Platte City Ben. Assessment Special Road Dist. of Platte County v. Couch

• Decision Date: 03 July 1928
• Docket Number: 26682
• Citation: 8 S.W.2d 1003,320 Mo. 489
• Parties: Platte City Benefit Assessment Special Road District v. J. W. Couch, Appellant
• Court: Missouri Supreme Court

8 S.W.2d 1003

320 Mo. 489

Platte City Benefit Assessment Special Road District v. J. W. Couch, Appellant

No. 26682

Supreme Court of Missouri

July 3, 1928

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Reversed.

L C. Harper for appellant.

(1) Plaintiff district has no legal existence, and hence, no authority to issue tax bills. R. S. 1919, Chap. 98, Arts. 7 and 8; Secs. 10800, 10833. (2) The statutes providing for the improvement and the issuance of tax bills therefor were not followed, by reason of which the 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, and pp. 356, 1372 and 1373; Collier Estate v. Western Paving & Supply Co., 180 Mo. 362; St. Louis v. Koch, 169 Mo. 587; City of Nevada to use Gilfillan v. Eddy, 123 Mo. 546; Town of Trenton v. Coyle, 107 Mo. 193; Cole v Skrainka, 105 Mo. 303; Smith v. City of Westport, 105 Mo.App. 224; Leslie v. St. Louis, 47 Mo. 477; Ellis v. Railroad, 51 Mo. 200; White v. Platte County, 73 Mo. 30; Plum v. Studebaker, 89 Mo. 61; City of Sedalia v. Donohue, 190 Mo. 407; 2 Elliott & Elliott, Roads and Streets, sec. 665; Merritt v. Portchester, 71 N.Y. 309; 2 Dillon, Mun. Corp., sec. 769; Cooley on Taxation, p. 283; City of Kirksville v. Coleman, 103 Mo.App. 221; Excelsior Springs v. Ettenson, 120 Mo.App. 223; Herman Const. Co. v. Lyon, 277 Mo. 628; City of Elsberry v. Block, 120 Mo.App. 20; 28 Cyc. 1136, 1164; 29 C. J. 744, 749; Hutchinson v. City of Omaha, 52 Neb. 345; Tufts v. Somerville, 122 Mass. 273; Morse v. Buffalo, 35 Hun, 613; John Hill Const. Co. v. Goldsmith, 237 S.W. 860; Bell v. Johnson, 207 Mo. 281; Lyon v. Alley, 130 U.S. 177, 32 L.Ed. 902; King Hill Brick Mfg. Co. v. Hamilton, 51 Mo.App. 120; Crane v. French, 50 Mo.App. 367; Note, 56 L. R. A. 192. (3) Secs. 10841, 10844, Chap. 98, Art. 8, by which the assessment is fixed, are violative of the Due Process Clauses of Articles 5 and 14, Amendments to U.S. Constitution, and of Sec. 30, Art. 2, Const. of Missouri and the equal Protection Clause of said Art. 14. Norwood v. Baker, 172 U.S. 269; French v. Barber Asphalt Pav. Co., 150 Mo. 534, 181 U.S. 324, 45 L.Ed. 879; Gast Realty Co. v. Schneider Granite Co., 240 U.S. 58, 60 L.Ed. 523, reversing 259 Mo. 153; Embree v. Road Dist., 240 U.S. 242; 1 Page & Jones, Taxation by Assessment, pp. 198-200; Note, 28 L. R. A. (N. S.) 1191. (4) Secs. 10841, 10842, Chap. 98, Art. 8, are violative of the constitutional due process of law and equal protection of the law clauses before referred to, and the whole article is likewise invalid for failure to provide general notice and hearing on question of benefits. State v. Loomis, 115 Mo. 307; A. T. & S. F. Railroad Co. v. Matthews, 174 U.S. 96; Seaboard Air Line Ry. v. Seegers, 207 U.S. 73; Judson on Taxation (2 Ed.) 418, 475-476; Taylor on Due Process of Law, 357; Davidson v. New Orleans, 96 U.S. 97; 6 R. C. L. 372; Browning v. Hooper, 269 U.S. 396. (5) The local improvement proceeding by the district pursuant to Chap. 98, Art. 8, R. S. 1919, was superseded by the adoption of the road into the state system and improvement of same pursuant to Acts of August 4 and 27, 1921, Laws 1921, 1 Ex. Sess., pp. 126-167. Secs. 14, 24, 25, 28, 29 and 37, Act of Aug. 4, Laws 1921, 1 Extra Sess.; Secs. 2164, 10837, R. S. 1919; 25 R. C. L. 193; Provident Assn. v. Kentucky, 239 U.S. 103; Louisville & Jefferson Terry Co. v. Kentucky, 198 U.S. 341; 1 Dil., Mun. Corp. (5 Ed.) sec. 354, p. 616; West Chicago Park Comrs. v. City of Chicago, 152 Ill. 392; 1 Page & Jones, Taxation by Assessment, p. 1089, sec. 637; 29 C. J. 742; Houston v. McKenna, 22 Col. 330; Anderson v. Costelyon, 75 N. J. L. 532; New Orleans v. Warner, 175 U.S. 120. (6) The judgment is personal, unauthorized and void. Cole v. Armour, 154 Mo. 333; 29 C. J. 478; City of St. Louis v. Bressler, 56 Mo. 350; Galbreath v. Newton, 30 Mo.App. 380; City of Springfield ex rel. v. Deming, 215 Mo.App. 309; Heman Constr. Co. v. Loevy, 179 Mo. 455.

