226 S.W. 27 | Mo. | 1920
The pleadings in this case are a petition, filed February 23, 1918, and an answer, and both parties having moved for judgment on them, the defendant prevailed.
The defendant is the owner of two parcels of land, being the west fifty-two feet of the south sixteen feet of Lot Thirteen and the west fifty-two feet of Lot Fourteen in Coffman's Addition to Kansas City. Those parcels lie in what is denominated in the petition the West Park District in Kansas City.
On April 3, 1899, the Board of Park Commissioners of said city adopted a resolution by which certain of the lands in the West Park District were designated to be constituted into a public park called "West Terrace," as provided in Article X of the charter of Kansas City which was then in force. Pursuant to the recommendation of the Board of Park Commissioners, the Common Council of Kansas City, by an ordinance numbered 11430, approved April 5, 1899, provided for the condemnation for park purposes of the lands which the Board of Park Commissioners had designated to compose West Terrace Park, and provided further that the property so condemned should be paid for by special assessments upon real estate; that all private property in the West Park District should be deemed benefited by the improvements therein proposed, and should be assessed and charged to pay for the improvements; that the assessments should be made payable in twenty equal annual *261 installments in accordance with the charter, with other provisions not necessary to state regarding the rate of interest the installments should bear, depending upon when they were paid. Those provisions of the said ordinance number 11430 were in accordance with the recommendations of the Board of Park Commissioners and with Sections 7 and 21 of Article X of the charter.
On June 3, 1899, the Board of Park Commissioners caused a certified copy of the ordinance to be filed in the office of the clerk of the Circuit Court of Jackson County, at Kansas City, and said court, by an order duly entered of record, appointed a day and place to impanel a jury to ascertain the compensation for the property to be taken or damaged for said improvements, and to make assessments to pay therefor.
Notice was given to all the owners of property in the West Park District, including the defendant Field, and subsequently a jury was impaneled and a trial had to ascertain the damages to be paid and benefits to be assessed on account of the improvements. The result of the trial was that a verdict was rendered in which benefit to the amount of $92.83 was assessed against the above described lots of the defendant, and the court thereupon adjudged that Kansas City recover in twenty equal annual installments the amount assessed against said property in the verdict. The first installment became due May 31, 1901, and the successive installments on the 31st day of each succeeding May until all were paid, together with interest at designated rates according to the times when the installments were paid, unless they were all paid within sixty days from June 19, 1900, the date of the judgment, in which event they would draw no interest.
The court further adjudged that the several parcels of land assessed to pay for the improvements, including defendant's parcels should be charged with a lien for the installments and the interest which might accrue on them, and that the collection of the installments might be enforced by a special execution against the lots assessed, *262 upon the filing of a statement by the City Treasurer of Kansas City with the clerk of the Board of Park Commissioners, showing what assessments remained unpaid and against what lots.
The petition further recites that several appeals were taken from the judgment to the Supreme Court, but were all dismissed by the Supreme Court on June 30, 1903, and the judgment of the circuit court affirmed, and that on the 13th day of July, 1903, the mandate of the Supreme Court dismissing the said appeals and affirming the judgment was filed in the Circuit Court of Jackson County, Missouri.
The first installment of the assessment against defendant's lots fell due May 31, 1904, but was not paid within three months thereafter, and according to the judgment of the circuit court all the unpaid installments and interest thereon at the rate of fifteen per cent per annum from May 31, 1904, became collectible. Neither were any of the other installments paid. By the charter of Kansas City the assessment for benefit accruing to the lots from the new park became a lien on the lots from April 5, 1899, as the petition avers, with a further averment that the same, with interest, is still a lien.
No special execution was issued to enforce the collection of the installments within ten years after the judgment was affirmed by this court on June 30, 1903. The petition says no such execution can now be issued and that the charter of Kansas City provides no special method of enforcing the lien. Wherefore it is said that plaintiffs have no adequate remedy at law, or any remedy, except this proceeding in equity to enforce the lien.
The interest of the Travelers Insurance Company, which is one of the plaintiffs in the case, is derived, according to the petition, from the following facts: On September 12, 1903, the City Treasurer of Kansas City issued park-fund certificates for the total amount of the assessments shown in the aforesaid verdict of the jury, as it was provided in the charter of the city might be *263 done, and thereafter said certificates were sold to the Travelers Insurance Company, which is the owner and holder of them.
The prayer is for a judgment against the defendant for said sum of $92.83, together with interest at certain rates, that the said judgment be declared to be a lien on the aforesaid lots of defendant, and that they be sold to pay the judgment, and for other proper relief. Such, in substance, is the petition.
The answer denied the allegation that the assessment against the said lots was a lien on them, or that they were bound for the payment of said assessment when the petition was filed.
