Municipal Securities Corp. v. Kansas City
| Decision Date | 01 June 1915 |
| Citation | 177 S.W. 856,265 Mo. 252 |
| Parties | MUNICIPAL SECURITIES CORPORATION v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Reversed.
John G Park, A. F. Smith, Ingraham D. Hook, A. F. Evans and Jay M Lee for appellant.
(1) Kansas City is not liable. First. The charter of Kansas City provides: (a) No special tax bill shall be issued against city property, but a certificate shall be issued by the Board of Public Works. (b) A street, avenue or highway is exempt from assessments for sewer construction. Second. The ordinance for the construction of the District Sewer No. 146 and the contract with Walsh, plaintiff's assignor, so provides. Third. Walsh released Kansas City from all liability. (2) Plaintiff's remedy was mandamus. An examination of plaintiff's petition will disclose that it is virtually a suit upon special tax bills. There were introduced in evidence seventy-five tax bills identical with those issued against private property. The judgment is upon each one of the seventy-five counts in the plaintiff's petition, each of which is based upon a tax bill for the face of the tax bill and with interest thereon since the date of its issuance. In the contract with Walsh there was no provision for the payment by the city of any amount whatsoever, but the whole cost was to be paid for in special tax bills. Charter of 1898, secs. 10, 11 and 14, art. 9. Kansas City is entitled to the possession of land condemned for parks or boulevards when the compensation adjudged to be paid therefor is made or paid into court. Sec. 28, art. 10 charter 1898. The passing of the title to land condemned relates back to the date of the judgment of the confirmation of the verdict of the jury whenever the proceedings are finally affirmed and the awards paid. In re Paseo, 78 Mo.App. 521. The judgment of confirmation in the condemnation proceeding was rendered September 14, 1901; the tax bills for the sewer construction were not issued until March 15, 1902. It is apparent that the city owned the property in fee simple under the "Paseo Extension" condemnation at the time the tax bills were issued to Walsh. It is apparent, too, that the city is not liable on special tax bills issued against land which it owns in fee simple, but a certificate of indebtedness therefor must be issued by the Board of Public Works and the amount for which the certificate stands is appropriated for the holder thereof by ordinance of the Common Council. The provisions of the charter relative to taxation or liability for special assessments must be strictly followed and construed. Westport v. Mastin, 62 Mo.App. 654. (3) The charter furnishes a further and, if possible, more vital reason for non-liability of Kansas City in this case. Section 10, article 9, provides that the cost of the sewer shall be spread over the area of the sewer district "exclusive of streets, avenues, alleys and public highways." And section 14, article 9, provides that the certificate heretofore mentioned, which the Board of Public Works shall issue against property owned by Kansas City in fee simple for special improvements shall not apply to "any land . . . used as a street, avenue, alley or public highway." The property against which the seventy-five tax bills were issued was previously condemned by Kansas City for a public highway. The title to ordinance No. 13067 discloses its purpose to be: "An ordinance to open and establish a public parkway in the south park district in Kansas City, Missouri." A description of the property proposed to be taken therein discloses that it is a long ribbon-like piece amounting to a wide street or avenue. Kleopfert v. Minneapolis, 90 Minn. 158. Inasmuch as the city acquired the title to the land against which these tax bills were issued for a public parkway some time previous to the issuance of the tax bills and that the lands were therefore not such that tax bills could be issued against them, this proceeding cannot be maintained.
