Ross v. Gates
| Decision Date | 20 June 1904 |
| Citation | 81 S.W. 1107,183 Mo. 338 |
| Parties | ROSS v. GATES, KENDALL and KANSAS CITY; GATES and KENDALL, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
Henry N. Ess for appellants.
(1) Plaintiff had nothing but taxbills. They are mere liens on land. They are not land or any interest in land. Sec. 18 art. 9, charter; sec. 23, same art.; sec. 2, art. 9; 1 Jones on Liens (Ed. 1888), sec. 10; Brown v. Pierce, 7 Wall. 217; Conard v. Ins. Co., 1 Peters 443; Watson v. Railroad, 47 N.Y. 162; People v Railroad, 160 N.Y. 243, 176 U.S. 335, affirmed; Peck v. Fenness, 7 How. 620; Chouteau v. Railroad, 122 Mo. 387; Elliott on Roads (2 Ed.), sec. 308; Massingill v. Downs, 7 How. 767; Venable v Railroad, 112 Mo. 103. (2) The obligation of the contractor's contract was not impaired. The assessments for benefits relate back to the date of approval of the condemnation ordinance, November 13, 1895. Charter, art. 10, sec. 20. Before a statute, law or ordinance can be held invalid as impairing the obligation of a contract, the statute, law or ordinance must be enacted after the contract. Waterworks v. Oshkosh, 187 U.S. 446; Waterworks Co. v. New Orleans, 185 U.S. 350; Pinney v. Nelson, 183 U.S. 147; McCullough v. Virginia, 172 U.S. 116; Water Co. v. Easton, 121 U.S. 391; Daggs v. Ins. Co., 136 Mo. 396. (3) The Constitution of the State and the city charter provide for payment of "just compensation" to the owner or into court for the owner. The lienholder is not provided for either in the city charter or in the Constitution of the State. (4) It is said the taxbill is a lien; that is, just like a mortgage with the same rights in the property as a mortgagee; that a mortgage is nothing but a lien. We deny this doctrine. The mortgagee has the legal title in this State. He has more than a mere lien. He is an owner within the meaning of the law and Constitution of Missouri. Schanewerk v. Hoberecht, 117 Mo. 28; Gale v. Mensing, 20 Mo. 463; Railroad v. Green, 68 Mo. 176; Bowlin v. Furman, 28 Mo. 432; Walcop v. McKinley, 10 Mo. 230; Mayer v. Campbell, 12 Mo. 615. (5) The city's title dates back to November 13, 1895, more than two months before the paving contract was made, ten months before the taxbills became a lien. Were the taxbills liens on this fund when issued on December 15, 1896? Where is the provision of law for a taxbill on this fund? This statute makes the taxbill a lien on the land; if it intended the taxbill to be a lien on the condemnation money, why did it not say so? This statute provides that there shall be a judgment against the land in a suit wherein the owners of the land are parties and have notice. A special execution shall issue, the land be sold, certificate of purchase given. This omission to make the taxbill a lien on this fund and to provide for its enforcement can not be supplied by the courts. The affirmative specification that the taxbill is a lien on the land excludes the implication that it is a lien on the fund. Kansas City v. B. & L. Assn., 145 Mo. 53; Suth. on Stat. Con. (Ed. 1891), secs. 325-327. The omission to make the taxbill a lien on these funds can not be remedied by the courts. Hobbs v. McLean, 117 U.S. 579; Grace v. United States, 48 U. S. App. 231; Jones v. Smart, 1 T. R. 52; King v. Burrill, 12 A. & E. 470; Lamond v. Eiffee, 3 Q. B. 913; Bartlett v. Morris, 9 Porter (Ala.) 268; United States v. Railroad, 91 U.S. 85; Denn v. Reid, 10 Peters 527; United States v. Chase, 135 U.S. 261; Nichols v. Nichols, 147 Mo. 409; Taylor v. Pullen, 152 Mo. 439. Any statute authorizing a personal judgment against the owner is unconstitutional and void. St. Louis to use v. Allen, 53 Mo. 44; St. Louis v. Bressler, 56 Mo. 350; Carlin v. Cavender, 56 Mo. 289; Stadler, Admx., v. Roth, 59 Mo. 402; Seibert v. Copp, 62 Mo. 186. (6) Taxes can not be turned into judgments without special statutory authority. Carondolet v. Picket, 38 Mo. 130; State ex rel. v. Goodnow, 80 Mo. 275; State ex rel. v. Snyder, 139 Mo. 552; Otis Pearce v. City of Boston, 3 Met. 521; Turnpike Corporation v. Gould, 6 Mass. 44; Camden v. Allen, 2 Dutcher (N. J.) 401. (7) The taxbill is only a lien on the land for a limited time. During that time no one can acquire that land in any manner whatever without taking it subject to this lien. This restriction does not apply to the King, the State, the United States or the Sovereign Power, wherever it may reside. Clinton ex rel. v. Henry County, 115 Mo. 566; Wilson v. Berkley, Plowden 236; Case No. 142 (Oct. 26, 1746), 1 Atkyn 261; 1 Blackstone's Comm. (3 Ed.), 261; 1 Kent, Comm., star page 460; Black on Interpretation of Statutes, p. 119; Sedgwick on Stat. and Cons. Law, 337; Endlich on Interpretation of Statutes, sec. 161; State v. Shelton, 47 Conn. 405; Commonwealth v. Hutchinson, 10 Pa. St. 466; Saunders v. Commonwealth, 10 Gratt. 494; People v. Rossiter, 4 Cowen 143; Johnson v. Auditor, 78 Ky. 285; Inhabitants of Elizabeth v. Skillen, 79 Me. 594; Smith v. Hodson, 50 Wis. 282; Bradley v. Bradley, 71 Ga. 78; United States v. Herron, 20 Wall. 255 (cited Lamp Chimney Co. v. Brass & Copper Co., 91 U.S. 664). (8) The last installment of the taxbills in controversy matured May 31, 1900. The lien expired May 31, 1901. The statute requirements to prolong the lien beyond this time were not complied with and could not be in this suit. The land can not be sold in this suit.
