the ordering of the work to be done down to the divestiture of the title of plaintiff, that was required by law, and that even had the semblance of advantage to plaintiff, can be dispensed with.

IV. Because the appellant was seeking to sell plaintiff's property to pay for costs that had never been made out and properly assessed under the amended charter against it, and consequently without any legal authority for so doing.

The ordinance prescribing the mode that is in force at the time the work is done, and payment demanded, is the only one that can prevail. When this work was done, and payment for doing it was refused by the defendant, the law provided that before payment could be coerced suit must be brought, and a verdict of a jury and judgment of a court of competent jurisdiction had. In other words, the individuals charged with the work, had the right to a trial by a jury before they could be compelled to pay for the work, and upon that trial they had the right to show that the work had not been done, or, if done, not well done; that they had been injured by the agents of defendant, by the manner in which such agents had discharged their duties. These were subsisting, legal, constitutional rights pertaining to the plaintiff at the time they refused to pay for the work. They cannot be deprived of those rights by virtue of the ordinance of October 27, 1859. The right of trial as it existed at common law is guaranteed by the constitution of the State, and that same constitution expressly provides that no one shall be “deprived of life, liberty, or property, but by the judgment of his peers, or the law of the land.” (See Mag. Charta; Vorgunt v. Waddle, 2 Yerg. 270; Burger v. Carter, 1 McMullen, 114; 5 Webst. Works, 487; Taylor v. Porter, 4 Neill, 146.) The phrase “law of the land” is well defined by the authorities here cited. We hold, then, that the amended charter of the defendant is unconstitutional and void so far as it attempts to confer the power of disposing of the property without suit; 1st, because it is violative of the letter and spirit of the constitution of the State; it deprives individuals of their property without trial, or an opportunity being afforded to be heard in vindication of their rights. We hold that no ordinance passed after the work was done can affect the rights existing at the time it was done.

So, too, we maintain, that whenever, lands or town lots are sold by a public officer--or, in other words, in all forced sales--the lands have to be sold in lots according to the legal subdivisions thereof, and all town lots separately, unless peculiar circumstances forbid such a course. This has been settled in many cases by our own Supreme Court. (Blackw. Tax Tit. 324; Haydon v. Foster, 13 Pick. 492.)

Corporations must conform to the mode and manner of levying and collecting the tax prescribed by their charters, which constitute their organic law. (Kemper v. McClelland, 19 Ohio, 324; Hope v. Dedrick, 8 Humph, Tenn.) The power is a limited one, and must be strictly pursued and strictly construed. (Nicholl v. Nashville, 9 Humph. 252; Bergen v. Clarkson, 1 Halst., N. J. 352; City of Washington v. Pratt et als. 8 How. 681, & 5 Curt. Cond., S. C. 538.)

WAGNER, Judge, delivered the opinion of the court.

By the amended charter of the City of St....