W. R. James and Scarritt, Scarritt & Jones for respondent.
(1) The appellant's record is insufficient to confer jurisdiction on this court. (a) The record proper as there abstracted does not show the filing of a motion for new trial. This is fatal. Sheridan v. Post, 140 Mo.App. 96; Harding v. Bedoll, 202 Mo. 625; Alt v. Dines, 227 Mo. 418. (b) The record proper as there abstracted fails to set out any affidavit for appeal, or the substance of any such affidavit. This is fatal. Shemwell v. McKinney, 214 Mo. 692; Greenwood v. Parlin-Orendorff Co., 98 Mo.App. 407. (2) There is no merit upon the record in this court in any of the alleged errors of the trial court recited in defendant's motion for a new trial, because appellant's abstract of record does not purport to set out all of the evidence adduced at the trial, nor does it recite any exceptions to the testimony or rejection of evidence by the court, nor does it complain of the law as declared by the court at the request of the plaintiff. (3) There is no merit in the city's contention, advanced for the first time in this court, that the lots or tracts of land described in the tax bills were not chargeable for the cost of the sewer on the ground that they were not then (March 15, 1902) private property, but were a street. (a) No such issue is raised by the pleadings. The petition charges that at the time the sewer work was completed and tax bills issued the lots were owned by and in the possession of private individuals as owners; the answer expressly admits and states that the tax bills were issued against these lots, but that the certification spread upon the records of the Board of Public Works apportioning a certain charge against each of these lots, followed by the delivery of special tax bills, did not impose a liability upon the city as the owner of the lots in question in fee simple absolute, as contemplated by section 14, article 9, of the city charter. (b) Under all the proofs construed in the light of the express declarations of the Constitution of the State contained in the Bill of Rights (Art. 2, sec. 21), and the provisions of the city charter in respect to issuance of tax bills to pay for sewer work and the interpretation put upon those provisions by the officers of the city at the time, there can be no question that the officers of the city, whose duty it was to issue special tax bills, could not have done otherwise than issue the bills against these lots. (4) When the tax bills were issued (March 15, 1902) the lands charged were not a street, boulevard or parkway, but were lots and tracts of land owned by and in the possession of private individuals. It is true that on that date a condemnation proceeding was pending, but it is equally true on the showing made in this record that the city had the absolute right at that time and for months thereafter to dismiss its proceeding, take nothing thereby and be liable to no individual for what it had already done. If these lots were private property at that time there can be no question but that the assessing officers did their duty, and their full duty, in levying the assessments and issuing the bills against those lots; and in that view of the case it is absurd to talk of mandamus as a remedy to make them do something different. There is no charter authority for them to do now anything different from what they did then. If these lots at that time were public property they were not a street, nor highway, because property occupied by stores and residences is not a street or highway; and therefore if they were then owned by the city in fee simple absolute they would be chargeable as city property with their pro rata share of the cost of the work. (5) The amounts apportioned against the lands in question could not have been deducted from the condemnation award for these lands because the value of the lands in the condemnation proceeding was fixed at a trial had June 3, 1901, and the improvements for which the assessments were levied were not completed, nor were tax bills issued therefor, until March 15, 1902. In re Paseo, 78 Mo.App. 518. (6) The city, having confiscated the plaintiff's property in these tax bills by procuring a final judgment long after the tax bills were issued, by divesting the property owners of their title, possession and ownership of the lands charged, and vesting the same in the city for public use and refusing to pay the amount of these assessments, is clearly liable to the plaintiff under the State and Federal constitutions guaranteeing persons against the deprivation of their property without due process of law. (7) It is absurd to assert under this record that the contractor to whom the tax bills were issued by the city in good faith, and receipted therefor in good faith as full settlement of the contract price, is estopped by that receipt from maintaining this suit. Paving Co. v. Denver, 72 F. 336; Paving Co. v. Harrisburg, 64 F. 283; Electric Light & P. Co. v. Ft. Dodge, 115 Iowa 568; Pipe & Tile Co. v. Callahan, 125 Iowa 358; Oster v. City of Jefferson, 57 Mo.App. 485; Fisher v. St. Louis, 44 Mo. 482; Paving Co. v. Chicago, 139 Ill.App. 121.
OPINION
In Banc
-- This is an action at law in seventy-five counts for divers sums of money aggregating in all the amount of $ 3924.42. Plaintiff sues as the assignee of one Michael Walsh, who made a contract with defendant city to construct certain sewers therein.
All of the seventy-five counts in the amended petition were identical. This petition, in the view which we take of the case, is important, and in connection with the tax bills and the assignments thereof, is decisive of the...
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