Jaicks v. Oppenheimer
| Decision Date | 13 June 1914 |
| Docket Number | 11165 |
| Citation | 168 S.W. 216 |
| Parties | JAICKS v. OPPENHEIMER ET AL. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.
Action by Andrew Jaicks against Henry A. Oppenheimer and others. From a judgment for defendants, plaintiff appeals. Cause certified to the Supreme Court for final decision.
T. B Buckner, of Kansas City, for appellant.
Clarence S. Palmer, of Kansas City, for respondents A. L. & J. O. West.
Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent Barber Asphalt Paving Co.
Plaintiff, as the holder of a special tax bill issued by Kansas City against a certain lot for its proportionate part of the expense of paving Cleveland avenue in said city, brought suit to enforce the lien thereof. The tax bill was issued May 1, 1911, under an ordinance authorizing the work, approved November 10, 1910. At the time of the institution of plaintiff’s suit, there were five other special tax bills on the said lot representing special assessments for other and different public improvements. One of these was in favor of the defendant F. C. Youmans, issued December 19, 1903, for sewer construction; another was in favor of the defendant the Barber Asphalt Paving Company, issued January 22, 1906, under an ordinance authorizing the paving of Eighteenth street, passed and approved December 21, 1903; another was in favor of defendants J. O. and A. L. West, issued April 8, 1907, under an ordinance to grade Monroe avenue; another in favor of said Wests issued October 1, 1909, under an ordinance approved October 1, 1907, for the grading of Cleveland avenue; and another in favor of defendant M. M. McCormick, the precise date of which is not shown by the record but which antedates plaintiff’s tax bill. Suit had been brought upon all these tax bills by the respective holders thereof within the two years allowed by the charter, but they were still pending and undisposed of at the time plaintiff brought this suit; and all of these holders, together with the owners of the lots, were made parties defendant herein as having some interest in the property, but which, according to plaintiff’s claim, was inferior to the lien of the tax bill sued on. No question is raised as to the validity of the steps taken to issue any of the tax bills involved in the case. So far as the tax bills themselves are concerned, they are all regular and valid. The plaintiff introduced his tax bill and rested. The court sustained plaintiff’s lien for the amount of his tax bill with interest and ordered it enforced against the property in question, but held that, as the tax bills held by the defendants had been issued prior to that of plaintiff’s, they were entitled to priority over plaintiff’s tax bill in the order and according to the respective dates of their issue. Plaintiff appealed, claiming that the liens of special tax bills take priority in the reverse order of their date the same as in the case of liens for general taxes. This is the sole question involved in the case.
With regard to all ordinary liens arising out of private contract and not imposed solely by governmental power, priority in time creates priority in force and effect; the first in order of time being, prima facie, superior to those of a later date. But the priority of the liens of general taxes is in the reverse of this order, the last is first and the first last. 2 Cooley on Taxation (3d Ed.) 875; Anderson v. Rider, 46 Cal. 134; Sayles v. Davis, 22 Wis. 217; Wass v. Smith, 34 Minn. 304, 25 N.W. 605. This rule is well settled and is not disputed. The question is, however whether there is any distinction to be made in this regard between the liens of general taxes and those of special taxes.
The precise question was before the St. Louis Court of Appeals in Parker-Washington Co. v. Corcoran, 150 Mo.App. 188, 129 S.W. 1031, in which it was held that the liens of special taxes for local improvements took priority in the same order as other ordinary liens, and not in the reverse order of their time as with those of general taxes. The decision is placed upon the ground that there is an essential distinction between general taxes and special taxes, and that in the absence of a statutory or (which is the same thing) a charter provision to the contrary, the lien of a special tax bill takes priority over another special tax bill in the same order as do other ordinary liens; that is, the first in point of time is prior to the later tax bills. Of course, if a statutory or charter provision exists which expressly or by necessary implication creates the reverse order of priority, then, by virtue of such provision, the distinction between the two kinds of tax liens is taken away, so far as the rule of priority as between different liens of the same kind or class is concerned. And the St. Louis Court of Appeals, finding no provision in the St. Louis charter which clearly gave such reverse order of priority, held that there was such a distinction between general and special taxes that the latter could not be given the same rule of priority which prevails with the former. It is true, as stated in that case, the rule is well settled with respect to both legal and equitable liens that, in the absence of statutory regulations to the contrary, the lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter before other subsequent liens are paid. But an examination of the authorities cited by text-writers and others in support of the rule thus announced in such general terms will disclose that the cases are dealing with ordinary liens arising out of private contract and not those created and imposed solely by governmental authority in the exercise of the taxing power. Consequently, a statement of the general rule of priority with respect to ordinary liens can aid but little in determining the rule of priority of special tax liens with reference to each other, because, at last, it all comes down to the question whether there is any such inherent difference and distinction between the liens of special taxes and those of general taxes as will require the rule of priority in the one to be different from that of the other.
When the two kinds of taxes are considered for the purpose of determining this question, it will be found that there is not such an inherent difference between them as to place the liens of special taxes merely in the category of ordinary liens. It is true general taxes are levied for the support of the government, and in that sense general taxes are the more important of the two and ought to take precedence over special taxes, so that the lien of a general tax ought to be prior to the lien of a special tax, even...
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