Jasper Land & Improvement Co. v. Kansas City
| Citation | 239 S.W. 864,293 Mo. 674 |
| Parties | JASPER LAND & IMPROVEMENT COMPANY v. KANSAS CITY, Appellant |
| Decision Date | 08 April 1922 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.
Reversed.
E. M Harber, J. C. Petherbridge and M. A. Fyke for appellant.
(1) Sec. 21, Art. II, Mo. Constitution, provides "that private property shall not be taken or damaged for public use without just compensation; and until the same shall be paid to the owner or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested." State ex rel. v. Hug, 44 Mo 116; Stacey v. Vermont Co., 27 Vt. 38; Const Co. v. Clarke, 193 S.W. 546; Kansas City v. Ward, 134 Mo. 183; Buchanan v. Kansas City, 208 Mo. 682; Kansas City Charter, sec. 3, art. 5. (2) The acceptance by plaintiff of the condemnation money, less the city tax, was tantamount to a voluntary payment by plaintiff of the tax; therefore plaintiff is not entitled to recover from the city the tax so voluntary paid by it. County of Lewis v. Tate, 10 Mo. 650; Walker v. St. Louis, 15 Mo. 653; Christy's Admr. v. St. Louis, 20 Mo. 143; Couch v. Kansas City, 127 Mo. 436; Clifton v. Harris, 179 Mo.App. 272.
Lathrop, Morrow, Fox & Moore for respondent.
(1) The action is not for the recovery of taxes paid, but is for the balance due upon a judgment in condemnation. (2) Under the Constitution and the Charter of Kansas City, the city's title, upon the affirmance of the judgment on appeal and the payment of the compensation awarded, related back to the date of the confirmation of the jury's verdict by the trial court, and the taxes attempted to be assessed and levied could not lawfully be offset against nor deducted from plaintiff's judgment. Charter of Kansas City, Art. VI, sec. 6. Plum v. Kansas City, 101 Mo. 525; Martin v. St. Louis, 139 Mo. 246; Brunn v. Kansas City, 216 Mo. 108; Municipal Securities Corp. v. Kansas City, 265 Mo. 252; In re Paseo, 78 Mo.App. 518; Currie v. Bangor Ry. Co., 105 Me. 529; City Safe Deposit Co. v. Omaha, 79 Neb. 446; State ex rel. v. Railroad, 85 Minn. 416; School District v. Smith, 168 S.W. 1088; Charles Co. v. Hughes, 105 Ga. 1; Parks v. Boston, 15 Pick. (Mass.) 198; Fitchburg v. Railroad Co., 134 Mass. 579; Sherwin v. Wigglesworth, 129 Mass. 64; In re Mayor of New York, 69 N.Y.S. 742, 167 N.Y. 627.
James T. Blair, J., not sitting.
This is a suit to recover the remainder of an amount awarded plaintiff in a condemnation proceeding as compensation for real estate taken for street purposes. Defendant demurred to the petition. The demurrer being overruled, it declined to plead further, and judgment was rendered against it for the amount claimed with interest. From that judgment it appeals.
The facts disclosed by the petition are briefly these: On May 9, 1917, an ordinance of Kansas City was duly enacted which provided for the opening, widening and extending of certain streets and avenues as enlarged approaches to the Union Station, and condemning the necessary lands for such purposes, including certain lands belonging to plaintiff. On June 2nd following, a certified copy of the ordinance, together with a plat showing the lands proposed to be taken and the benefit district described in the ordinance, was filed in the Circuit Court for Jackson County. Thereafter a trial was had for the assessment of damages and benefits before a board of commissioners, in accordance with the provisions of the Charter of Kansas City. A verdict was returned October 10, 1917, in which plaintiff was allowed $ 395,396 as compensation for such of its lands as were to be taken. Motions for a new trial were overruled December 5, 1917, and judgment was rendered, conformably to charter requirements, confirming the verdict of the board of commissioners. Thereafter appeals to this court were taken by various property owners, all of which were dismissed May 18, 1918.
On January 1, 1918, plaintiff's real estate, so proposed to be taken for street purposes and for which the compensation had been determined by the condemnation proceeding, was assessed by Kansas City, as was all other property in the city subject to taxation, for city taxes for the year 1918. The taxes thereafter levied pursuant to such assessment amounted to $ 1,073. December 1, 1918, Kansas City paid plaintiff all the compensation awarded the latter in the condemnation proceeding but $ 1,100, which the city retained as due it on account of the taxes just mentioned and interest thereon.
The principal question arising on this record is whether the real estate out of which the controversy grows was subject to taxation as private property on January 1, 1918, or whether on that date it had become an integral part of Kansas City's system of streets and thoroughfares. The respondent claims that it was divested of title by the judgment rendered in the condemnation proceeding, December 5, 1917; while appellant contends that such divestiture did not occur until the compensation was paid on December 1, 1918.
I. A tax, of the kind involved in this proceeding, is a contribution required of its citizens by the State. And while we speak of property as being subject to taxation, it is the individual who pays the tax, and not his property. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged; and when ascertained it is imposed upon the person of the owner on account of his ownership of the property. And this is true even when a personal judgment cannot be rendered against him therefor. [State v. Snyder, 139 Mo. 549, 552, 41 S.W. 216; Gitchell v. Kreidler, 84 Mo. 472, 476.] This general principle which fixes personal liability on the owner of property for the payment of taxes, aside from statutes expressly imposing it, is given distinct recognition in the provisions of the Charter of Kansas City relating to revenue and taxation, which we do not deem it necessary to quote.
II. We come now to consider whether respondent was liable to Kansas City for taxes because of ownership, on January 1, 1918, of the land giving rise to this controversy. The charter provides that upon the return of a verdict in a condemnation proceeding a judgment entered in confirmation thereof shall be, "that the city have and hold the property sought to be taken for the purpose specified in the ordinance providing for the improvement and pay therefor the amount assessed against the city and full compensation therefor." Such judgment, respondent insists, immediately divests the landowner of the title and vests it in the city, for the contemplated public use, subject to the payment of compensation. In this connection it is said that after the rendition of such judgment the owner's holding is merely permissive, that his status is in effect that of a mortgagee in possession. [In re Paseo, 78 Mo.App. 518.] Some such analogies have been drawn in cases dealing with the elements that go to make up "just compensation," but we are here considering what effect such a judgment had with respect to transferring the actual ownership of the land. So far as the title to the land was concerned the condemnation proceeding was still in fieri on January 1, 1918. Not only were appeals depending, but the city had a right under its charter to abandon the contemplated public improvement, by repealing the ordinance providing therefor, at any time before the judgment for benefits was paid. And entirely aside from that, the Constitution explicitly provides that until the compensation shall be paid to the owner or into court for his use "the property shall not be disturbed or the proprietary...
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