Seested v. Dickey

• Decision Date: 27 September 1927
• Docket Number: No. 24014.,24014.
• Citation: 300 S.W. 1088
• Parties: SEESTED v. DICKEY et al.
• Court: Missouri Supreme Court

300 S.W. 1088

SEESTED v. DICKEY et al.

No. 24014.

Supreme Court of Missouri, in Banc.

September 27, 1927.

Motion for Rehearing Denied December 2, 1927.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by F. C. Seested against W. S. Dickey and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Miller, Camack, Winger & Reeder, Caleb S. Monroe, and Clarence S. Palmer, all of Kansas City, for appellants.

Scarritt, Jones, Seddon & North, of Kansas City, for respondent.

WALKER, C. J.

This case came to the writer by reassignment. It is a bill in equity to cancel a tax bill against a lot in Jones' addition to Kansas City for the proportion of the taxes assessed against it for the grading of Main street.

The appellant Dickey was the assignee and owner of the tax bill. The Spitcaufskys were the contractors to whom the bill was issued. This appeal is from a judgment of the circuit court in favor of the respondent canceling the tax bill. The subject-matter of this suit is the same as that in Dickey v. Seested, 283 Mo. 167, 223 S. W. 57. In that case the tax bill was held invalid because it was made payable in one payment on demand, when, as the court held, it should have been made payable in four installments. The constitutionality of the provision of the charter of Kansas City for laying off benefit districts was in that case upheld.

It is contended by the respondent that either one of the three following statutes of limitations bars this action:

First. Section 27, art. 8, of the charter of Kansas City, provides that, when an attempted assessment or issuance of tax bill, etc., shall be held invalid, the board of public works may, at any time within one year, reassess the tracts of land subject to assessment, and evidence the same by tax bills.

Second. Section 24, art. 8, charter of Kansas City, provides that every tax bill upon the date of its certification to the city treasurer shall be a lien which shall continue for a period of two years, and no longer.

Third. That the general statute of limitations (section 1317, R. S. 1919) applies. It limits the commencement of an action upon a liability created by the statute, etc., to a period of five years. The right to a tax bill arose when the first tax bill was issued, June S. 1915. The present tax bill sued on was not issued and delivered until more than five years thereafter.

It is further claimed that the tax bill is void because, under the ordinance, which provided for the grading, the assessment was irrational and unreasonable, and constitutes the taking of property without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States, and to sections 21 and 30, art. 2, of the Constitution of Missouri. While in Dickey v. Seested, supra, it was held that the provision of the charter under which the ordinance was passed was constitutional, it was also held that an ordinance enacted under it might operate so unequally as to be unconstitutional, a question left open by the court in that case. In this connection it is claimed that several tracts of land not included in the benefit district so as to share in the cost of the grading were benefited equally with the land included in the district, and should have been made to bear their proportions of the burden of the improvement. These different tracts are shown on plats submitted in the record, and the evidence in relation thereto will be stated more fully later.

On the trial of the case Judge Willard P. Hall, in finding for the respondent, submitted a memorandum stating the reasons for his ruling. He held each one of the so-called statutes of limitations sufficient to bar the action, but he did not consider the merits of the case.

I. Section 27, art. 8, of the Kansas City Charter, is as follows:

"Lien for Improvements, Invalid by Reason of Irregularities, etc., Reassessment. Whenever the city, by a valid ordinance, shall have authorized the making of any public improvement to be paid for in special tax bills and shall have entered into a valid contract for such improvement, and shall have attempted to levy an assessment or issue a special tax bill to pay the cost thereof and said contract shall have been faithfully and fully performed by the contractor, and it shall be made to appear by a judgment of a court of competent jurisdiction or otherwise, that the lien of such assessment or part thereof, or of any or all tax bills evidence the same, is invalid by reason of any omission, irregularity, defect or invalidity in the acts or proceedings of any of the municipal authorities of the city, relating thereto, the board of public works may, at any time within one year after the original issue of the tax bills, reassess any or all of the tracts of land subject to assessment to pay the cost of such improvement, according to the rule of assessment, and in the same manner and with the same effect and evidence the same by like tax bills as is provided in this article for such assessments in the first instance."

