232 S.W. 1055 | Mo. Ct. App. | 1921
Lead Opinion
This is a suit upon three special tax bills issued by Kansas City. There was a trial by the court without the aid of a jury, resulting in a judgment for the full amount of each tax bill together with interest. The judgment further declared the tax bills a lien on the lots superior to defendants' title. Defendant, Johnson, has appealed. *264
In his answer defendant, Johnson, claims a superior title to the lien of tax bills. This claim is based on certificates of purchase and a tax deed issued by Kansas City for general taxes for the years 1910, 1911, 1912, 1913, 1914, 1915, 1916, 1917, 1918 and 1919. There is no claim of invalidity made against plaintiff's tax bills or said defendant's certificates of purchase or his tax deed. The only question in controversy is whether the lien of the city for taxes on real estate is subject to the lien of the holder of prior tax bills issued by the city in payment of local improvements. This question involves the construction of article 5, section 39, p. 239, Charter of Kansas City, 1909. This section provides for the execution of a deed by the City Treasurer in pursuance of the sale for delinquent taxes of land in the city; that, after the redemption period of five years has expired, on presentation by the holder of a certificate of purchase the City Treasurer shall execute "to the purchaser, his heirs or assigns, a deed of the real property described in such certificate of purchase, remaining unredeemed, . . . and deliver the same to the grantee, which deed shall vest in the grantee an absolute estate in fee simple in the real property described therein, and shall convey all the right, title and estate of the former owner or owners, free from any and all incumbrances of whatsoever kind or nature, subject, however, toall unpaid State, county and city taxes, general and specialtaxes or assessments which are a lien thereon." (Italics ours.)
A decision of this question rests upon the construction of the words "special taxes or assessments" as used in this section and article of the Charter. Ordinarily, the words, tax or taxes, do not include local assessments unless there be something in the language where the word is found to indicate such an intention. [8 Words and Phrases, pp. 6873, 6874.] It is held in this State that even the words "special taxes" do not include local assessments as those words are used in section 11, article 10, of the Constitution of this State. [Farrar v. City of St. Louis,
By the use of the word "assessments" in connection with the words "special taxes" the farmers of the charter must have meant something more than "taxes" as that word is usually construed to mean. In fact, it is clearly indicated in the charter that the words "special taxes or assessments" refer to tax bills. Article 8 of the charter deals with the making of public improvements and the payment therefor. Section 23, pp. 336, 337, of said article provides that all special tax bills issued under the charter and all benefit assessments arising out of condemnation and grading cases "shall be considered for the purpose of collecting or receiving payment thereof, as special taxes against any lot or parcel of land against which the same may be a lien." (Italics ours.) Section 1, of said article, provides for the issuing of"special tax bills" to evidence "special assessments" for public improvements. Section 3, of said article, in relation to the improvements specified in said section, provides that the Board of Public Works by resolution "shall state the nature of the improvement and when the same is to be paid for in whole or in part in special tax bills, the method of makingassessments to pay therefor;" that if the Board shall determine that the proposed improvement is not for the public interest to "be made *266 and paid for, either out of the general fund or by any method ofassessment, they shall make an order to that effect;" that "when the cost of the whole or any part of the improvement . . . is to be paid by special tax bills evidencing assessments against lands, such assessments shall be made, levied and assessed according to one of the methods in this article prescribed;" and "in making assessments for special tax bills to pay for grading or re-grading any street, sidewalk, avenue or public highway, or part thereof, the City Assessor shall . . . cause an assessment to be made of the value of all the lands to be charged, etc;" that "the costs of all grading, including the grading of sidewalks, shall be charged as a special tax on all lands;" that the Board of Public Works shall make out specialtax bills therefor and that "the cost of all work on any sidewalk . . . exclusive of the grading of the same, shall be charged as a special tax upon the adjoining lands according to the frontage thereof on the sidewalk;" (Italics ours) and shall be paid for by special tax bills.
