183 Mo. 451 | Mo. | 1904
This is an appeal by the defendant from a general judgment of the Buchanan circuit court in favor of the plaintiff against the city for the sum of $1,631.70, in an action on five special taxbills issued under the provisions of sections 5661 et seq., of article 3, chapter 91, Bevised Statutes 1899, governing cities of the second class, to which the defendant belongs, for the proportionate amount of the cost of constructing the curbing, guttering and roadway of Third street from the north line of Jule to the south line of Franklin street in said city, charged against five lots, owned in fee simple absolute by the city, fronting on said street and y improvement, and used for the purposes of a city workhouse. There is no dispute about the facts. The judg
‘@ When the city owns in fee simple absolute any lot or parcel of land liable to be charged for work by special taxbill, and in any case of improvement alongside of a public square, or other place held for public use other than a street, avenue, alley or highway, the city shall, out of the general revenue of the city, pay its proportionate share of the cost of the work mentioned in section 5661, a taxbill against the city to be issued, in which the city may be sued in default of payment; but no property held for public use shall be sold, and the judgment shall be the same as ordinary judgments for the recovery of money on contract.”
The objection to the judgment will be considered in the order presented by counsel for appellant.
(1) It is contended that the demurrer to the evidence ought to have been sustained because the petition counted upon special taxbills which charged the proportionate cost of the improvement upon the lots in question, and in such an action a general judgment can not be rendered — and in support of this contention the following cases are cited: Neenan v. Smith, 50 Mo. 525; City of St. Louis to use v. Allen, 53 Mo. 44; Kansas City Grading Co. v. Holden, 107 Mo. 311; City of Clinton ex rel. Thornton v. Henry County, 115 Mo. 569; City of Pleasant Hill v. Dasher, 120 Mo. 679. In all these cases, except City of Clinton v. Henry County, 115 Mo. 569, the suits were against private property-owners. In, that case the suit was against the county on special taxbills against the courthouse square. That case was well considered and reviewing the precedent cases, it was said per Black, P. J., speaking for the court:
'‘ It was held in the case of St. Louis to use v. Clemens, 36 Mo. 468, under a law making taxbills a lien on the property assessed, and providing that the contractor might collect the taxbills by ‘ordinary process of law,’ that the proceeding was one in personam, and
“According to these adjudications, proceedings to enforce special taxbills are in the nature of proceedings in rem, and compulsory payment of the judgment can only be made by a sale of the assessed property. As public property like that here in question can not be sold on general or special execution, and as the Legislature has provided no- other remedy than that of enforcement of the lien, it is quite evident that the statute in question does not apply to or include property owned by a county and used for governmental purposes.
“It is true the cases last cited were all suits against private property-owners; and as it is within the power of the Legislature to make property devoted to public uses liable for local assessments, and as it is contrary to public policy to permit public property to be sold, we may and do concede that the Legislature can provide for the payment of local assessments against public
And further on in the opinion it is said: “The property here in question is strictly public property, and on well-settled principles of law can not be held liable for these local improvement assessments until the Legislature so says in clear terms or by necessary implication, and that it has not done by the statute relating to cities of the third class. There is much merit in the argument that the public, the beneficial owner of the courthouse property, ought, as a matter of fairness, to bear a part of the cost of improving the streets, but the argument addresses itself to the Legislature. Courts must declare the law as they find it.”
Bpt for the aforesaid provision of section 5682, this contention could well be maintained on the authority of the cases cited, but it is fully met and answered by that section of the statute, and the views expressed by this court quoted from the opinion in the case of Clinton v. Henry County, supra. As was said by this court in a more recent case, the principle to be deduced from that case is, ‘‘ That whilst it is competent for the. lawmaking power to include public property belonging to a city or county within the limits of special assessments for public improvements, yet such property is not so included, unless it is so by express enactment or clear implication.” [St. Louis v. Brown, 155 Mo. l. c. 561.] And there can be no question but that the lots in question belonging to the city are by the terms of said section subjected to assessment for local street im
In this connection, it is, however, further contended that section 5682, supra, in so far as it attempts to make a city liable for taxbills, is void because in conflict with sections 6, 10 and 12 of article 10 of the State Constitution.
(2) By section 6, article 10 of the Constitution, the property of municipal corporations is exempted from taxation, and by section 10, article 10, it is provided that, “The General Assembly shall not impose taxes upon counties, cities, towns or other municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may, by general laws, vest in the corporate authorities thereof the power to assess and collect taxes for such purposes,” and by section 12 of said article it is provided that, “No county, city, town, township, school district oí other political corporation or subdivision of the State, shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters .thereof voting at an election to be held for that purpose. . . . ”
So far as this contention is based upon the provision of said section 12, it is sufficient to say that there is not any evidence whatever in the record in.regard to the income and revenue of the defendant city, and hence nothing to bring the taxbills or judgment within the inhibitions of that section of the Constitution, and so far as it is based upon said sections 6 and 10, it is sufficient to say that the taxes and taxation therein mentioned do not include assessments for special benefits for local improvements, as is manifested by a long and unbroken line of decisions of this court. [Exposition Driving Park Co. v. Kansas City, 174 Mo. 425; Kansas City v. Bacon, 147 Mo. 259; Morrison v. Morey, 146 Mo. 543; Clinton ex rel. v. Henry Co., 115 Mo. 557;
(3) But, it is next contended, that if said provisions of section 5682 are not unconstitutional, their effect is only to authorize the city to become indebted in the manner pointed out by section 5557 of said act 'which provides that: “The common council shall not appropriate money for any purpose in excess of the revenue of that fiscal year actually collected and in the treasury at the time of such appropriation and unappropriated. Neither the common council nor any officer in the city, except the comptroller in the single instance in this article provided, shall have authority to make any contract, or do any act binding such city, or imposing upon said city any liability to pay money, until a definite amount of money shall first have been appropriated for the liquidation of all pecuniary liability of said city under said contract or in consequence of said act, and the amount of said appropriation shall be the maximum limit of the liability of the city under any such contract or in consequence of any such act — said contract or action to be, ab initio, null and void as to the city for any other or further liability. . . .” And as no' definite amount of money was first appropriated for the liquidation of the cost of paving the street prior to the letting of the contract, the taxbills are void. This contention is no more tenable than the preceding one. The limitations of section 5557 have no more to do with the provisions of section 5682-than have the constitutional provisions referred to in the preceding paragraph.
Under the provisions of section 5682 the general revenue fund of the city may be charged for the benefits which the property of the city has received by a public
(4) Finally it is contended that tbe judgment is erroneous in that “it calls for interest at the rate of ten per cent.”
By section 5664 of said act it is provided that “each taxbill shall bear interest from its issue at the rate of ten per cent- per annum, if not paid in thirty days after the issue thereof,” and “the judgment shall bear interest at the same rate as the taxbill. ’ ’ The tax-bills were so made, and the judgment followed the bills. There was no error in this. [Asphalt Paving Co. v. Ullman, 137 Mo. l. c. 570; Buchan v. Broadwell, 88 Mo. l. c. 37; Eyerman v. Blaksley, 78 Mo. l. c. 152.]
It follows that the judgment of the circuit court ought to be affirmed, and it is accordingly so ordered.