The circuit court held that the foregoing section invalidates the tax bill, because the latter was issued more than a year after the date of the original assessment and tax bill.

The appellant urges that a statute of limitations cannot be made the basis for affirmative equitable relief; that it is available only In defense to an action. If appellant is correct, it could not apply to this particular point because the above is not a statute of limitations. It is silent as to when an action may be brought. It can only be said to limit the time within which a second tax bill may be issued for the same work.

The section (section 27, art. 8, of the charter) says that, when it shall be made to appear that the lien of an assessment, or of any tax bill evidencing the same, is invalid, that:

"The board of public works may, at any time within one year from the original issue of the tax bill reassess" the land, "and evidence the same (assessment) by like tax bills * * * as * * * in the first instance."

Assessment of property for purpose of taxation being the basis upon which tax bills are issued, it must precede their issuance. This court, in the former case (283 Mo. loc. cit. 188, 223 S. W. 63), in holding the tax bill invalid, left the assessment undisturbed, and it is valid, unless invalid for reasons which do not affect this particular point.

Because of the manner in which the power is conferred on the board of public works by section 27, in providing that it "may" reassess, etc., it is contended that the maxim "Expressio unius exclusio alterius," is applicable in its construction, and the statute is directory only, and does not prohibit reissuance of tax bills after the time mentioned. It is unnecessary to consider the matter in the light of that rule.

It is not claimed that the board of public works (aside from this section and the general statutes of limitations) is limited as to the time in which it may reissue tax bills, where they have been held invalid. Plainly the section contemplates a reassessment of the property, and for the purpose of the argument we may treat it as if it expressly forbade such reassessment after one year. It must be construed according to its terms, and, if it limits the time in which the city authorities may perform a certain duty, it can apply only to the proceeding mentioned in it. It should not be construed to fix a time for the performance of some act of the city authorities not mentioned, nor necessarily contemplated.

That it relates only to reassessments and not to tax bills issued in pursuance of original assessments is shown by other sections of the charter. Section 3, art. 8, provides how assessments shall be made. After the assessment of the value of the property by the assessor (charter, page 314, § 3, art. 8), the board of public works, "at the time of accepting any improvement, * * * shall make and levy an assessment against the tracts of land, exclusive of improvements, to be assessed" (section 4, art. 8). After this assessment and apportionment are made, tax bills are issued and delivered to the contractor, and certified to the city treasurer. Section 27 relates literally to the issuance of "like tax bills"; that is, tax bills on a reassessment "like" those issued on the original invalid assessment. The present tax bills are not "like" the original tax bills, because payable in installments. The section, in mentioning the tax bills held invalid, contemplates an invalidity on account of some irregularity in the "acts or proceedings" which authorized them, not an invalidity on account of the form of the tax bills, as in this case.

There is a reason why the assessment should be made immediately after the improvement. The property in the benefit district is assessed in proportion to its actual value. Under section 3, the city assessor is required to make an assessment of the value of the land, and the board of public works is required to act upon the assessment at the time of accepting the improvement. The actual value might change greatly in a short time; an assessment at some subsequent time might involve embarrassment in ascertaining the value of the property at the time the work was done. That affords a reason why there should not be a reassessment after the expiration of a year from the time of the first issuance of tax bills. Whether this is a sufficient reason or not, the framers of the charter may be presumed to have had a reason for requiring reassessments to be made within a year. That, however, does not affect the right to issue the tax bills. If the restriction on the right to reassess the property after a period of one year be construed to affect the right to issue tax bills upon the original assessment after that time, that construction would read into the charter a provision not express nor necessarily implied by its terms.

Further than this, the...