Kansas City ex rel. Drake v. Summerwell

58 Mo. App. 246 | Mo. Ct. App. | 1894

Smith, P. J.

This is a suit which was brought before a justice of the peace of Kaw township, in Jackson county, on a tax bill amounting to $1 issued under the charter of Kansas City of 1875, for the construction of a sewer. A judgment was rendered by the justice and a transcript of the same was filed in the office of the clerk of the circuit court and an execution was issued thereon.

The defendants filed a motion in the circuit court of said county to quash said execution for the reason that the justice of the peace had no jurisdiction to render the judgment on which the same issued. The motion was overruled and from the judgment of the court in overruling the same, defendants have appealed.

We shall not stop to inquire whether jurisdiction is conferred on the justice in a case where the amount of the tax bill is less than $300 under the provisions of section 4, article 8, and section 2 of article 9 of the charter of 1875, for the reason that it is impliedly conceded in the briefs and argument of counsel that the justice had no such jurisdiction under the provisions of that charter. A justice has no jurisdiction of an action to enforce a tax bill lien for the expense of a sewer under any general provision of the statute. Pleasant Hill v. Dasher, 25 S. W. Rep. 566.

The question which we are obliged to decide is whether section 18, article 9, of the charter of 1889, conferred the requisite jurisdiction on the justice. This section provides that, “when the amount due on any tax bill shall not exceed $250, suit may be brought thereon in the circuit court of Jackson county, or may be brought thereon before the police judge of the city, or before any justice of the peace of the city or of Kaw township in said county.” The defendant, however, contends that it does not confer jurisdiction because it refers only to tax bills issued by the board of public works and consequently that which is the basis of the judgment in this case is not of that class. This contention can not be upheld. In that part of the section conferring jurisdiction is to be found such expressions as, “In a suit on any special tax bill,” etc., “When the amount due ori any tax bill” etc., “Suit on special tax bills,” etc. It is obvious that the terms thus employed refer to no particular class of tax bills. They are general and include “any special tax bills” without regard to whether issued under the old charter or the new. The rule is that new jurisdiction and remedies are not to be extended by construction beyond- the fair import of the legislative grant. Nor are they to be unduly confined. Unless some established rule of law is palpably violated doubts as to jurisdiction may be solved in favor of the tribunal exercising it. Endlich, Interp. Stats., sec. 157.

But the defendant insists that section 10, article 17, of the present charter expressly provides that no change is made by that charter affecting the remedy given by that of 1875. This section reads as follows: “The repeal of any law by the provisions of this charter shall not in any wise be so construed as to affect any right or liability acquired or accrued thereunder, by or in the part of the city, or any person or-body corporate. And this charter shall not in any manner affect any right, lien or liability accrued, established, or subsisting under and by virtue of the previous charter or any amendment thereto; but such right, lien or. liability shallbe enforced, and such action or proceeding shall be carried on in all respects as if this charter had not taken effect; nor shall this charter be in any wise so construed as to affect the right or liability acquired or accrued under the previous charter and amendments thereto, or on the part of the city, or any person or body corporate.” It declares no more than that rights, liens and liabilities subsisting under the old charter shall not be affected by the new, and that no action or proceeding should be affected, but that the same shall be carried on in all respects as if the new charter had not taken effect. But actions and proceedings had after the new charter took effect were to be subject to its provisions as far as applicable. This is the rule in respect to the effect of the repeal of statutes. R. S. €598.

There is nothing in this charter provision that gives countenance to the contention that one having a right or lien existing under the old charter could not avail himself of the remedy that would be afforded him had that right or lien accrued under the new. There are no negative or preclusive words employed in the ■section just quoted, except as to existing actions or proceedings. Nor are there words implying an intent of the framers of the charter that remedies created by its provisions should not be invoked to enforce rights existing under the old charter.

The words “and such action” as they stand related to the other words of section 10 plainly imply that the •“rights, liens and liabilities” therein referred to are such as had accrued, become established or subsisted in actions or proceedings already begun before the taking effect of the charter of 1889. And the words “and such action or proceeding shall be carried on in all respects as if this charter had not taken effect” refer to and include only such actions or proceedings as had been commenced previous to the adoption of the new charter.

We feel fortified in this construction of the aforesaid section of the Kansas City charter, when we consider the general provisions of the statute relating to the form and manner in which cities of over one hundred thousand inhabitants may adopt charters of their own making. After indicating how such charters may be framed and adopted, section 1847, Revised Statutes, 1889, provides: “Such charter, in superseding any previous charter and amendments thereof, shall not affect any right, lien or liability accrued, established or subsisting previous to the time when such charter takes effect, nor affect any action or proceeding pending when such charter takes effect; but such right, lien or liability shall be enforced, and such action or proceeding shall be carried on, in all respects, as if such charter had not taken effect.” We italicize the portion of the above section which does not appear in the charter provision and which clearly indicates that it was only intended to save the old procedure in cases pending at the time the new charter may go into effect.

Our conclusion is that jurisdiction is expressly conferred on justices of the peace by section 18, article 9, of the charter of 1889, over the subject-matter of tax bills when the amount does not exceed $250, for the expenses of a sewer, which were issued under the charter of 1875; and that section 10 of article 17 of the new charter does not expressly or by necessary implication preclude the exercise of such jurisdiction in such actions as shall be commenced since the adoption of the latter charter. It was within the power of the city to change the remedy so long as it did not take away or impair any vested right nor impair the obligation of any contract. It had control over the remedies for the enforcement of the rights, liens and liabilities referred to. It could give a new and additional remedy for a right already in existence. Lovell v. Davis, 52 Mo. App. 342.

It results therefore that the ¡judgment of the circuit court must be affirmed.

All concur. '