Wells v. City of Weston

• Decision Date: 31 January 1856
• Citation: 22 Mo. 384
• Parties: WELLS, Appellant, v. THE CITY OF WESTON, Respondent.
• Court: Missouri Supreme Court

22 Mo. 384

WELLS, Appellant,

v.THE CITY OF WESTON, Respondent.

Supreme Court of Missouri.

January Term, 1856.

1. The legislature can not authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corporate limits.

Appeal from Weston Court of Common Pleas.

This was a petition filed by John B. Wells to set aside a sale of his land, made under the authority of the city of Weston, for the payment of a tax which the city claimed the right to levy and collect, and to enjoin the execution of a deed. The 5th section of the 1st article of the act to incorporate the city of Weston, approved March 3d, 1851, provides, that “the inhabitants of said city shall have power to purchase, receive and hold property, both real and personal, within said city; to purchase, receive and hold property, real and personal, beyond the city, for burial grounds, and for other public purposes.” The 1st section of the 5th article conferred upon the inhabitants power “to levy and collect taxes on all property, real and personal, within the limits of the city, not to exceed one per cent. per annum upon the assessed value thereof, and may enforce the payment of the same in any manner to be provided by ordinance, not repugnant to the constitution of the United States and of this state.” The 36th section of the same article conferred the power “to assess and collect a tax on all real estate outside of and adjacent to the corporation, to the distance of one-half mile; Provided, that no tax shall be assessed as aforesaid of more than one-half of one per cent. per annum.” The 39th section authorized the city “to make all ordinances which shall be necessary and proper for carrying into execution the powers specified in the act, so that such ordinances be not repugnant to, nor inconsistent with, the constitution of the United States.” Under the 36th section of this act, the city, on the 25th of April, 1851, passed an ordinance providing “that a tax of one-half of one per cent. be levied upon all property, real and personal, within half a mile of the limits of the city.”

On the 15th of August, 1851, an ordinance was passed authorizing the sale of land upon which the taxes should be unpaid, and providing the mode of making the sale. The 5th section authorized the execution of a deed to the purchaser, after the expiration of the time to redeem.

Under the authority conferred by the charter, and pursuant to the provisions of these ordinances, a tax of one-half of one per cent. was levied on the land of the plaintiff, lying outside of the city limits, but within half a mile therefrom; and on the 8th of October, 1852, the land was sold by the city collector for the tax, and bought by the city.

A demurrer to the plaintiff's petition, showing all the facts, was sustained by the court below; and the plaintiff appealed. The cause was argued in this court by Messrs. Abell, Stringfellow and Vories, for appellant; and by Mr. Gardenhire, for respondent. The following is a very general and meagre statement of the points argued:

Abell, and Stringfellow, and Vories, for appellant.

I. So much of the charter as authorized the city to assess and collect a tax on land lying beyond the limits of the city is unconstitutional. 1. The constitution is not a mere limitation, but a grant of power. The government does not possess all power not prohibited, but only such as is granted. 2. There is no specific grant of the power in controversy, nor is it included in the grant of legislative power. (1 Dana, 501; 5 Dana, 30, 31; 6 Barr. 507; 4 Harrington, 479; 4 Hill, 145; 9 Gill & Johns. 365; 7 Gill & Johns. 7; 1 Bay, 98.) 3. It can not be derived from the power to organize municipal corporations, which is not a substantive, independent power, but a mere means of carrying into execution other powers, and is limited by the end to be accomplished. (Marshall, C. J. 4 Wheat.) 4. Nor can it be derived from the power to tax. (4 Hill, 82; 4 Comstock, 423, 424.) 5. The power in question is not only not granted, but is expressly prohibited by the constitution, both by the clause prohibiting the exercise of judicial power by the legislature, by the declaration, “no person shall be deprived of life, liberty or property except by the judgment of his peers, or by the law of the land,” and by the declaration, that “no private property ought to be taken or applied to public use without just compensation.” 6. The power claimed is in effect a power to take private property from one and give it to another, which is prohibited by the fundamental principles of free government, (Story, J. 2 Peters; Scudder v. Trenton, Dela. Falls Co. Saxton, 694,) and it violates the “inalienable right of life, liberty and the pursuit of happiness.”

II. No power is given by the charter to sell lands outside of the city for taxes, and it will not be presumed. (9 Mo. Rep. 513; 4 Peters, 513; 4 Halsted, 352.)

III. The city has no capacity by her charter to purchase lands lying outside of the city, for the purpose of collecting her taxes. (4 Shep. 224; 2 Scamm. 87.)

Gardenhire, for respondent. The 36th section of the 5th article of the act to incorporate the city of Weston, is constitutional. 1. The power of the general assembly is unlimited, except when restrained by the constitution. (1 Tucker's Com. 4; 1 Kent, 493 to 501; 20 Wend. 381; 1 Hill, 329; 9 Mo. Rep. 507; 13 Mo. Rep. 412-13; 15 Mo. Rep. 22.) 2. Such an exercise of power is not restrained by the constitution. (9 Mo. Rep. 507; 13 Mo. Rep. 412-13; 15 Mo. 1, 22, 668; 18 Mo. Rep. 210, 214, 215, 238; 19 Mo. 12, 15; 11 Mo. 102, 104, 105; 15 Pick. 60; 4 Cow. 421; 4 Peters, 516, 561, 563; 4 Wheaton, 428; 24 Wend. 68.) 3. It is not taking private property for a private purpose, or private property for a public purpose, but simply authorizing the assessment of a tax for public purposes. (4 Pick. 463; 12 Pick. 477; 23 Pick. 394-5; 2 Porter, 296, 303; 3 Paige, 73, 74; 24 Wend. 68.) 4. The city had power to sell to enforce the payment of the taxes, (Art. 5, § 1, of the charter, 9 Mo. Rep. 509; 13 Mo. Rep. 41,) and to purchase. (Art. 1, § 3, of the charter, R. C. 1845, 231; § 1, p. 236; § 23.) 5. The 19th section of the Declaration of Rights, does not require equality of taxation, but simply that all property subject to taxation shall be taxed in proportion to its value. The property subject to taxation is determinable by the general assembly. (5 Pike, 204; 5 Dana, 31; 15 Mo. Rep. 24, 25, 26.)

LEONARD, Judge, delivered the opinion of the court.

The question that has been argued before us upon this record, and the only one that we have considered, is, whether it is competent for the legislature to confer upon the city of Weston authority to tax, for local purposes, land lying beyond the corporate limits. We have considered the matter with all the care that it is our duty to do, when we are required to decide upon the constitutional validity of a legislative act; but being clearly of opinion that this provision of the charter violates the constitutional rights of the citizen, which we are bound to protect, we are constrained to pronounce accordingly. The judgment upon the demurrer will therefore be reversed and the cause remanded.

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