Walker v. City of St. Louis

• Decision Date: 31 March 1852
• Citation: 15 Mo. 563
• Parties: WALKER v. THE CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

15 Mo. 563

WALKER

v.THE CITY OF ST. LOUIS.

Supreme Court of Missouri.

March Term, 1852.

This was an action, brought by Walker to recover of the city all the taxes beyond one-sixteenth of one per cent. per annum, paid by him for the years 1845 to 1849, inclusive, on real-estate in the new limits. The charter of 1841, which first brought within the city the property thus taxed, provided that the common council should within twelve months thereafter, cause to be graded and macadamized, the carriageway of Broadway, South Seventh, Washington avenue and Market streets, 25 feet wide from the boundaries established by said charter, to the nearest point macadamized within the old limits; and that until such carriageways were made and completed, the lots and grounds in the new limits, should not be taxed for city purposes, more than one-sixteenth of one per cent.

The plaintiff's petition alleges, that the city had not, before the commencement of this suit, caused said carriageway to be graded and macadamized, according to the requirements of said act; but had, nevertheless, taxed the plaintiff's real-estate within said new limits, during the several years named, at or about the rate of one per cent. each year, which taxes the plaintiff was compelled to pay, through the agency of collectors, directed to enforce collection thereof by distress of goods and chattels, or by the sale of the property taxed. The plaintiff claimed, that the city had no right to tax the property in question beyond one-sixteenth of one per cent. each year. The answer of the city sets out, particularly, what was done in an attempted compliance with the charter of 1841, in respect to grading and macadamizing the carriageways or streets named; shows a strict compliance as to Broadway and Market streets, and, that a literal compliance could not, in reference to South Seventh street, have been observed: that if said street had been extended, without deviation, it would have crossed Carondelet avenue, and struck the river considerably north of the new southern boundary of the city, and would have cut up into irregular shape and pieces, lots and blocks previously laid out; impaired the beauty and regularity of that part of the city, occasioned great damage to the owners of said blocks and lots, and have subjected the city to the payment of heavy sums on account of such damages; that no satisfactory arrangement could be made with the proprietors of the land between Lafayette street and the southern limit of the city for extending South Seventh street through their lands to said limit; that in view and in consequence of all these difficulties, it was deemed advisable to connect South Seventh street with what had been called Carondelet avenue, through Lafayette street, and grade and macadamize a carriageway thereon, to such southern limits, which was done accordingly. The answer gives as a reason for deviating from a direct line, in extending Washington avenue to the new western limits of the city, that satisfactory terms could not be agreed upon, extending said avenue through the houses and grounds of Mr. Robbins. The answer then charges, that the mode in which said streets were laid out, graded, &c., besides being less expensive to said city (of which the plaintiff was and has continued to be an inhabitant and tax-payer,) was as much in accordance with, and promotion of the general interest and convenience of the city and its inhabitants, as any other mode that could have been adopted; was never, in any manner, objected to by said plaintiff, but was acquiesced in by him and generally by said inhabitants; that having thus satisfactorily performed the condition of the charter, the city proceeded to levy and collect taxes in the new limits, at the same rate as in the old limits, and continued to do so down to the year 1850; that such taxes were paid without objection, except in three or four instances; that the plaintiff had invariably paid without any protest or objection whatever, and with a full knowledge of the facts upon which his rights in the matter depended, and with a knowledge that one or two other persons had obtained injunctions, restraining the city from collecting taxes beyond one-sixteenth of one per cent. on their property in the new limits. The answer denies all compulsion in collecting the taxes of the plaintiff It charges, that about $150,000 of the taxes collected within the new limits, had, at various times, been expended in grading and paving streets and alleys, and making other improvements in said new limits, with the knowledge of the plaintiff, without any objection from him, but with the acquiescence of himself and others owning property in said new limits, by means whereby the property of the plaintiff, in said new limits, had been increased in value. The answer also states, that the remainder of the taxes collected on property in the new limit has all been expended in payment of the debts of the city, and in laying out and improving streets and alleys therein, and in other ways for the benefit of said city and the inhabitants thereof; all of which was done without objection on the part of said plaintiff, but with his knowledge and approbation, and whereby the plaintiff, as an inhabitant of and the owner of property in said city, was greatly benefitted. The answer then claims, that the plaintiff, by having thus acquiesced in the mode of extending, grading and macadamizing said streets, and by having, with a full knowledge of the facts, without compulsion, but voluntarily, paid the said taxes, and by having stood by and seen, without objection and with approbation, said taxes, as well as those collected of others, expended as aforesaid, in part for his own benefit, has barred and precluded himself from all right to recover any portion of said taxes.

