*1 OF SUPREME COURT to use v. School of Edina rule), (without our hearing thus reference to wrongfully sought. alter- reason For this our writ was agree properly quashed. mnch I do not native writ is may- be about rule. It is said in by saying I do will risk obiter, but I further obiter upheld. can be believe rule COM- PIONEER TRUST CITY OF EDINA Use of Appellant, DISTRICT CITY PANY, OF SCHOOL EDINA and KNOX COUNTY. Banc,

In November 1924. County 1. APPELLATE JURISDICTION: Where is Defendant. jurisdiction Supreme appeal judgment Court an from a has county in which a defend- a suit tax bills one ants. Liability TAXES: of School District.

2. SPECIAL There no statute authorizing the issuance of tax bills favor of a pay fourth class a school district therein to for the curbing of a street which the school abuts. Property. -: -: Public Under the Missouri

3. Constitution Government, perform a are State schools function, governmental purely public corpora- and are or damages tions, liability or assessments w’ are liable en implication by necessary imposed upon them strictly statute; public property, are as jails, courthouses cannot be so assessed much bordering for the of streets with them, can a rendered and neither [Following City such taxes. the amount of Clinton Henry County, rel. ex -: Stare Decisis. -: This court will -: with the 4. construing its decision overrule greatest statute reluctance action, Legislature many embracing cause of where the fcr legislation framed accordance adhered sessions although decision, if the then decided were might up construe statute for decision time first differently. County: Judgment By (Sec. Liability and Lien. statute -:5. express- belonging real estate R. S. OCTOBER TEEM, Edina School District. to use v. ly of the fourth made tax bills class, therein, street, in- improving as are same situate *2 judgment street, owning abutting a can dividuals lots on county against But neither such tax bills. rendered on against such lien bills constitute nor the tax debt, estate, being for sold real it cannot be for but. county, against of tax valid claim the amount bills fund. must out of its Pleading: petition in a to Clerk.' suit -: -: Notice A 6. of fourth n street, improvement payment ac- of for the class petitions cepted suits tax bills in on such and due form reciting ac- individuals, issued in “were tax bills such sufficient, ordinances,” provisions cordance with county clerk does not recite and is not defective because it provided Sec- notice of such served with (Sec. 8507, 8527, R. S. statute reason another tion for the regularity prima-facie of the evidence of the the tax bill proceedings such assessment. for pars. Courts, 1 J. 34'0. Headnotes Headnotes 1 and 4: 15 C. 511. Municipal Corporations, Cyc 1117, 1170, 1256. Headnote 3: 6: 28 Districts, Cyc. 838. Schools School 35 Appeal M. Circuit Knox Court.—Hon. Newland from Judge.

Pettingill, (in Affirmed and reversed part) (in part). Cottey appellant. W. E.

G. S. Palmer and (1) exemption munici- other “counties and pal corporations taxation,” Art. Con- from 10,sec. Mo. im- stitution, no reference to assessments local provements. 20; Sheehan Louis, Lockwood v. 24 Mo. St. Hospital, 156; v. St. Good Samaritan Farrar v. Henry County, 379; 80 Clinton ex rel. 115 Louis, Mo. v. (2) property, although exempt Mo. 557. School taxes, liable for local improvements. St. Public 26 v. St. Louis Schools Louis, (3) requires 468. abutting Mo. The statute all SUPREME COURT