A. D. Gresham and James S. Simrall for respondent.

(1) The validity and territorial extent of a municipal corporation cannot be litigated in a suit by the district for taxes. Burnham v. Rogers, 167 Mo. 17; State ex rel. Kersey v. Simms, 309 Mo. 18; State ex rel. Roberts v. Eicher, 178 S.W. 171. (2) Irregularity in the assessment list or tax list is not a defense to an action by a municipality for taxes. State ex rel. McBride v. Sheets, 279 Mo. 429; State ex rel. Kersey v. Coleman, 274 S.W. 1108. (3) A taxpayer cannot be relieved from payment of taxes on the ground that they are being improperly expended, misapplied, or misappropriated by the authorities. 37 Cyc. "Taxation," p. 1160; Abbot on Public Securities, p. 769, sec. 371, "Diversion of Funds;" Anderson v. City of Mayfield (Ky.), 19 S.W. 598; Thompson v. St. Louis, 253 S.W. 969; Campbell v. Clinton Co. (Ky.), 195 S.W. 787; Hannibal Railroad v. Marion Co., 36 Mo. 307; Carter v. Hamilton, 94 Mo. 544. (4) The road law under which respondent district was organized violates no provision of the state or Federal Constitution. State ex rel. Road Dist. v. Thompson, 285 S.W. 57; Houck v. Little River Drain. Dist., 248 Mo. 373, affirmed 239 U.S. 254, 60 L.Ed. 266.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit brought by Platte City Benefit Assessment Special Road District of Platte County to foreclose its seven special tax bills against the defendant's land aggregating $ 1135.36, including interest. From a judgment and decree for plaintiff the defendant appeals. The answer, motion for a new trial and assignments of error bristle with constitutional questions, State and Federal, but as we think one question is decisive of the case, we shall proceed to a statement of facts leading up to it.

The district was organized in February, 1920, under Laws 1913, pp. 677-695, now Article VIII, Chapter 98, Sections 10833-10857, Revised Statutes 1919. These statutes are long and intricate, and we shall not attempt to do more than set out the substance of those immediately involved. Suffice it to say, Sections 10841 et seq. authorize the permanent improvement of any designated road in the district by special assessment against all the land therein, upon petition of the owners of a majority in acreage of the land in the district within one-half mile of the proposed road improvement. The special assessment is to be paid in from one to fifteen installments as the petition may request; in this case it was one.

Whenever such a petition is filed with the commissioners of the district they are required to have made a map of the district showing the road to be improved; also a profile of the road, plans and specifications for the improvement, and an estimate of the cost thereof. All these are to be submitted to "the state highway engineer" for approval, and when so approved, the road commissioners make a list of all the lands in the district and put a valuation thereon, showing on the list what lands lie within one-half mile, what within a mile, what within one and one-half miles, and what at a greater distance of the road improvement.

When matters have reached this stage the commissioners file the landowners' petition, the map, profile, plans and specifications, estimate and land list with the clerk of the county court, who thereupon gives notice by publication that the court will on a day certain consider protests, objections and exceptions to the project. Persons owning land in the district within one-half mile of the road improvement may file written protests there against, and anyone interested in any land in the district may appear and show reason why the road improvement cannot be made by special assessment as proposed. This part of the procedure is covered by Section 10842, Revised Statutes 1919, which is supposed to be the same as Section 10620, Laws 1913, pp. 684-686; but, evidently through mistake, following the word "such" and before the word "approval" in the third line of said Section 10842, all that part of the section appearing on page 685, Laws 1913, has been omitted. So reference to the session acts is necessary to get the full text of the legislation.

If, on hearing and consideration of the objections and protests, the court finds that the owners of a majority of the acreage in the district within one-half mile of the improvement have protested, or if sufficient reason be shown why the improvement should not be made by special assessment, the court is required to dismiss the petition -- at the cost of the petitioners, first ascertained and adjudged. But if the court finds otherwise, then further hearings are held to consider objections or exceptions (if any) to the facts and valuations shown on the land list. Any necessary changes or corrections having been made in these, the list is approved by the court and a special assessment levied against all the land in the district for the cost of the improvement shown by the estimate, plus the petitioners' expenses, including a reasonable attorney fee, plus probable future working, administrative and incidental expenses, plus ten per cent of the whole for emergencies. The county court also enters an order that the improvement be made in accordance with the plans and specifications. [See discussion of Section 10847, infra.]

The tax is apportioned on the basis of the valuations given in the land list, land in the first zone, or first half mile being taken at one hundred per cent of the valuations there fixed; land in the second zone, or second half mile, at seventy-five per cent of the listed valuation; land in the third zone, or third half mile, at fifty per cent of that valuation; and land in the fourth zone -- more than one and...