It was agreed to submit the case to the court, and on the hearing, the following facts were admitted to be true: 1st. That the plaintiff paid to the city collector the several taxes mentioned in his petition, and set out in the annual receipts on file at the dates mentioned in the receipts; and that said taxes were assessed on lots owned by the plaintiff, situated within the present limits of St. Louis and without the limits of said city, as existing prior to the 15th day of February, 1841. The assessments are annually stated in the collector's receipts on file. 2nd. The facts stated in the answer, in relation to the streets called Broadway, South Seventh, Washington avenue and Market, are to be taken as proven, and it is admitted, that the provisions of the charter, in relation to said streets have not otherwise been complied with, than as stated in said answer. 3rd. The several payments of taxes by the plaintiff were made by him without objection or protest. They were made to the authorized city collector on the presentment and demand of payment by him. 4th. That from 1843, to the commencement of this suit, the city had collected taxes at the rates mentioned in the answer within the new limits, and, that of the amount thus collected $151,124 66 had, before the commencement of this suit, been expended in grading and macadamizing streets and alleys in the new limits, with the knowledge of and without objection from the plaintiff; and that before the commencement of this suit. all the taxes had been expended by the city, and that the plaintiff from the year 1843, to the commencement of this suit, was the owner of a great deal of real-estate both in the old and new limits. 5th. Either party may read such portions of the published city ordinances as may be relevant to the case.

The parties, respectively, reserved the right of exception and appeal. On the trial the plaintiff read the revised ordinances of 1843 and 1846, in respect to revenue, and the defendant showed in evidence Hutawa's map of the city.

The court below gave the following opinion on the law of the case: 1. That the facts. as agreed, show that the payments in question, were made under no mistake of the facts; and the plaintiff is not entitled to recover back money paid by him with a full knowledge of all the facts, or with full means of obtaining such knowledge, unless the payments were made under compulsion, by taking an unfair advantage of the plaintiff's position or circumstances at the time. 2. That the existence of the power by ordinance, to levy upon and sell the personal property of delinquent tax-payers, and to advertise and sell their real-estate, does not render payments of taxes compulsory, if made without objection or complaint and before actual levy, or seizure, or sale, or advertisement for sale, and in this case there were no compulsory payments, in contemplation of law, and no unfair advantage was taken of plaintiff's position or circumstances at the time. 3. That the plaintiff having made the payments with a full knowledge of all the facts, and without compulsion or unfair advantage taken, the defendant expended the money thus received, and the plaintiff knew it would be expended, as stated in the agreed case; and in law must be considered as having voluntarily given to the defendant the money in question, for the very purposes to which it was applied.

And the court below gave judgment for defendant. To the decision and judgment aforesaid, plaintiff excepted. A motion for a new trial for the usual reasons was made, overruled, and exceptions saved. The bill of exceptions contains an agreement that the parties may read in the Supreme Court any relevant city ordinance, and Hutawa's map of the city shall be treated as part of the record.

SPALDING & SHEPLEY, for Appellant.

I. Money paid on coercion, or by duress, or by mistake, can be recovered back. 4 Pick. 361: A person compelled illegally to pay taxes to support public worship, may maintain an action to recover it back. 12 Pick. 7: A non-resident of a town, owning real-estate therein, being assessed for his poll and personal estate, after paying the tax, can...