City v. use School Edina to each, assessed improved side of the street public property the cost includes work. This S.R. R. Sec. 1919; “all” all. S. means Sec. Mo. Co., Wabash Railroad 1909; Pieman Co. v. Const. 111. .Bloomington, 172; of McLetn v. County 221; Mont. 209; Dist., School Kalispell v. Has- 747; 49 Kan. Ottawa, Franklin County Comrs. of New Hospital v. 528; san v. 67 Y. Roosevelt Rochester, N. ' law of the (4) N. Y. A construction York, 84 other exempt property, burden unjustly use would increase construc- district, taxing stat- adopted language tion not be should unless Lockwood v. interpretation. ute will no other bear County, Jasper 20; & W. E. Const. Co. *3 N. 117 v. 67 365, 380; City Rochester, Hassan of Iowa, dis- Y. 528. of The fact that the a school (5) property lien defense satisfy trict could not be sold to is no Wabash the lien. ex rel. v. City declaring City City Chicago Railroad 206 ex rel. Co., 172; Mo. v. of Bloomington, 207 111. McLean v. Chicago, County of 37; 106 111. (6) 209. The tax are made bills X/rima-facie evidence of the of all their validity proceedings leading presumption issue. There is therefore the the statu- that Knox tory proceedings complied have been with so far as is concerned. There County requirement is no Sec, owners be named in for bills curbing. 8507, R. S>1919. M. Smith and for Raleigh

Claud R. J. respondents. All (1) school specifically is exempted by taxes, Constitution from all court- same as house other public buildings, of necessity, for the operation and maintenance of the business Constitution, Government. Article Mo. 6, 10, Section eyes is clearly shows school not to the same liabilities law privately- as owned but a favorite ward of property, is the Govern- 1924. OCTOBER TERM, to use v. School of Edina Legislature, enact could fit, ment. if it It is true the saw subjected provide be laws to improve- payment local they Hence do. but have far. failed so to ments, so Thogmartiri v. Ziegler, 214; not liable. Valle v. Mo. (2) in App. bills The tax School Mo. 11. Dist., 189 1909. chap. R S. were Art. under stipulates sued herein all such as Section 9403 upon lots all as assessment “shall levied pieces ave- street, either side abutting etc., alley highway part thereof, nue, thereon.” Section 9409 it shall when how shows provided, paid, paid it becomes if therein payment way property, lien on to enforce and the property. v. St. Louis enforce the lien on Wright Smith, Neenan Go., 469; 202 Mo. v. Contr. Henry County, Mo. Mo. 525; Clinton v. any v^ay (3) cannot be collected taxes sued for except sellingJthe by enforcing land lien and chapter provided statute. same article and provides been when notices have Section certain given given (which were present cause) then and alone the tax county. no shall become a valid claim As way provided by the collection the taxes law property, presumption the school then it Legislature law the never intended the Henry County, 557; it. Clinton should Thogmartin School 543; Brown, St. Louis v. *4 App. Mo. 11; Railroad, Chandler District, Mo. paving, and SMALL, C. Suit bills for curbing city were Main Street in The of Edina. bills payable for $2140.33, in three annual installments.

petition alleges in the usual form such cases and defendants own or claim to own the land described sought charged payment the tax bills there- some or estate interest therein. The defendants or. .of SUPREME COURT

City Edina to use v. School petition ground each to the filed a demurrer cause to constitute a not state facts sufficient does demurrers, of action. The court said sustained Appeals, appealed Court of to the Louis defendants duly certified the cáuse to this court—the being one of the defendants. urged

I. this The reason court and the sustaining said bills below demurrers that the tax authorizing issue are void there no statute because of tax school district. .of directly presented This is the first time the bill for court, this whether a tax property upon adjoining a street lawfully located schoolhouse is can be property. Edina is a of the fourth class, and the statute, Section Revised Statutes provides under which the issued, tax bills were as follows: ‘‘ paving, macadamizing, guttering, cost curb- ing any all . . . streets ... thereof . connection therewith . . levied upon pieces assessment all lots abutting either . . . side of such street thereon, along improved proportion the distance front foot.”

In St. Louis Public Schools St. delivering 468, opinion, court,' Napton, J., held that was liable to be.assessed under the charter of the for the construction paving, opening sewers, streets sidewalks and streets private property. the same as The school district claimed exempt from taxation under Revised Statutes of 1845. previously