As the basis of this defense the answer says this court on March 16, 1917, in a proceeding in which all parties to this present suit were parties, determined that the alleged judgment sued on in the present case was null and void and was presumed to be paid and satisfied under Section 1912, Revised Statutes 1909; that this court ordered the Jackson County Circuit Court to sustain the motion of the defendant to quash the execution which had been issued by said court on July 12, 1913, on said judgment, and that pursuant thereto said circuit court on April 16, 1917, made and entered its final order and judgment in said cause, sustaining the motion and quashing the execution.
Besides that defense, the answer avers the plaintiffs did not commence this suit or any civil action on the alleged assessment, or any installment thereof, within either five or ten years after the cause of action accrued; that the judgment was not revived, or any execution, issued thereon, or any payment made thereon at any time within ten years after its rendition.
Furthermore that the defendant, for more than ten years after the commencement of this suit, had been in the actual, continuous, exclusive and adverse possession of the lots, claiming to own the same as against all persons, and as against the lien and claim of the alleged assessment *264 and judgment sued on, and had paid all the taxes, state, county and municpial, on the lots during said period.
Further that if the plaintiffs, or either of them, ever had any cause of action in equity against the defendant, they had lost their right of action by laches, because of the fact that the cause of action, if any there was, accrued more than thirteen years before this suit was commenced, and during said time the alleged judgment bore interest at the unconscionable rate of fifteen per cent per annum.
The court overruled the motion of plaintiffs for judgment on the pleadings, the substance of which we have stated, and sustained that of the defendant. The plaintiff took this appeal.
Parts of the Charter of Kansas City, of 1898, are relevant to the appeal and we epitomize them in this statement of the case.
Said charter provided that parks, etc., might be paid for by special assessments on the real estate situated in the park district and benefited by the improvements, and that the special assessments might be made payable at such time or times as the Common Council should provide by ordinance upon the recommendation of the Board of Park Commissioners; further that the Common Council should by ordinance describe the property to be purchased, taken or damaged in the course of improvement, and designate the time and mode of payment of the special assessments against benefited property, and that the proceedings for the taking and damaging of such private property for public use, and the assessment of benefits, should be heard and determined by the Circuit Court of Jackson County.
The court procedure was prescribed; among other things that the court should appoint a day and place to impanel a jury to ascertain the compensation for the property purchased, taken or damaged, and to make assessments to pay the compensation; also for notice to property owners to be affected. *265
The verdict was required to show the amount of benefit assessed against each piece of private property found benefited within the district. The jury could not be discharged until its verdict had been reviewed by the court and found to be correct in form and not to need the correction of errors.
The court within four days after the verdict was returned could set it aside for good cause, and impanel a new jury to make another assessment. A further provision was that, unless set aside, the verdict was to "be confirmed and judgment entered thereon that the city have and hold the property sought to be taken upon payment of the compensation assessed therefor, for the purpose specified in the ordinance providing for said improvement, and that the city pay the benefits assessed against said city, that the city recover the respective amount assessed against the private property, and that the several lots and parcels of private property so assessed to pay compensation by the verdict, stand severally charged and be bound for the payment of the respective assessments and the interest that may accrue thereon; and if said assessments are, by the ordinance aforesaid, made payable in more than one installment, the judgment shall so recite. Such judgment shall be by the clerk docketed and indexed in the books used for that purpose. And if such assessment, or any portion thereof, against any tract or parcel assessed, or any portion thereof, be not paid and discharged when the same becomes due or collectible, and shall be in default as hereinafter provided, the collection of the same may be enforced by special execution or executions against the lot, tract or parcel of land charged with the lien thereof; and such execution or executions shall issue upon the filing of a statement of the City Treasurer with the clerk of the court, showing what assessments are unpaid and collectible, and against what lots or parcels of land and the amount or amounts due and collectible thereon." Proceedings under the execution were to conform to the *266 proceedings on ordinary judgments foreclosing liens on lands as far as practicable, and recitals the executions should contain were stated.
After the verdict of the jury had been returned into court and confirmed, the clerk of the court was required to deliver a copy of it to the City Treasurer and another copy to the City Auditor, and the assessments for benefits against private property contained in the verdict became liens from the date of the taking effect of the ordinance in pursuance with which the assessments were made, and those attached to the several lots or parcels of land assessed with benefits.
The charter declared the lien should "continue against each lot or parcel assessed until the assessment against such lot or parcel shall have been paid in full, both principal and interest."
