Jaicks v. Oppenheimer

• Decision Date: 03 March 1915
• Docket Number: No. 18545.,18545.
• Parties: JAICKS v. OPPENHEIMER et al.
• Court: Missouri Supreme Court

175 S.W. 972

264 Mo. 1033

JAICKS v. OPPENHEIMER et al.

No. 18545.

Supreme Court of Missouri.

March 3, 1915.

Rehearing Denied April 2, 1915.

In Banc. Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge. Action by Andrew Jaicks against Henry S. Oppenheimer and others. A judgment for plaintiff for insufficient relief was reversed by the Kansas City Court of Appeals (168 S. W. 216), and the cause, by that court, was certified to the Supreme Court. Judgment of the trial court reversed and remanded.

T. B. Buckner, of Kansas City, Mo., for appellant. Clarence S. Palmer, of Kansas City, for respondents A. L. West & t. 0. West. Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent Barber Asphalt Paving Co. Paxton & Rose, of Independence, amid curiae.

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 a 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 (Parker-Washington Co. v. Corcoran, 150 Mo. App. 188, 129 S. W. 1031), 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. [See 168 S. W. 216.]

In further illustration of the correctness of the result reached in the foregoing opinion by the Kansas City Court of Appeals, we desire to say:

The power to assess private property for public improvements, beyond the uniform rate prescribed by the Constitution is derivable only from the fact that such property is enhanced in value to the amount of the tax beyond that of other citizens, by the public betterment. Any assessment not thus bottomed is void. Upon this basis only can the Legislature, through its auxiliaries in government, exert its taxing power for the construction and repair of streets and other public purposes. Hence provision is made in the charters of cities and towns that the private owners shall pay only that portion of the tax represented by the moneyed increase in the value of their respective property, and that the remainder of the tax must be paid out of the general revenues of the municipalities. It is on this principle alone that special assessment can be laid upon private property for public improvements and other works necessary to urban life.

None the less, however, the impositions thus made are strictly referable to the taxing power of the state lodged in the Legislature, subject to the limitations of the Constitution, and such exactions are in their essence just as much taxes as are those which are collected for the support of the government itself. The fact that a contractor for public work is permitted to enforce a portion of his compensation for the doing of such work from abutting property owners by a direct action upon a tax bill fixing the amount to be collected from them is to avoid circuity of action and to enable the municipality to collect in that way the incidental benefit which the public work prosecuted by it has afforded to particular citizens over all others. The result would be exactly the same if the city in the first instance paid out to the contractor the whole of his compensation, and afterwards collected from particular private owners the amount of the enhancement in value of their respective property. It is apparent, therefore, as has been uniformly held in this state, that the whole process of making public improvements in cities and towns, which involves the taxing of particular property, is in its essence the exercise by the state, through one of its delegated agencies, of the taxing power lodged in the Legislature.

Special assessments are, in the strictest sense of the terms, charges on a physical property and proceedings to enforce them are in rem or against the thing itself. The authority under which they are laid fixes a lien upon the property as an equivalent of a permanent increment of its value by the public improvement or work for which the assessment was part payment, and assesses a tax bill to the contractor evidencing his right to recover that portion of his compensation for the doing of a needed public work. Upon that theory the same basis exists for such a lien as that created by courts of equity in railroad receiverships for the betterment work done on the earnings of the property in the hands of the court, and which, to the extent of the payment for such additions, displaces pro tanto all prior mortgages and liens, including those for which the suit was instituted, as well as the claims of general creditors. Van Frank v. Railway, 89 Mo. App. loc. cit. 499, and cases cited. The foundation of this principle is justice, if not necessity. For it would be inequitable to permit prior incumbrancers, in the enforcement of their liens, to realize the added value which has been put in the property charged by the labor of others necessary to its protection or the uses to which it must be applied, pending proceedings for the enforcement of the rights of incumbrances, without subjecting such incumbrances to the costs and outlays thus subsequently incurred. So, in this case, the last special tax was for an equivalent addition to the value of the property on which prior similar taxes were incumbrances. The charter of Kansas City provided that each should be a lien on the thing benefited, necessarily thereby providing that the last lienor should have preference over the former, who, as to him, stood merely in the relation of persons interested in the property improved, and hence within the very terms of the charter providing that all such might be made parties to a suit like the present, or that all such might make payments of charges like the present tax bill. Kansas City Charter, art. 8, § 22.

From these principles the corollary follows that there is no essential distinction between a special tax constitutionally laid for special public purposes and a general tax laid for the administration of the government of the state, and that the rules of reverse priority applicable in the collection of successive general taxes necessarily apply to the collection inter sese between successive special assessments laid for public improvements in cities and towns. We think, therefore, that the Kansas City Court of Appeals in this case has reached a correct conclusion, and that the decision of the St. Louis Court of Appeals was erroneous and should not be followed.

The judgment of the circuit court is reversed, and the cause remanded for proceedings in conformity with this opinion.

WOODSON and FARIS, JJ., concur. BROWN, J., concurs in result. GRAVES and BLAIR, JJ., dissent. WALKER, J., dissents in separate opinion.

WALKER, J.

I do not concur in the majority opinion. The conclusion reached therein, as well as in that of the Kansas City Court of Appeals, is based upon the theory that statutes authorizing special assessments are acts inherent in sovereignty, and, if a lien is created, it should be construed as are liens of judgments for general taxes. The priority of liens for general taxes over other charges on real estate is held by this court in Morey v. Ice Rink Co., 242 Mo. 241, 146 S. W. 1142, 40 L. R. A. (N. S.) 119 Ann. Cas. 1913C, 1200, to exist independent of legislative action. Granting the sovereignty of the state and its power to provide means for its existence, this power to create a lien must have had an origin either in the common law or a statute. At the common law there was no rule which made a levy and assessment of taxes ex proprio vigore a lien on land. The lien then, if it exists, must have its origin in a statute. An examination of the laws of this state from 1820 (Laws 1820, p. 89) to the revision of 1909 (section 11499, R. S. 1909) discloses that we have had throughout our judicial history. an express statute declaring a judgment for general taxes a...