Section 4, of said article, provides that the Board of Public Works shall at the time of accepting any improvement on the part of the city "make and levy an assessment against the tracts of land, exclusive of improvements, to be assessed to pay therefor, the aggregate of which assessments shall equal the amount of the cost of such work to be paid in special tax bills," Section 7, of said article provides that the Board of Public Works shall in the matter of constructing district sewers, "compute the whole cost thereof, and apportion and charge the same as a specialtax against the lots of land in the district . . . and shall . . . make out and certify in favor of the contractor or contractors to be paid, special tax bills for the amount of the specialtax against each lot or parcel of land in the district." (Italics ours.)
Section 12, of said article, provides that "all computations, apportionments, or assessments required by this article to be made by the Board of Public Works shall be held to be properly made when the same are approved *267 by said Board." Section 14, of said article, provides "that the Board of Public Works may construct or reconstruct the paying, sidewalks, guttering or curbing, or may maintain and repair the same, or may grade or regrade any portion of a street, avenue, alley or other public highway, within the city, without letting a contract for the same" and that "the cost of said work may be assessed according to the method provided in this article applicable to the class of improvement made, and theassessments therefor may be made payable as provided" in the charter when the work is done and completed; that the city "is authorized to cause the issue of special tax bills for such work in favor of Kansas City . . . and may authorize the City Comptroller to sell and assign such assessments of such specialtax bills." (Italics ours.)
Section 22, of said article, provides for the keeping by the City Treasurer of a special tax record showing the owners and the parties interested in the several tracts of land affected and charged with the "apportionment and assessment" whenever the cost of the work "is payable in special tax bills;" that the "City Treasurer shall, immediately upon the receipt of such apportionment, enter the assessments therein contained in appropriate books . . . showing the property assessed, the title and date of approval of the ordinance providing for the improvement for which such tax bills are issued." (Italics ours.)
Section 26, of said article, provides that whenever any land shall be assessed for special benefits to pay for any public improvement and the land shall be owned by a railroad corporation, "or any other public or quasi-public corporation, . . . such land shall be assessed and a special tax bill issued to evidence the same in the same manner as though the same were the property of a private person, and if the sale of such land to enforce such assessment is contrary to the public policy or the laws of this State, then the amount of such assessment as may be evidenced by the special tax bill shall be paid" by such corporation. (Italics ours.) *268
Section 27, of said article, provides where any tax bill issued shall be judged to be void for the reasons named in such section, the "Board of Public Works may, at any time within one year after the original issue of the tax bills, reassess any or all of the tracts of land subject to assessment to pay the cost of such improvement, according to the rule of assessment, and in the same manner and with the same effect and evidence the same by like tax bills as is provided in this article for suchassessments in the first instance." (Italics ours.)
Section 28, of said article, provides that when the grading or re-grading of any street or highway necessitates an expense of such magnitude as to impose a heavy burden on the land situated in the benefit district, the cost of such work "may be charged as a special tax on parcels of land . . . benefited thereby, after deducting the portion of the whole cost, if any, which the city may pay." And that after the final determination of the suit the city may enter into a contract with the successful bidder to whom the work may be let and when the work is completed an estimate of the cost thereof and an apportionment of the same against the various parcels of land within the benefit district shall be made by the Board of Public Works and the provisions of section 3 of said article relating "to the apportionment of specialassessments and the levy, issue and collection of special taxbills as in grading proceedings as in said section specified, shall apply to special tax bills issued pursuant to this section, except that said tax bills may be made payable in not to exceed ten annuals installments." (Italics ours.)
Section 33, of article 5, being the article under which defendant procured his title to the land upon which the tax bills were issued, contemplates that the purchaser of the land at the delinquent tax sale shall pay tax bills that had been issued against it, for it provides that the purchaser "may pay any special tax or assessment, tax bill, park tax, grading, condemnation or other special benefit levied against such tract by authority of this Charter." It also provides that the City Auditor shall *269 "endorse upon the certificate of purchase the amount of such . . . special tax or assessment, tax bill, park tax, grading, condemnation or other special benefit."
