Keith v. Bingham

• Decision Date: 22 March 1890
• Citation: 13 S.W. 683,100 Mo. 300
• Parties: Keith v. Bingham, Appellant
• Court: Missouri Supreme Court

13 S.W. 683

100 Mo. 300

Keith v. Bingham, Appellant

Supreme Court of Missouri

March 22, 1890

Transferred from Kansas City Court of Appeals.

This is an action to enforce two special tax bills, issued under the charter of Kansas City, Missouri, for grading the roadway 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 May street from Sixth street to Ninth street exclusive of grading sidewalks thereon, to be done as provided by ordinance number 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 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, and said lot or parcel of land against which this special tax bill is issued is charged as aforesaid for the 268.27-7042.00 part of such work, materials and total costs.

"I certify this special tax bill to be correct, this twentieth day of July, 1883.

"William B. Knight,

"City Engineer of the City of Kansas."

And endorsed on the back thereof the following:

"Special tax bill. For street registered number 24. For $ 268.26. Volume 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.

Affirmed.

Wash. Adams and R. H. Field for appellant.

(1) A special tax bill is an in invitum charge upon real property created by certain and specified acts on the part of the municipality, and it can have no validity unless each prescribed step to authorize its issuance and existence as a charge against private property has been observed. In other words, there can be imparted no validity to a tax bill issued for work done not in compliance with law, or in positive violation of law. Mayor v. Porter, 18 Md. 284; Welker v. Porter, 18 Ohio St. 85; Pound v. Supervisors, 43 Wis. 63; Sewall v. St. Paul, 20 Minn. 519-520; Nalter v. Blake, 56 Ind. 127, 128; Kiley v. Oppenheimer, 55 Mo. 375 and 376, and cases cited; Hager v. City of Burlington, 42 Ia. 661; Fulton v. City of Lincoln, 9 Neb. 358; Kneeland v. City of Milwaukee, 18 Wis. 411. (2) The third defense set up in defendant's answer was sufficient. Householder v. City of Kansas, 83 Mo. 488; McElroy v. City of Kansas, 21 F. 257; County Com. v. Humphrey, 47 Ga. 565; Moses v. Dock Co., 84 Mo. 242; Cuyhe v. Rochester, 12 Wend. 165; Mayor v. Porter, 18 Md. 284; City of Kansas v. Swope, 79 Mo. 448; City of St. Louis v. Clemens, 43 Mo. 393; Kiley v. Oppenheimer, 55 Mo. 375. (3) In a suit upon an ex parte charge for opening or grading a street, the fact of no benefit to the property is a complete defense to the charge. Stafford v. Hamston, 2 Brod. & Bingh. 691; St. Louis v. Richeson, 76 Mo. 486-7; Matter of Fourth Ave., 3 Wend. 452; Morford v. Unges, 8 La. 92; Bradshaw v. Omaha, 1 Neb. 16; Tidewater Co. v. Coster, 18 N.J.Eq. 527. The charter makes the tax bill only prima facie evidence. Laws, 1875, page 252, sec. 4. If the charter had made it conclusive, instead of prima facie, it would have been unconstitutional. St. Louis v. Richeson, supra. To make a citizen pay for improvements, when they are no benefit to him, is unreasonable and highly oppressive. An ordinance to this effect was held void. Corrigan v. Gage, 68 Mo. 541; see, also, authorities supra. (4) The alleged tax bills could not be liens in any event unless the contractor receipted for them, as required by the Kansas City charter. Laws, 1875, pp. 251, 252; secs. 3 and 4. (5) The city has no general authority to issue special tax bills, but only a naked authority to issue them for defined purposes. Yankee v. Thompson, 51 Mo. 237; State, etc., v. Jersey City, 2 Dutcher [N. J.] 444; State, etc., v. Mayor, 35 N. J. L. 381.

Bryant & Holmes for respondent.

(1) The tax bills were prima facie valid and the burden was cast on defendant to overcome this prima facie case. Laws, 1875, p. 252; Buchan v. Broadwell, 3 West. Rep. 827. (2) And this prima facie character of the tax bills raises the presumption that the contractor duly receipted for them. Stifel v. Dougherty, 6 Mo.App. 441; Wand v. Green, 7 Mo.App. 82; City v. Armstrong, 38 Mo. 29; Neenan v. Smith, 60 Mo. 292; Seibert v. Allen, 61 Mo. 482; Ess v. Bouton, 64 Mo. 105. (3) The tax bill sued on was issued in the form required by the charter. (4) The answer shows that defendant has an interest in the lot in question. (5) The third defense set up in the answer does not aver that defendant owned or had any interest in the lot in question. (6) While special taxes are based on the idea of benefits, the question of benefits is purely legislative, determinable by the legislature in the exercise of the sovereign taxing power, and is one with which the courts have nothing to do. Cooley on Taxation [1 Ed.] pp. 416, et seq., and pp. 420, 430, 450, 452; 2 Dillon on M. C. [3 Ed.] sec. 752; Farrar v. St. Louis, 80 Mo. 379; Levee Co. v. Hardin, 27 Mo. 495; Garrett v. St. Louis, 25 Mo. 505; City v. O'Donoghue, 31 Mo. 345.

OPINION

Barclay, J.

-- I. We will first consider the ruling of the trial court on the demurrer to the third defense, as what may be said on that branch of the case may, possibly, abbreviate the discussion on other points.

It is claimed by defendant that the tax bills in suit were issued in violation of that section of the constitution which declares "that private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed." Const. 1875, art. 2, sec. 21.

Looking at this defense from the most favorable standpoint, it is evident that it is untenable. The section of the constitution just quoted refers to, and is intended to regulate, the exercise of the right of eminent domain, whereas special assessments for local improvements, such as the tax bills before us, are referable to, and sustainable under the taxing power. This distinction is well recognized both here and elsewhere in the United States. Garrett v. St. Louis (1857), 25 Mo. 505; Lewis on Eminent Domain, sec. 5. If the taxing power has been called into play in the mode required by law for the purpose of paying for a local improvement such as paving or grading a street, it is no defense to a bill issued therefor to say, as is said here, that the street, or the improvement, damaged and did not benefit the property, though, if such were the fact, the party injured might have his action (on a proper showing) und...