The State ex rel. Dunmore Realty Company v. Kimball

• Decision Date: 29 March 1926
• Citation: 282 S.W. 30,313 Mo. 460
• Parties: THE STATE ex rel. DUNMORE REALTY COMPANY v. GEORGE E. KIMBALL, City Comptroller, EUGENE H. BLAKE, City Auditor, and BEN JAUDON, City Treasurer, of Kansas City, and KANSAS CITY
• Court: Missouri Supreme Court

282 S.W. 30

313 Mo. 460

THE STATE ex rel. DUNMORE REALTY COMPANY v. GEORGE E. KIMBALL, City Comptroller, EUGENE H. BLAKE, City Auditor, and BEN JAUDON, City Treasurer, of Kansas City, and KANSAS CITY

Supreme Court of Missouri

March 29, 1926

Peremptory writ awarded.

Mosman Rogers & Buzard and Ralph S. Latshaw, Jr., for relator.

(1) The relator, having paid the special tax, is, under the ordinances, entitled to the refund. Bernays v Wurmb, 4 Mo.App. 231; Savage-Scofield v. City of Tacoma, 56 Wash. 457; Borton v. City of Portland, 62 Ore. 544; Striker v. Striker, 52 N.Y.S. 729; State ex rel. v. Mayor of Milwaukee, 15 Wis. 250. (2) The right to recover the refund was not conveyed to the Schoolings by the transfer of title. Bernays v. Wurmb, 4 Mo.App. 231; Borton v. City of Portland, 62 Ore. 544; Smith v. City of Minneapolis, 95 Minn. 431; Cincinnati v. Hafer, 49 Ohio St. 60; 18 C. J. 287; Corning v. Troy Iron Factory, 39 Barb. 529; Lumerate v. Ry. Co., 149 Mo.App. 47; Turner v. Mo. Pac. Ry. Co., 130 Mo.App 535; Whitecotton v. Ry. Co., 104 Mo.App. 65; Roberts v. Northern Pac. Ry. Co., 158 U.S. 1; Schuylkill Nav. Co. v. Decker, 2 Watts (Pa.) 343; McFadden v. Johnson, 72 Pa. St. 335; In re City of Rochester, 136 N.Y. 83; King v. Trustees St. Patrick's Cathedral, 102 N.Y. 172; In re Opening of Seventh Avenue, 69 N.Y.S. 63; Harris v. Kingston Realty Co., 101 N.Y.S. 1104; In re Leist, 187 N.Y.S. 268. (3) As the relator has a clear legal right to the refund, the writ of mandamus should issue. American Mfg. Co. v. Alt, 184 S.W. 1167; State ex rel. Am. Mfg. Co. v. Reynolds, 270 Mo. 589; State ex rel. City of Jefferson v. Hackmann, 287 Mo. 156; State ex rel. Koehler v. Bulger, 289 Mo. 441.

James S. Summers for Lora A. and Charles F. Schooling; Wallace Sutherland of counsel.

(1) Lora A. Schooling and Charles F. Schooling, grantees in the warranty deed whereby relator conveyed its property after paying the special assessment, are proper parties to the action under the pleading filed. State ex rel. Gordon v. Burkhardt, 59 Mo. 75; State ex rel. v. Wurdeman, 166 S.W. 351; State ex rel. v. Cook, 201 S.W. 364. (2) The underlying principle governing the levying of special assessments, to provide for the cost of public improvements, defines such assessments not as taxes, nor as contributions to the general welfare, but rather as consideration paid for an "increased value" given to the property affected. Lockwood v. St. Louis, 24 Mo. 20; Newby v. Platte County, 25 Mo. 258; Garrett v. St. Louis, 25 Mo. 505; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. Anthony, 30 Mo. 537; Sheehan v. Good Samaritan Hospital, 50 Mo. 155; Farrar v. St. Louis, 80 Mo. 379; Kansas City v. Bacon, 157 Mo. 463; Prior v. Const. Co., 170 Mo. 439; Union Trust Co. v. Pagenstecher, 221 Mo. 128. (3) The "increased value" or benefit accruing to relator's property by payment of his special assessment and assurance of the construction of the Turkey Creek Sewer will be presumed -- no facts to the contrary -- to have entered into the consideration paid for the property by the Schoolings and that thereby relator was reimbursed for the special assessment paid by him. 23 C. J. 62, sec. 1813, C; Kentucky Bank v. Adams Express Co., 93 U.S. 185; Smith v. Minneapolis, 95 Minn. 431; Neer v. City of Salem, 149 P. 476. (4) The language of the ordinances could not be held to govern in this cause. The law and the facts rather than the name of the party designated by the city's own ordinances, should determine to whom the refund should go. An ordinance cannot be made to take away an existing right or impose any unreasonable restraint in the exercise thereof. 28 Cyc. 362; Willock, Municipal Corps., 159; Augusta v. Clark, 124 Ga. 254; McKnight v. Toronto, 3 Ont. 284; Neer v. City of Salem, 149 P. 476. (5) The ordinance did not stipulate that the refund in the case at bar should be paid to relator. (6) The Schoolings are entitled to the refund in this case by the terms of the warranty deed. Neer v. City of Salem, 149 P. 476.

