Keith v. Bingham

• Decision Date: 22 March 1890
• Parties: KEITH v. BINGHAM.
• Court: Missouri Supreme Court

13 S.W. 683

100 Mo. 300

KEITH v. BINGHAM.

Supreme Court of Missouri.

March 22, 1890.

SPECIAL TAXES — STREET IMPROVEMENTS — EVIDENCE.

1. The provision of Const. Mo. 1875, art. 2, § 21, that private property cannot be taken or damaged for public use until compensation has been actually paid, applies only to the exercise of eminent domain, and it is no defense to special tax-bills for street improvements that the property was damaged by the improvement and no compensation has been made therefor.

2. As the law requires that the city engineer shall take a receipt from the contractor for street improvements before delivering special tax-bills to him, it will be presumed, in an action on such bills, in the absence of evidence to the contrary, that the law was complied with.

3. Moreover, the bills being prima facie evidence of the liability of the property to the charge stated in them, under Sess. Acts Mo. 1875, p. 252, art. 8, § 4, the burden is on defendant to prove that receipts were not given therefor.

4. The claim for damages to property by reason of changes in the street is a personal claim of the owner of the property at the time of the injury, and does not run with the land.

5. As the judgment can be levied only on the land against which the special tax is a charge, it is no defense to the action that defendant does not own the land, or that an action of ejectment for the land is pending.

6. It is not necessary that the tax-bills shall show that every prerequisite step necessary to their validity has been taken. Laws Mo. 1875, pp. 251, 252, art. 8, §§ 3, 4.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

This is an action to enforce two special tax-bills, issued under the charter of Kansas City, Mo., for grading the road-way and sidewalks of May street, in that municipality. The petition is in the usual form in such cases, demanding special judgment against certain real estate described, "claimed by defendant," and alleged to be chargeable with said bills, under the city charter. The answer, besides a general denial, contained an equitable defense, noticed more fully hereafter, as well as the following: "Defendant, for a third defense to the tax-bills sued upon, states that the lot described in plaintiff's petition is now, and was at all the times stated in plaintiff's petition, private property; that the grading mentioned in plaintiff's petition was done for public use, and damaged, and did not benefit, said lot; that no compensation was made or tendered to, or paid into, court for any person, as the owner of said lot, on account of said damages. Wherefore, the defendant asks judgment." To this last defense the trial court sustained a demurrer. The remaining issues were tried, and on findings for plaintiff special judgment was rendered, in due form, for the amount of the tax-bills to be levied upon the property described. The form which the bills have is best shown by this copy of one of them: "No. 24. Special tax-bill for grading a street, avenue, or highway, exclusive of sidewalks thereon. The City of Kansas, in the county of Jackson, the state of Missouri. I, William B. Knight, city engineer of the City of Kansas, aforesaid, certify that there has been completed the work of grading the sidewalks thereon, to be done as provided by ordinance No. 23,277 of the City of Kansas, aforesaid, entitled "An ordinance to grade a part of May street," approved October 19, 1882; that when such work was completed I computed the cost thereof, and apportioned such cost among the several lots and parcels of land to be charged therewith, according to the values thereof fixed by the city assessor, according to law, and charged each lot and parcel of property with its proper share of such cost; that, after so apportioning and charging the cost of such work, I made out this special tax-bill, according to such apportionment and charge, in favor of Kansas City Grading Company, by James Lillis, superintendent, the contractor to be paid, against the following described lot or parcel of land in the City of Kansas, in said county and state, to-wit: Lot 26, block 6, Hubbard's addition to the City of Kansas; that said land has been and is charged as aforesaid with two hundred and sixty-eight and twenty-six one-hundredths dollars, ($268.26,) its proper share of such costs, which sum, if not paid in thirty days after the issue hereof shall bear interest from the issue hereof at the rate of fifteen per cent. per annum. The work so completed consisted of 3,242.5-10 cubic yards of rock excavation, costing $2,107.63, and 24,827 cubic yards of earthwork and furnishing materials therefor, costing $4,934.37, making the total cost for the grading of said street, between the points as above named, $7,042.00, and said lot or parcel of land against which this special tax-bill is issued is charged as aforesaid for the

                 268.26
                -------- part of such work, materials, and total
                7,042.00
                

costs. I certify this special tax-bill to be correct, this 20th day of July, 1883. WILLIAM B. KNIGHT, City Engineer of the City of Kansas." And indorsed on the back thereof the following: "Special tax-bill. For street. Registered. No. 24. For $268.26. Vol. 5, page 420, in city engineer's office. Issued July 26, 1883, by city engineer. Assignment. February 5, 1884. For value received, this special tax-bill and the lien thereof is hereby assigned to Richard H. Keith, and he is authorized to sign the name of the Kansas City Grading Company to the receipt. KANSAS CITY GRADING COMPANY. BY JAMES LILLIS, Superintendent."

After the usual steps therefor, defendant appealed to the Kansas City court of appeals. That court sent the case here, because a constitutional question was raised and discussed by counsel. The other essential facts appear in the course of the opinion.

Wash Adams, R. H. Field, and Rollins Bingham, for appellant. Bryant & Holmes, for respondent.

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