State v. Birch

Decision Date15 February 1905
PartiesSTATE ex rel. MUSSER, City Revenue Collector, v. BIRCH et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by the state, on the relation of one Musser, collector of revenue of the city of Plattsburg, against James H. Birch and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. S. Herndon, for appellants. H. T. Herndon, for respondent.

LAMM, J.

Plattsburg is a city of the fourth class, and sues to enforce the lien of taxes levied for 1899 on certain parcels of land in the S. W. ¼ of section 24, township 55, range 32, belonging to appellants. No question is made over the petition. The answer was (1) a general denial; (2) an allegation that this real estate is not, and never was, in the corporate limits; (3) that ordinances, notices, elections, and returns thereof, whereby Plattsburg attempted to extend its limits to include the real estate in question, were insufficient, not in accordance with the laws of this state, nor the ordinances of the city relating thereto, and were illegal and void; and (4) that the statute attempting to confer power on cities of the fourth class to extend their limits over any territory adjacent was unconstitutional, and in violation of sections 3 and 7, art. 10, of the state Constitution. Paragraph 5 of the answer was as follows:

"(5) That the attempt on the part of the said city to extend its limits so as to include the aforesaid real estate was an abuse and an unreasonable use of the power conferred by it by statute to extend its corporate limits, in this, to wit: that said property is not a proper subject for municipal action, and its attempt to take it within the corporate limits of said city would be a gross injustice to private rights, its only justification being a desire to subject it to municipal taxation; that said real estate is an outlying tract, used exclusively for pasturage and orchards, with no one living on it but defendant and his family; that it is separate and remote from the limits of the city, is not needed, and there is no demand for the same. for city purposes, and has no value as such, and is not of a character to be used for such purposes, the greater part of it being rough and broken land; that the same is not connected with the said city in any way, and for the said city to subject the same to municipal taxation would be purely an arbitrary action on its part, without justification or right, and of no benefit to defendants, and to do so would damage the said real estate by placing a burden upon the owner thereof, without any benefit. And having fully answered, defendants ask to be discharged, with their costs."

Paragraph 5 was stricken out on respondent's motion. The cause being tried to the court as a jury, respondent introduced a duly certified tax bill, and rested.

Appellants proved by the city clerk that he had searched for, and could not find, any assessment list handed in by appellants for the year 1898, and that there was no existing record of the passage of an ordinance on March 14, 1887, extending the city's limits. It was then admitted that said ordinance, and the records pertaining thereto, and pertaining to the election ratifying the same, were destroyed by fire. Appellants proved that they gave in no assessment lists, and had refused to do so, though the city's assessor had demanded the same, and further offered evidence tending to show that the land in question was outside the city limits prior to the extension of the same by said ordinance in 1887, at which time the city first attempted to take it in, and appellant James H. Birch testified that, in his "judgment, as a lawyer and citizen," said lands were not now in the city limits. Appellants offered to prove that the land was "used exclusively for farm and pasturage purposes, and that it was not needed by the city for municipal purposes, and had no value as such; that it was an outlying tract of land, and was not adapted for city purposes, and that the only object in taxing it for city purposes was to collect revenue; that it was not connected with the city in any way, shape, or form, and that it lays clear outside of the portion of the city which is laid off in streets and alleys, or lots and blocks," and hence the extension of the city limits was an unreasonable use and an abuse of the power vested in the city to extend its limits, and cast a burden on appellants, without a corresponding benefit. This offer was refused by the court. We have underscored a portion of the above offer to accentuate the fact that the offer was not to show the lands were not adjacent to the old limits of the city, but only to show they were outside the portion laid off in streets and alleys, lots and blocks.

Thereupon appellants rested.

Respondent thereupon offered the duly certified and verified assessor's book of the proper year, showing the listing, valuation, and description of the lands in question, to which appellants objected on the ground that the "assessment list is the best evidence." This objection was overruled. Thereupon respondent was permitted, over the objection of appellants, to introduce two ordinances of the city of Plattsburg, to wit, Ordinance 60 and Ordinance 142.

Ordinance 60, omitting caption, reads:

"Section 1. That at the regular city election to be held on the 6th day of April, 1897, there be submitted to the qualified voters of the city, a proposition to change the corporate limits of said city and fix the same as follows: Beginning at the northeast corner of the northwest quarter of section 24, township 55, range 32, thence north one-fourth of a mile, thence west to the west side of the right of way of the Chicago, Rock Island & Pacific Railway, thence in a southerly direction, along the west side of said right of way to a point due north of the northwest corner of Prospect Addition to the city of Plattsburg, thence south to the south line of section 23 in said township and range, thence east to the southeast corner of said southwest quarter of said section 24, thence north to the place...

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