Amos H. Kagy for respondent.
(1) Appellants' first proposition is that Michael Ross did not own this land nor any interest in it. We concede that the legal title to the land condemned in the proceedings to establish the "Parade," was in appellants Gates and Kendall, subject to the lien of the taxbills issued against it, but contend that the contractor, Mahoney, did have an interest in it. He had a lien or charge upon it, dependent only on the fulfillment of his contract; which lien attached when the taxbills were issued, December 16, 1896, the date of delivery. Sec. 18, p. 153, city charter. (2) The third proposition in appellants' brief, is that the Constitution of the State and the city charter provide for payment of just compensation to the owner of the land taken for public use, and the lienholder is not provided for either in the city charter, or in the Constitution of the State. This may be conceded as a correct statement, as a legal proposition, but it will not be maintained that because no remedy is provided, the contractor must lose his claim. Ubi jus ibi remedium. Or, the rights of a lienholder can be adjudicated without his presence in court, nor that his rights can be prejudiced by a proceeding to which he was not a party. This same constitutional provision invoked by appellants is as applicable to plaintiff, or to the contractor, Mahoney, as it is to appellants in this case. We have seen that he was in court, and the fact that no special finding was made for him can not militate against his claim. It is true that the lands of Gates and Kendall can not be taken for a public use without just compensation, and the Constitution does not make special provision for ascertaining compensation, for those who are not landowners. The language is, "Private property shall not be taken or damaged for a public use without just compensation" (sec. 21, art. 2, Constitution); and it follows that land is no more private property than rock, lime, sand, cement and labor, and if the city can not take land for a public use without just compensation, it can not take rock, lime, sand, cement and labor without just compensation -- the very thing it did when it took these articles from contractor Mahoney, and laid them upon a public street, for a public use. Any other construction of this constitutional provision would be to say that the framers of the Constitution had in mind that private real estate only can not be taken for a public use without just compensation; but that private personal property may be taken without just compensation -- a reductio ad absurdum. The fact is they had in mind that no property which is private, real, personal or mixed, shall be taken for a public use without just compensation.
This is a proceeding to have a portion of the proceeds of the condemnation of certain lands in Kansas City for park purposes, applied to the payment of certain special taxbills which were issued against the said land for benefits thereto caused by the improvement of the street on which the land fronted.
The facts are these:
The defendants Jemuel C. Gates and William W. Kendall were the owners of the land. On October 15, 1895, on the recommendation of the board of public works, the city council passed an ordinance entitled, "An ordinance to pave Fifteenth street from the west line of Virginia avenue to the east line of Woodland avenue as a business street." The ordinance recited that the board of public works had designated asphalt laid on concrete, vitrified brick laid on concrete, and macadam, consisting of six inches of native limestone, six inches of Bethany Falls limestone, and one inch of screenings, and including a brick-paved margin, as the materials which the owners of the majority of the front feet of the land fronting on the street, should have the right to select from for the improvement of the street. The ordinance contained other provisions for notice to the property-owners, for the issuance of special taxbills, for the contract, etc., which it is not necessary to set out herein.
On the thirteenth of November, 1895, the city passed an ordinance to open and establish a public park to be known as the "Parade." On the twenty-fourth of December, 1895 the city entered into a contract with John Mahoney, to macadamize said Fifteenth street,...
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