City of Sedalia v. Gallie

49 Mo. App. 392 | Mo. Ct. App. | 1892

Gill, J.

This suit is on a special tax bill based upon an alleged assessment of benefits against lots 8, 9, 10 and 11 in block 2 of the original plat of the city of Sedalia, for the opening and extending of Ohio street northward. The city by ordinance prescribed a district within which benefits might be assessed, and a jury of freeholders were appointed to assess damages and benefits. Sedalia is a city of the third class and the proceeding giving rise to the issue .of the tax bill in suit is claimed to be authorized by sections- 1514 and 1524, Revised Statutes, 1889, and certain ordinances claimed to be passed in pursuance thereof.

The evidence at the trial disclosed that the only notice given to this and other property-holders that a jury of freeholders had been appointed to assess benefits, and of the time and place when they would hear evidence and make the assessment, was by publication in a newspaper, and that the ordinance prescribed the giving of the notice by publication, and provided for no other notice. At the trial the assessment of the jury of freeholders read in evidence shows that they assessed lots 8, 9, 10, 11, block 2, the sum of $75, but makes no assessment against this defendant or any other person, nor was any owner named. The lots are not separately assessed, but the four were assessed ¡$75 in the aggregate without specifying the burden to be borne by each.

The defendant urges the following objections against the tax bill: “First. Because the defendant is not assessed, but that the lots in question are simply assessed as being benefited, without being assessed in the name of anyone as owner. Second. That the assessment of a gross amount against four lots, instead of fixing the amount on each lot separately, renders the assessment void. Third. That the notice should have been by personal service, instead of by publication.” The cause was tried before the court sitting as a jury, judgment was rendered for defendant, and the plaintiff city appealed.

I. Section 1514, Bevised Statutes, 1889, grants authority to cities of the third class (to which Sedalia belongs) to open, widen or extend streets, etc.; “provided that all damages sustained by the citizens of the city or the owners of property therein shall be ascertained as prescribed in section 1524,” etc. Turning then to said section 1524, provision is made for condemnation proceedings and for the appointment of five disinterested freeholders to make the assessment of damages and benefits and proceeds: ‘ ‘And, in determining the same, said jury of freeholders shall consider the benefits resulting to, as well as the damages sustained by, the owner of the property so taken; and said jury of freeholders shall, moreover, estimate the amount which other persons owning adjacent property within the limits hereinafter provided will be benefited •thereby, who shall contribute toward compensating the person injured, and such assessment shall constitute a lien in favor of the city on the said adjacent property, all of which shall be returned under their hands and seals; and the person or persons who shall be benefited and so assessed shall pay in such manner as shall be provided by general ordinance, and the residue, if any, shall be paid out of the city treasury. * * * And the owners of private property within such limits shall be notified of the appointment of said jury of freeholders.”

This statute clearly directs the naming of the land charged with benefits. When then the commissioners sought to charge defendant Grallie’s lots, the assessment should have been against him as owner. But the report here shows that no mention was made of the owner; the lots were assessed, but Gallie’s name as owner was entirely omitted. This, of itself, is sufficient to invalidate said assessment in so far as defendant’s lots are concerned. Abbott v. Lindenbower, 42 Mo. 162-167; Gaines v. Fender, 82 Mo. 507, 508; Taylor v. Donner, 31 Cal. 480; Whitney v. Thomas, 23 N. Y. 285-6. These proceedings are subject to a strict construction; every substantial requirement of the law must be complied with or the owner’s land cannot be .charged. 2 Desty on Taxation, 1241; Cooley on Taxation, 276. It matters not that personal judgment cannot be had against the owner for these local assessments ; the statute must be obeyed. If it is provided thereby that in making such assessment it shall be charged against one as the owner of the land, then no lien is created unless such provision is followed. Seibert v. Allen, 61 Mo. 488.

II. Again, this attempted charge on defendant’s lots must fail because the benefits were assessed against four parcels of property altogether in one gross sum. Clearly, these lots should have been separately assessed with the benefit chargeable to each. Fowler v. City of St. Joseph, 37 Mo. 227; City to use of McGrath v. Clemens, 49 Mo. 552.

Neither was such notice given to the defendant as' the statutes provides. Section 1524 reads: “The city authorities shall, before the appointment of said jury of freeholders, define by ordinance the limits within which private property is benefited by said change, etc., * * * and the owners of private property within such limits shall be notified of the appointment of said jury of freeholders.” Where the statute requires notice without prescribing the method of service, personal notice is intended. Ryan v. Kelly, 9 Mo. App. 396. This statute then, which is the organic and controlling law of Sedalia, demands personal service of notice on the owner whose land is to be assessed with benefits. The publication, therefore, in a newspaper did not fill the requirement of this statute, and, hence, was no notice at all. And so the ordinance of Sedalia providing for such notice by publication is clearly void as being. in conflict with the city charter. “The legislature may prescribe what the manner of the notice shall be; and when the statute so provides its terms must be complied with in order to a valid assessment.” City of St. Louis v. Rankin, 96 Mo. 506.

Judgment affirmed.

All concur.