Jaicks v. Oppenheimer

• Citation: 175 S.W. 972,264 Mo. 693
• Parties: ANDREW JAICKS, Appellant, v. HENRY S. OPPENHEIMER et al
• Decision Date: 02 April 1915
• Court: Missouri Supreme Court

175 S.W. 972

264 Mo. 693

ANDREW JAICKS, Appellant, v. HENRY S. OPPENHEIMER et al

Supreme Court of Missouri

April 2, 1915

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Reversed and remanded.

T. P Buckner for appellant.

(1) Tax liens take priority in the reverse order to ordinary liens that is, in tax liens "the last shall be first and the first last." This rule as to general taxes is so well settled that it is conceded and requires no citation of authority. (2) In the matter of priority there is no distinction between the lien of general taxes and that of special taxes for general improvements. The liens of special tax bills also take priority in the reverse order of their date. Paving Co. v. Realty Co., 168 Mo.App. 468; Construction Co. v. Rink Co., 242 Mo. 241; Burke v. Lukens, 12 Ind.App. 648; Anderson v. Rider, 46 Cal. 134; Sayler v. Davis, 22 Wis. 217; Wass v. Smith, 34 Minn. 304; Fletcher v. Oshkosh, 18 Wis. 244; Morey v. Duluth, 75 Minn. 221; Cooley on Taxes (3 Ed.), 875. (3) The last special tax bill issued takes precedence over all prior incumbrances and is the superior lien. Construction Co. v. Ice Rink Co., 242 Mo. 241. (4) This is true although there is no express statute, ordinance or charter giving or making the last bill a first lien. Construction Co. v. Ice Rink Co., 242 Mo. 241. (5) That special taxes and general taxes stand alike as to priority and are a superior lien to all other incumbrances, while once a mooted question, is now the settled law of this State, and has forever been set at rest. Paving Co. v. Realty Co., 168 Mo.App. 476. (6) The charter of Kansas City is express that the tax bill shall be a lien against all prior lien holders or persons "interested" in the real estate charged by the tax bill. City Charter, secs. 22, 24, art. 8. (7) The tax bill in this case, being the last one issued in point of time added value to the existing liens, enhanced their security, and on account of public policy as well as the settled law of this State, it should be held to be a prior lien over all existing incumbrances including the lien of prior tax bills. (8) Until the case of Parker-Washington Co. v. Construction Co., 150 Mo.App. 188, was decided, no one in this State doubted that the last tax bill was the superior lien. The reasoning in that case has been expressly repudiated in the more recent case of the St. Louis Court of Appeals, 168 Mo.App. 468, and the more recent case of the Supreme Court 242 Mo. 241. (9) The language of the charter in St. Louis in which all the above cases were founded, did not contain such an express provision as is contained in the Kansas City charter. Nortoni, J., in the adverse case relied upon, expressly held that if there was such an express charter provision the last tax would be a first lien and cited the case of Keating v. Craig, 73 Mo. 507. The charter provision of Kansas City now is as express as it was when the case of Keating v. Craig was decided.

Scarritt, Scarritt, Jones & Miller for respondent, Barber Asphalt Paving Co.

(1) The lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter before subsequent liens binding the same property. 25 Cyc. 678; 25 Am. & Eng. Ency. Law, 1236-7; Rankin v. Scott, 12 Wheat. (U.S.) 177; Parker-Washington Co. v. Corcoran, 150 Mo.App. 188. (2) The argument of appellant that his tax bill being the last one issued in point of time, therefore added value to the property and enhanced the security of lien holders and by reason of this fact his tax bill should be declared superior to those of the respondents is answered by Brick Mfg. Co. v. Smith, 108 Iowa 307.

Clarence S. Palmer for respondents, A. L. and J. O. West.

Paxton & Rose, amici curiae.

The analogy between a tax and tax bill is only partial. They both originate in the taxing power, but there the similarity ends. A tax is always a public lien and is always due to the government, while a tax bill, after its issue, is mere private property. All taxes, too, are owed to the same party, viz.: the government, so that the question of priority is not of any great moment; whereas the different tax bills on the same property are generally held by different private individuals, and so have become mere private liens with which the government has nothing further to do. This being true, we think the question of priority should be decided according to the law of private liens, not according to the law of taxes, with which the tax bill itself has ceased to have anything in common. The turtle and the bird both come out of an egg; but in considering the treatment to be accorded these different animals, the one swimming in the water, and the other inhabiting the air, it is more appropriate to consider the animals as they are than to go back to the similarity of origin. "The accepted doctrine is that special assessments for local improvements, while, in a broad sense, referable to the taxing power, are not taxes for public purposes or taxes at all within the purview and the sense of the constitutional provision invoked or within the sense and purview of other sections of the article on revenue and taxation." Ranney v. Cape Girardeau, 255 Mo. 514.

BOND, J. Woodson, C. J., and Faris, J., concur; Brown, J., concurs in result; Graves and Blair, JJ., dissent; Walker, J., dissents in separate opinion.

OPINION

In Banc

OPINION.

BOND J.

Appellant here (plaintiff below) brought this action on a tax bill issued to him, as part payment, for doing paving work on Cleveland avenue in Kansas City, under authority of a valid ordinance. Amount of tax bill $ 725.28, and issued against lot 28, Indianapolis Place, in said city. The petition alleged that all the defendants named claimed some interest in the above-mentioned property, and prayed for the establishment of a prior lien on said property for the amount of said tax bill against all of the defendants.

The defendants answered, setting up that they held similar tax bills against said property issued to them for public work prior to that issued to the plaintiff, on some of which suits were then pending. The admissions of the parties established the facts stated in the pleadings. The court, over the objection of plaintiff, rendered a judgment sustaining his lien for the amount of his tax bill and interest against the property described in his petition, except against those defendants who had anterior tax bills, or had acquired interests under suits on prior tax bills, and adjudged that such interests and titles in said defendants were not subject to the lien of plaintiff's tax bill.

After the overruling of a motion for a new trial plaintiff appealed to the Kansas City Court of Appeals. Upon the hearing of said appeal that court, after stating the above facts, rendered an unanimous opinion reversing the judgment of the trial court and remanding the cause with directions to give priority to plaintiff's lien, but on account of the conflict of that view with the decision of the St. Louis Court of Appeals, 150 Mo.App. 188, certified the cause to this court for final determination as provided in the Constitution.

As a prelude to what we shall say in this case, and because we concur in the conclusion of the Kansas City Court of Appeals as to the relative priority of the liens of tax bills for special assessments for public work in cities and towns, we herein copy the discussion of the Kansas City Court of Appeals, speaking through Judge Trimble:

"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 (3 Ed.), 875; Anderson v. Rider, 46 Cal. 134; Sayles v. Davis, 22 Wis. 225; 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 Company 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...