Section 34, of this article, regarding the right of redemption by the owner of the property, requires the owner to pay the City Treasurer "the amount for which such real property was sold, together with interest thereon at the rate per cent bid per annum from the date of purchase, together with all other taxes, assessments or benefits subsequently paid by the purchaser." If the purchaser at the delinquent tax sale acquired a title free from all liens of tax bills and assessments, there would be no necessity of his paying such tax bills and assessments.
The whole scheme and tenor of the charter is that the words "special taxes" and "assessments" as used in section 39, article 5, mean local benefit assessments and tax bills. We think that, construing the whole charter in regard to tax bills, the words "special taxes or assessments" refer to local improvement assessments or tax bills such as sued on in this case. [Boston Asylum v. Street Commissioners,
There is nothing in section 9, of article 7, of the Charter, which treats of court proceedings, to indicate otherwise. This section provides "that the several lots or parcels of private property, so assessed to pay compensation by the verdict or report, stand severally charged and be bound for the payment of the respective assessments," and "that the city recover the respective amounts assessed against private property." While the word "assessments" as used in this section does not refer to special tax bills, the wording of section 39, article 5, is, no doubt, broad enough to include such assessments. The same may be said of the "assessment" to be made for repairs of sidewalks, curbs and gutters as provided for in section 15, of article 8, and of section 17, of article 7, which provides that it "shall be the duty of the City *270 Treasurer to receive the benefit assessments on private property at any time after the conclusion of the proceedings before the issuance of execution." This has reference to proceedings in court. The provision of section 19, article 5, providing that "taxes upon real property are hereby declared a perpetual lien thereon against all persons" must be construed with section 39 of article 5, quoted supra.
The point is made that the making of a lien of tax bills a superior lien to that of the city for general taxes would be contrary to the general scheme of collecting and assessing land taxes as shown by the Constitution and Statutes of the State, and would be inoperative for that reason. Section 16, of article 9, of the Constitution, giving Kansas City power to enact its character, provides that such charter "shall always be in harmony with and subject to the Constitution and Laws of the State." A decision as to whether any provision or provisions of the charter are contrary to the general scheme of the State in relation to the same subject-matter involves the construction of said section of the Constitution and not an application thereof and, therefore, involves a constitutional question for the decision of which this court has no jurisdiction. [State ex rel. Smith v. Smith,
The judgment is affirmed. All concur.
Addendum
ON MOTION FOR REHEARING. The tax bills sought to be enforced herein were issued by Kansas City on December 28, 1915, being upon special assessments for local street improvements. Appellant Johnson's title is derived through two tax deeds, executed by the city to him on December 4, 1919, under two sales of the property for general city taxes, one sale being for the taxes of the *271 years 1910 to 1913 both inclusive, and the other for the taxes of 1914 to 1919 both inclusive, all of which Johnson paid as also the general taxes for the succeeding years. The suit to enforce the tax bills was filed June 24, 1920. The trial court enforced them as a first lien on the property thereby making the lien of the tax bills superior to the title of appellant Johnson. The question is whether Johnson's title, having been obtained from the lien for general city taxes, should be made subordinate to the lien of the tax bills for local street improvements?
The question turns upon the construction and effect to be given that clause in section 39, article 5 of the City Charter, relative to the tax deed to be executed to the purchaser at a sale for delinquent general city taxes which reads as follows:
"Which deed shall vest in the grantee an absolute estate in fee simple in the real property described therein, and shall convey all the right, title and estate of the former owner or owners, free from any and all incumbrances of whatsoever kind or nature,subject, however, to all unpaid State, county and city taxes,general and special taxes or assessments which are a lien thereon."