Blair, C. J. All concur, except Otto, J., not sitting.

OPINION

BLAIR

This is an original proceeding in mandamus against the Comptroller, Auditor and Treasurer of Kansas City to compel a refund to relator of the sum of $ 469.80, paid by it in discharge of a special tax bill issued against certain real estate in Kansas City. Our alternative writ issued and service thereof was acknowledged by respondents, who thereafter filed their return. By leave of court a supplemental return was filed for Lora A. Schooling and Charles F. Schooling, her husband, who claimed to be entitled to such refund by virtue of the fact that they purchased the property from relator after said tax bill was paid and before the refund was authorized. Relator filed its reply to said returns. An agreed statement of facts was filed. The case was argued and submitted upon the pleadings and such agreed statement of facts.

The only question for determination is whether payment of such refund should be made to relator or to the Schoolings. To understand the contentions a brief recital of the admitted facts will be necessary. The property described in the petition was situated within the benefit district of what is known as the Turkey Creek Sewer. This sewer was originally paid for by special assessments against all property within the benefit district of said sewer. Said district did not include all of Kansas City. Relator then owned the property in question. It was situated within the benefit district. Relator paid the special tax bill issued against said property and thereafter conveyed said property to the Schoolings by ordinary corporation warranty deed. No reference was made in the deed to the payment of the special sewer tax bill.

After relator conveyed the property to the Schoolings, such proceedings were had by the council and by the voters of said city, at an election held for the purpose, that an issue of bonds of said city in the sum of $ 3,000,000 was authorized to pay for such sewer by taking up unpaid tax bills and by refunding payments previously made by property owners within the benefit district. This was done on the theory that the improvement was a benefit to the whole city rather than only to a part of it. As no question is raised concerning any of the proceedings or the validity of said bonds, we need not notice the various proceedings, except as they may bear on the question before us. Said bonds were issued and sold and the proceeds thereof were paid into the city treasury and an appropriation was duly made for the purpose of taking up unpaid tax bills and to refund to persons entitled thereto any sums paid out by them in discharge of such special tax bills.

The sole reason the Comptroller refused to make a requisition upon the Auditor for the payment of the refund to relator was his inability to determine whether relator or the Schoolings were entitled to receive such refund. The importance of a correct decision upon that question is apparent from the fact, which was stated in oral argument, that there were then 2975 instances where tax bills had been paid and the property against which they had been issued had been conveyed after such tax bills were paid and before the refunds were authorized. The same uncertainty concerning the rights of respective claimants exists in all of these instances.

It is conceded that, if relator is entitled to such refund, our peremptory writ should issue, and if relator is not so entitled, our alternative writ should be quashed and our peremptory writ denied. No question is raised as to the appropriateness of the remedy by mandamus here invoked. Nor is any question raised concerning the right of the Schoolings to appear in this court and file a return, as well as to brief and argue the case. Without passing on their rights in the premises, we will assume, for the purposes of the case that they are rightfully in court.

In brief, it is the contention of relator that it is entitled to such refund under the ordinance, because it paid the special tax bill and that the right to the refund was not conveyed to the Schoolings by the transfer of the title to the real estate. On the other hand, it is the contention of the Schoolings that the increased value or benefit accruing to relator's property by the construction of the sewer, in the absence of facts to the contrary, will be presumed to have entered into the consideration paid to relator by the Schoolings for the property and that, by the payment to it of such consideration, relator was reimbursed for the special assessment paid by it and that the Schoolings are entitled to the refund by reason of their deed from relator, although such refund is not mentioned in such deed. They further contend that the language of the ordinance cannot be held to govern the rights of the parties, even if it provided for the refund to relator as the one who paid the special tax bill.

The proposal to issue bonds for $ 3,000,000 and to use the proceeds for paying unpaid tax bills and for making refunds to those property owners, who had already paid the special assessments against their property within the benefit district, was initiated by Ordinance 47479. The first and second propositions contained in said ordinance had reference to the issuance of bonds for other sewers. The third proposition was as follows:

"For the purpose of assuming the cost of constructing the Turkey Creek Sewer, and paying for the same, and refunding the assessments heretofore or hereafter collected on account of the same, three million dollars."

Ordinance 47480 provided for an election to authorize such bond issue. The language of the third proposal of said ordinance was as follows:

"To increase the indebtedness of the city by...