The court had construed said statute the case of Lockwood v. of St. Louis, Mo. delivering opinion, held, Leonard, J., that, under said exempt church statute, building assessments for under sewers the charter *5 OCTOBER TERM, v. School District. of Edina to use city au- provided that said 1849, which St. Louis of “a levy for such sewers and collect thorized ’’ The district.. estate within the on the real tax relied was that Acts of the decision gen- exempted public property from church and distinguished eral taxation as improvements, citing York

for Pennsylvania, cases from New he stating that it “a maxim ought the burden” to feel who feels the benefit science consistent with the interests and dictates “was religion.” St. Judge Schools Public Napton’s was as follows: distinguish have not been able to this ease from “We suggested 20. It been the case of has Lockwood, city corporations concerned in this suit—the that the two identi- and the Louis Public Schools—are of St. Louis composed being constituents, the same interest, cal levied and collected and therefore the local assessment authori- of the schools merely transferring the burden of the ties is treasury although But from one branch of the to another. may in both of St. alike interested citizens Louis corporations, management each invested distinct, governed organized differently in different bodies, responsibilities. important It different rules and corporation people composing to the interest each separate responsibilities should not be these removed. every contrary The doctrine would be that result making a ordinance for a sewer street, prop- district schools had virtually erty, would be tax citizens of the public-schools, when an increase funds of the ample corporation may already be that this latter purposes. of the means land concurring.” judges affirmed, validity square county, for owned courthouse SUPREME COURT use v. of Edina to School *6 square, the adjacent to said was before streets County, Mo. Henry court, ex rel. v. Clinton opinion per held J., 565. In that case court, Black, was that courthouse because the tax bills were void sovereign, general belonged public property and by performing governmental and vital was it a used principle well law, it common function, was by statute, not bound established, “that the was Crown rights of his of which restrain or diminish words Bla. specially [1 therein. unless named interests he be applies principle in favor of Com. 262.] same Interpretation country. [Endlich states in on general rule, it that as a Hence Statutes, 161.] sec. private apply tax intended to are understood and laws Interpretation public property. [Endlich not to ” judge cited then The learned Statutes, sec. Mayor, that a which held Inhabitants v. Mass. exempt courthouse from was building “property it a sewer because was instrumen commonwealth and one of the constituted by performs al functions,” talities one of its though the same court had held that charitable and exempt agricultural property but was was (116 181-89). local taxation Mass. against public Judge that further held it was Black

policy permit courthouse to be sold invitum because provided that “be destruction the means would by government,” carrying because on the law (Sec. 2344, Revised R. Section S. Statutes provided jails, courthouses, that “all clerks’ offices, any county buildings municipality, other owned they grounds, stand, the lots on which and all burial exempt It was execution.” from attachment and remedy statutory further ruled that case they enforcing being a bills, creature of remedy being by statute, exclusive, particular property, and execution county, judgment against which was OCTOBER TEEM, Edina use v. School remedy sought be rendered. could not in that against the both as court held the void, tax bills were square. and the courthouse Judge Public to the case decided As Napton, Judge supra, said, Schools v. Black page report “The that case shows 570-71: right injunctive corporation relief based its exempted the sole property revenue law that the taxation question from local as well as assessments general purposes. ruled This No then, as it the schools. now, presented may be, It or considered. charter made the vast amount of improvements; schools liable street *7 dispute question . . but that . not the As ivas many by plaintiffs, it‘may of the other cases be ob- cited property served that there a wide between is difference strictly . . held and property . uses, used for and the companies cemetery . . . railroads strictly question public property, here principle and on well settled of law be held liable cannot Legis- for these local until the says lature so in clear terms, not been done and.that has ’ ’ relating the statute of the class. cities third per In Louis St. v. 155 Mo. Brown, 561, court, following Henry County J., case Yalliant, therein stated, reasons held that the Pour Courts, jail City and old Hall still used for officesof chargeable city, were not in condemnation with benefits proceeding 12th to widen under Street general of the charter. terms Cemetery

In Mullins v. Association, 239 Mo. 681, cemetery was whether was constructing'sewers express taxation for without words City, providing. the charter of Kansas so The court general held that it included was in the terms of the char express necessary, ter, and words were not distinguished Henry County was from Clinton v. SUPREME OP COURT

City use School District. of Edina to v. prop- “strictly public” cemetery that a Henry passed in the erty, courthouse, such as

