Johnson v. Underwood

• Decision Date: 03 February 1930
• Docket Number: No. 27988.,27988.
• Citation: 24 S.W.2d 133
• Parties: H.H. JOHNSON ET AL., Appellants, v. J. UNDERWOOD ET AL., Commissioners of PARKVILLE BENEFIT ASSESSMENT SPECIAL ROAD DISTRICT, ET AL.
• Court: Missouri Supreme Court

24 S.W.2d 133

H.H. JOHNSON ET AL., Appellants, v. J. UNDERWOOD ET AL., Commissioners of PARKVILLE BENEFIT ASSESSMENT SPECIAL ROAD DISTRICT, ET AL.

No. 27988.

Supreme Court of Missouri, Division No. 1.

February 3, 1930.

Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

Forsee & Forsee for appellants.

(1) This action is a direct attack on the judgment or order of the county court. Wonderly v. Lafayette, 150 Mo. 652; Harris v. Langford, 277 Mo. 527; Verdin v. St. Louis, 131 Mo. 74; Jewell v. Boardman, 181 Mo. 647; Knapfi v. Roofing & Paint Co., 92 Mo. App. 293. (2) Every step provided by law in the procedure to levy a special tax is termed an "essential" step and must be strictly followed or tax bills are void. State ex rel. Major v. Ward, 233 Mo. 357; State v. Colvert, 273 Mo. 198; Meade v. Jasper County, 266 S.W. 469; Mississippi Fox River Drain. Dist. v. Ackley, 270 Mo. 157; Spurlock v. Dorman, 182 Mo. 242; Roth v. Gabbert, 123 Mo. 21; Castilo v. Highway Commission, 279 S.W. 673; Chicago, Railroad Co. v. Young, 96 Mo. 39; Dougherty v. Excelsior Springs, 110 Mo. App. 623; Chandler v. Railroad, 251 Mo. 592; Collier Estate v. Paving & Supply Co., 180 Mo. 362; St. Louis v. Koch, 169 Mo. 587; Nevada to use of Gilfillan v. Eddy, 123 Mo. 546; Town of Trenton v. Coyle, 107 Mo. 193; Cole v. Skrainka, 105 Mo. 303; Barton v. Kansas City, 110 Mo. App. 31; West v. Porter, 89 Mo. App. 150; Rose v. Trestrail, 62 Mo. App. 352. (3) The failure of the petition of the property owners petitioning for the improvement to contain the allegation required by the law that the petitioners desired the costs to be taxed against the lands in the district vitiated the entire proceedings. It stated no cause of action at all. State ex rel. Major v. Wood, 233 Mo. 357; Castilo v. Highway Commission, 279 S.W. 673; Chandler v. Railroad Co., 251 Mo. 592; Lilly v. Merike, 126 Mo. 212; Hanson v. Neal, 215 Mo. 278; Hudson v. Cahoon, 193 Mo. 577. Taxes are not a lien unless expressly declared to be a lien by law, and unless the law has been specifically followed. Jefferson City v. Whipple, 71 Mo. 519. (4) The failure to list and assess, as the law requires, all the lands in the district is a fatal error, and the enforcement of the tax bills against the lands that were listed for that portion of the tax that the unlisted property should have borne, is a violation of the 14th Amendment of the Constitution of the United States, as well as the similar provision of the State Constitution, and renders the tax bills void. Hamilton on Law of Special Assessments, sec. 542; 1 Page & Jones on Taxation by Assessment, secs. 639, 645; In Matter to Vacate an Assessment, 75 N.Y. 324; Spokane Falls v. Browne, 3 Wash. 84; Klein v. Gravel Co., 162 Ind. 509; Chicago v. Baer, 41 Ill. 306; In re Klock,, 51 N.Y. Supp. 897; Page & Jones on Taxation by Assessment, p. 629; City of Independence v. Gates, 110 Mo. 382. (5) The order of the county court defining the boundaries of the district and the land list were parts of the record of the case. The list showed on its fact when compared with the said order that four tracts of forty acres each had been omitted — the Wingo and Herndon lands — hence the approval of the land list by the county court must yield to the record, the list itself and said order. The approval was a "legal fraud." State ex rel. Majors v. Ward, 233 Mo. 357; Cloud v. Inhabitants of Pierce City, 86 Mo. 358; Blodgett v. Schaffer, 94 Mo. 653. (6) When the county court on September 13, 1920, made its first order dismissing the petition, it lost all jurisdiction over the case. The order of the Platte County Circuit Court, made ten months thereafter, did not and could not set aside the finding of the county court that such petition should be dismissed. The court found from the evidence that the costs of the work was "excessive, exorbitant and unreasonable." In other words, the costs would be confiscation. However, if all the proceedings in the record and those of the county court leading up to the order made May 2, 1922, were regular, the making of that order, ordering the assessment to be made and the tax bills to be issued, exhausted all the power of the county court over the case. All subsequent orders were void. Meade v. Jasper County, 266 S.W. 469; Bayless v. Gibbs, 251 Mo. 492; Saline County v. Wilson, 61 Mo. 237; 15 C.J. 470; State v. Morgan, 144 Mo. App. 35. (7) The plaintiffs had the right to prove at the trial that the petition to improve the road had been unlawfully signed by the Board of Trustees of Park College and by Day and Tucker as trustees under the will of Mrs. Fulton, regardless of the finding of the county court to the contrary. State ex rel. Major v. Wood, 233 Mo. 357; Scott v. McNeal, 154 U.S. 34; Ogden City v. Armstrong, 168 U.S. 224. (8) Section 10845a, Laws 1923, p. 348, did