One of the contentions of appellant was that the foregoing clause does not refer to nor include special assessments for local street improvements, but has reference only to such taxes and assessments as are levied for special city public purposes, such as those for the establishment of City Parks, a City Market, City Hall, etc., all of which are for a special purpose, and therefore may be denominated special taxes or assessments, and yet they nevertheless partake so far of the nature and importance of general taxes, which are for the support of the city government, as that they could well be made and declared to be taxes of equal rank and validity as those for general city revenue purposes, but which is not accorded to special assessments for local street improvements.
Judge BLAND'S opinion, however, construes the above clause of the charter against such contention and holds that the clause does include the latter. Having thus construed *272 the said clause of the charter, the opinion then dismisses the question of the validity of said clause, namely, whether such clause conforms to the Constitution and Statutes of the State, by saying that such is a constitutional question which appellant did not raise in time.
Appellant complains of this and says that as the case was submitted on an agreed statement of facts, the question of whether the charter clause conformed to the Constitution and Statutes of the State was in the case from the start; that anyway it is not a question of the construction of the Constitution but of the city charter and whether it is to be made to conform to the State laws or not; and that the need for the invocation of the Constitution did not arise until the opinion above mentioned refused to go into the question on that ground.
There is no question but that appellant in this court attacks the validity as well as the meaning of the charter clause. But the case as pleaded in the petition was the ordinary proceeding to enforce the lien of the tax bills and the answer of appellant did not invoke the Constitution nor did he "put his finger" on any specific provision thereof claimed to have been violated and on which violation he relied for a defense. The agreed statement of facts, as we understand it, merely took the place of evidence in the case, and did not obviate the necessity of invoking the Constitution, if a constitutional question is involved in the appellant's contention that his title is superior to the lien of the tax bills. We have been cited to no case where an agreed statement of facts obviated the necessity of raising the constitutional question at the earliest possible moment.
In the absence of any statutory provision to the contrary, it is generally held that the lien for general taxes takes precedence over a lien for a special assessment. [Missouri, etc., Co. v. Burri,
In Excelsior Springs v. Henry,
In Dougherty v. Henarie,
In McCollum v. Uhl,
In Indianapolis v. City Bond Co.,
In Harrington v. Valley Savings Bank,
In Fitzgerald v. Sioux City,
In the case at bar, the only provision which authorizes the subjection of the title of the purchaser at a general tax sale to the lien of the special improvements, is the charter provision hereinabove quoted. But appellant contends that such provision in invalid; and he urges that the decision of the question whether it is invalid does not involve the decision of a constitutional question, but merely a construction of the charter and whether it conforms to the statutes and laws of the State as interpreted by the Supreme Court. The contention that the charter clause is invalid rests upon the following:
The statute gives the State a lien for all taxes, which shall continue and be enforced until they are fully paid or the land sold therefor. [Sec. 12757, R.S. 1919.] And under section 12964, Revised Statutes 1919, a lien is created on all real property for city taxes "the same as for State and county taxes." And section 12965, R.S. 1919, gives the city the same lien for its general taxes as the State has; and under section 19 of article 5 of the city charter, general city taxes upon real property are declared to be a perpetual lien thereon against all persons. The lien of the State for its taxes is paramount to all other liens, whether prior or subsequent. [Stafford v. Fizer,
As to the point that there was no constitutional question in the case until Judge BLAND'S opinion created that situation, and, therefore, appellant had no need to raise a constitutional question until the opinion did, we desire to say that the precedence of the lien of the tax bills over defendant's title was denied and attacked from the start, but no constitutional point was raised, as is required before it is properly in the case. The decision or conclusion reached under Judge BLAND'S opinion, was not based on a decision of such constitutional question. It was founded upon the wording of the charter, and its constitutionality not being properly raised, no such question was in the case. The decision is not like that referred to in the case of State ex rel. v. Smith,
It follows from what has been said that the motion for rehearing and also the motion to transfer should be overruled. And it is so ordered. The other judges concur. *277