County case. Thogmartin v. Appeals in

The Kansas Court App. before had 10, District, Nevada School Mo. precise question held that school property” language “all not included were charged designating should used in adjoining under street an Henry County, rel. v. the cases Clinton ex and Mullins Brown, Louis Mo. Mary’s Cemetery also It Assn., 239 Mount St. against that such held assessment April Act of the authorized Section 9254 (Laws 337), p. follows: “All 3, 1911 any county, city, all other lands owned rights-of-way fronting railroad lands, cemeteries, and improvements, abutting on be liable for said shall improvement, proportionate part their cost of such against property as tax bills shall be issued such property,” but county, city, or recovered therefor company. railroad (page 13)

The learned court “A that: municipal county, not a nor it a corporation. [State rel. v. Gordon, ex 231Mo. And the title to is vested school district *8 corporation. public, municipal, a [State and not aas ex . . rel. . Henderson, under Hence, statutory particular of the rule construction that where by terms are used followed the in latter terms, only subjects clude of same nature and kind are as particularly mentioned,” the lands of school districts ought meaning not be deemed within included phrase public all “other lands.” furthermore And (page that: “School and cannot do not properly 'public grounds.’ . . come within the . term, (the Legislature) The fact it that did not mention them OCTOBEE TEEM, City of Mina to use v. School District. strong in- that not evidence it did them intend ‘ ’’ ‘ question provides in for that: The statute cluded, county, city railroad

a company, in case or nothing which connection

but in this mentions by judicial include stretch construction would school district.” may Henry County

But it be said that case, grounded supra, which all the other are cases, based, was square on strictly was the idea courthouse public property, assess to sell it opera cripple ments would the State Government in its strictly tion, whereas not such public property ruling as come within the judge case. The learned not Intend overrule did case of Public because Louis, v. St. 26 Mo. 468, Schools 571): (page may he said of that case ‘‘It be that by charter made the vast amount held improvements; schools liable street but that was question dispute.” passed under Much water has the decision wheel since in Public Schools St. Judge 26 Mo. 468, and, stated as Black, dispute now under consideration not in discussed nor general language the court. Whether char impose improve ter in that case was sufficient to ment taxes on the have schools does not seem been but it considered, assumed that if was specially exempted Acts liable 1845, it was property, taxes, the same church de as cided in the Lockwood 24 Mo. 20. Under Consti tution have intrenched schools been part thoroughly as a of the State Government, and it is they government established that are an arm of perform public governmental or and not function, special corporate duty. They are administrative purely corporations, always been liable State, counties ages and not dam torts or negligence employees their They officers. are liable where cases *9 MISSOUBI, SUPBEME COUBT Edina to use v. School District. upon imposed liability implication necessary by or is [Cochran them Wilson, statute. v. public school opinion by J.] S. So W. Walker, strictly legal occupy same status necessary to

property and are as courthouses functioning’ the normal of the State Government. city, property it that while But is said county, cannot be execu sold on or pay special expressly stated it so taxes, is tion to unless implies judgment that a statute, in may the law had under which therefor, be sold, be or but must cannot seized be enforced deprive remedy, like not mandamus, some which will property necessary carry on. to enable it to argument, support In Heman of this Construction Co. there Co., Mo. cited. We Wabash Railroad subject right-of-way to held that railroad pro expressly under a section the statutes viding, that “all here, as does the statute improve district shall be express provision for etc. The ment of streets” collecting such suit forclose lien tax of the tax assessed. bills, We the lien of the tax not be bill could foreclosed while right-of-way, yet, upon the railroad “under the charter bill the tax sued lien and ordinances is a right-of-way company the defendant de not bill. scribed We do called feel determine how such can enforced, but probable necessary, will ac able, counsel if complish As result. rule ‘when there is a remedy’ right (citing cases) we there is this exception to that rule.” forms no But this think, case Henry holding not with the in conflict Clinton County, in that because states apply doctrine therein announced that the because their cemeteries, railroads “strictly public” property. OCTOBER TEEM, *10 School District. of Edina to use v. jurisdictions cited are from other