not authorize the county court, in this case, to order a new estimate based upon which it made the order of January 16, 1924. If for no other reason, because the county court had lost all jurisdiction over the case when its order of May 2, 1922, was made and the term expired. (a) Bonds under the order of May 2, 1922, had been issued, and registered with the state auditor; (b) It could not have a retroactive effect or be an ex post facto law. It could apply to only proceeding had after the passage of said act. (9) The orders of the county court made January 16, 1924, did not set aside its former order made May 2, 1922, since said term had expired; any order thereafter made was coram non judice, and null and void. Lovett v. Russell, 138 Mo. 474; Stauffer v. Stauffer, 200 Mo. App. 240. (10) The last order of the county court, made January 16, 1924, if it were not void for any of the reasons heretofore stated, is void for indefiniteness, because the undisputed record shows that there were several plans and specifications on file; that the only lawful plans and specifications on file were those for the brick pavement. This order does not state what set of plans and specifications should be used. Smith v. City of Westport, 105 Mo. App. 224; Excelsior Springs v. Ettison, 120 Mo. App. 215. (11) When the Statewide Highway Act was approved, August 4, 1921, it repealed the special road law as to the road in question, and the order of the county court authorizing the assessment in question in order that the special road commissioners could raise money to turn over to the State Highway Commission was nothing more nor less than the direction of a special assessment, and the issue of tax bills, to raise money as a mere gift to the statewide road fund. State ex rel. v. County Court, 142 Mo. 575; Sec. 46, Art. 4, Mo. Constitution; Ragan v. Loan & Trust Co., 154 U.S. 362; Platte City Benefit Assessment Special Road Dist. v. Couch, 8 S.W. (2d) 1003; Hanick v. Marion County, 278 S.W. 732. (12) The improvement of the road by the State Highway Commissioners under the road law of August 4, 1921, instead of by the district commissioners, by following the provision of Chapter 98, Art. 8, R.S. 1919, and the levying of a special assessment by the district, the proceeds of which was to be and was turned over to the State Highway Commission, violates the due process of law clauses of the State and Federal constitutions and the equal protection clauses of the State Constitution. Secs. 27, 29, 33, 34, Act of 1921, Laws 1921, Ex. Sess.; McCormick v. Patchin, 53 Mo. 33; Norwood v. Baker, 172 U.S. 269, 43 L. Ed. 443; St. Louis v. Realty Co., 259 Mo. 126; Albers v. St. Louis, 268 Mo. 349; State v. Kyle, 166 Mo. 39; Gast Realty & Inv. Co. v. Schneider, 296 Mo. 687; 6 R.C.L. 290; New Orleans v. Warner, 175 U.S. 120, 44 L. Ed. 96. (13) The assessment of this special tax and the enforcement thereof, local in its nature, to pay for the pavement of a state highway, being a general object, and provided by law to be paid out of a general road fund, violates the Federal Constitution, Fourteenth Amendment, and the State Constitution, and is void. State ex rel. Chouteau v. Leffingwell, 54 Mo. 458; Platte City Benefit Assessment Special Road Dist. v. Couch, 8 S.W. (2d) 1003; Chicago v. Law, 144 Ill. 569; Martin v. District of Columbia, 205 U.S. 135; In re Washington Ave., 69 Pa. St. 352; People v. Salem, 20 Mich. 474. (14) The Statewide Highway Road Law, approved August 4, 1921, provided and set apart funds with which the State under the law was compelled to pave the road in question; that law, on page 158, Laws 1921, Ex. Sess., under the head of Platte County, specifically provides that the road in question was a state highway and that it should be by the State, out of the State funds, paved and improved, etc., from Parkville to the Platte-Clay County line. From said date there was no necessity, use or right for the special road district to provide any funds for paving that road. Hence, the plaintiffs in this case could under the law enjoin the collection of these tax bills. State v. Gordon, 260 Mo. 145; Leslie v. St. Louis, 49 Mo. 477. (15) The statutes providing for the improvement and the issuance of tax bills therefor were not followed, therefore both the assessment and tax bills are invalid. Guinotte v. Egelhoff, 64 Mo. App. 356; West v. Porter, 89 Mo. App. 150; 2 Page & Jones on Taxation by Assessment, p. 360, sec. 234, p. 356, sec. 229, pp. 1372 and 1373; Collier Estate v. Paving & Supply Co., 180 Mo. 362; St. Louis v. Kock, 169 Mo. 587; City of Nevada to use of Gilfillan v. Eddy, 123 Mo. 546; Town of Trenton v. Coyle, 107 Mo. 193; Bell v. Johnson, 207 Mo. 281; Lyon v. Alley, 130 U.S. 177, 32 L. Ed. 902. (16) The judgment in Case No. 6187 of the Circuit Court of Platte County is not a bar to the instant action. Before it could be a bar the following must have been proven: (a) Identity of the thing sued for; (b) identity of the cause of action; (c) identity of persons and parties to the action; (d) identity to the quality of the person for or against whom the claim is made....