Union Trust Co. of St. Louis v. Pagenstecher

• Decision Date: 31 May 1909
• Citation: 221 Mo. 121,119 S.W. 1103
• Parties: UNION TRUST CO. OF ST. LOUIS et al. v. PAGENSTECHER, Tax Collector.
• Court: Missouri Supreme Court

119 S.W. 1103

221 Mo. 121

UNION TRUST CO. OF ST. LOUIS et al. v. PAGENSTECHER, Tax Collector.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. MUNICIPAL CORPORATIONS (§ 405)—SPECIAL ASSESSMENTS—NATURE.

Special assessments have for their basis special benefits and apply to real property alone.

2. MUNICIPAL CORPORATIONS (§ 958)—TAXATION —STATUTORY PROVISIONS—GENERAL OR SPECIAL TAX—SEWERS.

Rev. St. 1899, § 5969 (Ann. St. 1906, p. 3015), authorizing a city to levy a tax on all its property taxable by the state, to construct a public sewer which should benefit the whole city, and calling such tax a "special public sewer tax," provides for a general municipal tax and not a special tax, in view of other provisions of the section classifying sewers into public, district, and private, and providing for payment of district sewers by special assessment against the particular party to be benefited and private sewers at the individual's expense.

3. MUNICIPAL CORPORATIONS (§ 957)—TAXATION—LIMIT OF AMOUNT.

Const. art. 10, § 11 (Ann. St. 1906, p. 283), prohibits a city having less than 10,000 or more than 1,000 inhabitants from levying and collecting, in any year, taxes in excess of 50 cents on the $100 valuation, except in cases of public buildings on consent of two-thirds of the voters at a special election to determine that question, and provides that it should apply to all taxes, general or special. Rev. St. 1899, § 5969 (Ann. St. 1906, p. 3015), authorizes a city of that class to levy a general tax for a public sewer. An ordinance passed by virtue of the act levied a tax for a public sewer of $2.50 per $100 valuation, which tax was levied without the consent of two-thirds of the voters. Held, that the tax as levied was void as being in excess of 50 cents per $100 valuation as the constitutional provision would be read into the statute.

4. MUNICIPAL CORPORATIONS (§ 957)—TAXATION —LIMIT OF AMOUNT.

Held, also, that the contention that the Constitution dealt only with annual taxes to be levied from year to year, and did not apply to such a tax as was provided by the statute, was untenable, as the Constitution expressly covered both general and special tax.

5. MUNICIPAL CORPORATIONS (§ 957)—TAXATION —LIMIT OF AMOUNT—POLICE POWER.

Held, also, that such tax could not be made valid on the theory that the construction of public sewers is within the police power of the state.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by the Union Trust Company of St. Louis and others against Rudolph Pagenstecher, Collector, to enjoin the collection of a tax. From a judgment for plaintiffs, defendant appeals. Affirmed.

Albert B. Chandler, for appellant. Tyrrell Williams and Paul V. Janis, for respondents.

GRAVES, J.

Plaintiff Union Trust Company of St. Louis is the executor of the last will and testament of August S. Mermod, deceased, and plaintiff Mary E. J. Mermod is the widow of said deceased. As indicated, the defendant is the collector of the city of Kirkwood, Mo., a city of the fourth class, with a population of more than 1,000 and less than 10,000 inhabitants. By the petition is made to appear the respective interests of the parties plaintiff in and to a 26-acre tract of land within the corporate metes and bounds of the said city of Kirkwood, owned by the deceased in his lifetime and conveyed by his will. This land is assessed at $19,600, or was so assessed for taxation purposes for the year 1905.

The said city of Kirkwood being desirous of building a system of public sewers, its board of aldermen, on May 1, 1905, passed what is known as "Ordinance No. 318," levying a tax of $34,300 over the whole city of Kirkwood upon all property made taxable for state purposes, but said ordinance did not fix any rate, but section 2 thereof on that question provided: "Sec. 2. As soon as practicable after the passage of this ordinance, the city clerk shall extend the said taxation upon all property made taxable for state purposes over the whole city of Kirkwood, by making out appropriate and accurate tax books, in which he shall set out in suitable columns opposite the name of each person and the item of taxable property as returned by assessor and board of equalization, the amount of said taxes due thereon, apportioning the said sum of money hereinabove provided for and levied among the several owners of all the said property, according to the respective valuations thereon, as shown by the certified abstract returned to the mayor by the county assessor for the year 1905, as provided by law." The total assessment of the property returned for state and county purposes at that time was $1,799,770, so that, to raise the sum of $34,300, the rate would be a fraction less than $2 on the $100. After the passage of this ordinance, the plaintiffs instituted this suit, attacking the validity of the ordinance. Pending the suit the city amended said ordinance, retaining section 1 thereof as to the raising of $34,300 for building the sewers, but striking out sections 2 to 6, inclusive, and enacting new sections in lieu thereof. The new section 2 thus reads: "In order to carry into effect said levy of $34,300 and further to provide for the construction of said public sewers, it is hereby declared to be necessary to levy, and there is hereby levied, a special public sewer tax of $2.50 upon the $100.00 valuation upon all taxable property in the city of Kirkwood." Upon the passage of this amended ordinance, the city clerk prepared tax books extending said tax therein at the rate of $2.50 on the $100 valuation on the property within the corporate limits, including the 26 acres in which plaintiffs were interested. Tax bills were issued and delivered to the defendant as city collector, who was threatening to collect the same. Said ordinance was passed under the provisions of section 5969, Rev. St. 1899 (Ann. St. 1906, p. 3015), but the said proposition was never submitted to a vote of the qualified voters of the said city. After the passage of the amended ordinance, and the making out of the tax bills and tax books under the provisions thereof, the plaintiffs filed an amended or supplemental petition, alleging all the facts, and setting out said amended ordinance, and alleging that said tax books and tax bills were invalid and constituted no valid lien. The petition also charges that the defendant was threatening suit upon said tax bills, and that such purported levy, tax books, and tax bills, although invalid and illegal, clouded and obscured plaintiffs' title, and by prayer asked for the cancellation of said tax bills issued against this property, as also the cancellation of the entry on the tax books of said tax against the land described, and that defendant be enjoined from further prosecuting or commencing a suit on said tax bill, and for all further relief. After an unsuccessful motion to strike out the amended petition, the defendant demurred thereto, which being overruled, he refused to plead further, and judgment was entered granting to the plaintiffs the relief sought in their petition. From this judgment the defendant has appealed to this court. By the petition it is charged that the ordinance, and inferentially the statute, is violative of certain constitutional provisions. Points upon the demurrer as urged in the brief of appellant will be noticed as far as may be necessary in the course of the opinion. For the present this sufficiently states the case.

1. That the ordinance in question and the statute under which it was passed (section 5969, Rev. St. 1899) makes the tax in question a general tax, as distinguished from a special assessment, to us appears quite clear. The statute reads: "The board of aldermen shall have power to cause a general sewer system to be established, which shall be composed of three classes, to wit: public, district and private sewers. Public sewers shall be...