Numerous eases and property, public holding courthouses, school improvement special public property, is property” language within “all is that taxes, when the such the shall be so taxed, general, .by instead assessments will be inforced county, city special, judgment against of a the enforcing although provided for the district, statute against The cases the tax as a lien assessed. the Sargent & are collected in a note to Herrick & Stevens County Henry 132 Am. 291-307. finds Lahr, The support much in the authorities from other states pre- (page by referred to senting annotator as learned arguments” strongest “perhaps side for its controversy. ex- however, author, The learned presses weight (page 301) authori- that the ty against cases the doctrine that case the other taking the same view. long justified adherence

But we do not feel after the Henry Legislature of our courts to the doctrine of might County although overruling case in we cáse, have decided it more otherwise. should be Stare decisis honored in the observance than the breach under such circumstances. Drainage County,

In District v. Bates statute authorized a assessment for benefits to the con- roads the district, but provision collecting charge against tained no such county, although the assessments for in the district lands were to be collected the issue by special judgment to be land enforced and execu-

tion. held that under We statute the law imply give remedy an intention to suit for a judgment against county. But it will be observed that expressly in that case the law stated should charged with'the thus roads, benefits promulgated County Henry was within the rule recognized by County inus said Bates Case, 269 OP SUPREME COURT use v. School Edina to con County does case therefore Bates County Henry case. flict with the integral are an Holding, schools do, as we governmental exercising Government State strictly public property and their function, that this case hold we must counties, same that of Henry County based case and cases ruled following it. Legislature that case decision of passed since many law never met making but has times, liable for assess- *11 county property the in liable cities of made but has ment, 1919) the (Sec. and in of cities R. S. fourth class expressly (Laws p. coun- made has third class ty, city as- liable for such railroad and judgment general against provided for a and sessments provision been have also seen, therefor. As we has them against the counties benefits to made for assessments drainage instances districts. In all such in roads corporation particular public whose has been named the property subject such assessments. Such course of Legislature accepted legislation acted shows the and Henry County ruling and in accord- the expressly in when ance therewith so states its enactments subject public corporations purely their intends to and improvement property to taxation. must, We demurrer hold the of the in therefore, school district properly case sustained. County. real

II. As to the demurrer of Knox The county estate of a in cities the of fourth class is Section 8526, Revised Statutes made improving of streets the same bills as that duty county Section 8527 it the makes of the individuals. days’ improvement sixty court after notice of the county improvements served on clerk make such the pay By for same out of its fund. Section county 8528, if the court failed to do so, the could proceed to make such and issue tax bills OCTOBER TERM,

City of to use v. School District. Edina against claim” the be a valid cost “which thereof, shall county of out the shall the general fund. petition suits in this the same due form are in

individuals on such tax bills, they copied petition are and reeite in full the provisions of “were city issued accordance with allege petition ordinances.” But the does im- such notice of clerk was ever served provement provided by doWe said Section 8527. petition is necessary. special form of think required No this was out are set the tax bills statute and they things among full recite that therein, “in ordinances” were accordance with (Sec. city. “tax 8507) provides that . The statute prima-facie evidence therein, action regularity proceedings doing validity bill, of the assessment, charged furnishing for, of the materiáls work, charge liability stated petition in the bill.” sufficient to state hold the We judg- county for cause of action [Buchan 1. c. Broadwell, ment. therefore affirmed as below County,

School but reversed Knox Edina, District of as to *12 according law. Lind- remanded for trial say, concurs. C., opinion foregoing PER CURIAM.—The Small, adopted

C., in Division One is of Court Ragland Woodson, White, Banc. concur; JJ., Graves, except G. to what J., concurs, of Heman Con- said struction Railroad Co., Co. v. Wabash expressed adheres to his views Gilsonite Construction Co. Railroad c. Co., 656; 240 Mo. I. James T. Blair exempting ruling JJ., David from the Blair, E. dissent what concur in taxes, and concerning liability taxes; said of a for such Walker, J., absent.

305 Mo.—30.