Regarding the distribution of the assessment over a period of years, the charter said this might be done by providing for payments in such number of annual installments as the Comon Council might determine; that the first installment be payable on the 31st day of May, following confirmation of the verdict by the circuit court, and the successive installments on the 31st day of each succeeding May, until all were paid; that installments might be paid without interest within sixty days after judgment or confirmation of the verdict; that if not so paid they should bear interest at the rate of seven per cent per annum from the date of said judgment until maturity; that the owner of the property assessed should have the privilege of paying the assessment in full, or any installment of it at any time by paying all the interest to a date six months after date of payment, etc. Further that all installments and interest on them not paid at maturity should bear interest at the rate of fifteen per cent per annum until paid; that if any installment, or the interest on any installment, was not paid at maturity and remained in default for three months after maturity, then all the unpaid *267 installments and interest should be collectible, together with interest thereon, at the rate of fifteen per cent per annum from the date of maturity of said interest in default; and special execution or executions might issue as aforesaid for the collection of all installments unpaid, and the costs of such collection. It was provided, however, that the owner or party interested might pay to the City Treasurer at any time before execution was issued against his land, the amount of the installment or installments in default, with interest thereon at the rate of fifteen per cent, in which case the installments not then due should not be affected by such default. [Those matters are to be found in the Charter of 1898, Sections 5 to 21, inclusive, Article X, pages 168 et seq.]
I. The purpose of this proceeding, which is in the nature of a suit in equity, was to enforce the lien of the assessment against defendant's lots for the park, on the theory that said lien still exists, and the question for decision is whether theTax Lien: equity jurisdiction of the circuit court could beEnforcement invoked for that purpose.in Equity.
The argument that it could be, runs in this way: That the charter of Kansas City provided the lien of the assessments should continue against the lots until the assessment against them had been paid or collected in full, both principal and interest (Charter 1898, p. 180, sec. 20); that this lien created by the verdict of the jury was independent of any lien that may have been incident to the judgment confirming the verdict; that the method prescribed in the charter for collecting the assessment by an execution issued upon the judgment, was not an exclusive mode of collecting the assessment, for the reason that the execution thus authorized was only in aid of the judgment and to make it effective and neither related to the lien created by the assessment laid against the lots by the verdict of the jury, nor was intended for the enforcement of that *268 lien; that no remedy was provided in the charter for the enforcement of the latter lien, and, therefore, inasmuch as courts of equity have a general jurisdiction to enforce liens, particularly where there is no adequate legal remedy, the equity jurisdiction could be invoked in the present case to enforce the lien of the assessment.
Without saying that no court has held equity has inherent jurisdiction to enforce against lands a lien for special or general taxes, when a mode of enforcement has been provided by statute, we say we have found no clear decision that it has, made in a case where the question was presented without circumstances that called for equitable relief according to the ordinary principles on which courts of chancery have cognizance of causes. Jurisdiction has been said occasionally to exist where a statute gave a lien without prescribing a remedy to enforce it, and this on the theory that the legislature intended the lien should be rendered effective by the procedure usually allowed to give effect to liens, whether the proper procedure be legal or equitable. [1 Cooley, Taxation (3 Ed.), p. 17.]
We will take the pains to review the decisions on the question that we have found, as we deem the case important enough to deserve this labor.
The courts of Tennessee have gone further than those of the other states toward holding liens for either general taxes or special assessments, may be enforced in equity. This procedure is a sequel to an early decision in Tennessee that a tax was a debt owed by the taxpayer, and as no special procedure had been provided to collect the debt it might be collected as any other could be; or, if there was a lien for it, the lien could be proceeded on as in the case of other liens. This doctrine runs back to Mayor v. McKee, 2 Yerger, 167, decided in 1826. That case was an action at law to recover the tax sued for as being a debt due to the town of Jonesboro. *269
Some of the suits in equity to collect taxes involved complications which made the legal remedy inadequate. [State v. Duncan, 3 Lea, 679; Webb v. Miller, 8 Heiskel, 448; Edgefield v. Brien, 3 Tenn. Ch. 673.] Others were supported by a statute making a lien for taxes "enforcible as other liens" by a suit in equity. [Nashville v. Cowan, 10 Lea, 209, 211; Chadwell v. Jones, 1 Tenn. Ch. 493.] If the Tennessee chancery courts give equitable relief in cases of liens for taxes concurrent with an adequate legal remedy, their rule is as much opposed to the one generally accepted as is the doctrine that a tax is a debt. [1 Cooley, Taxation, p. 17, et seq.]
In Grant v. Bartholomew,
Referring to the cases last cited, we observe that in McInerny v. Reed, what was said on the point in hand was a dictum, for the court held the plaintiff, who was the assignee of a tax bill, could not maintain a suit in equity upon it, even though the city which issued the bill could have done so. The intimation that the city could maintain such a suit was based on the fact that there was no mode provided in the charter to collect the special tax, although the charter conferred on the city power to collect it. The argument was that the power should not be treated as nugatory because the charter failed to prescribe a method of exercising it, and therefore resort could be had to equity, as in other instances where a right existed without a remedy at law to maintain it.
In Mayor v. Colgate, a statute authorized the collection of the assessment in like manner as if the lots subject to it were mortgaged to the city.
In a series of Illinois cases suits in equity to establish tax liens were sustained, because a statute authorized the foreclosure of the liens. [Gauen v. Drainage Dist.,
The courts are practically unanimous in holding that if a statutory method of collection is provided, especially if it is adequate and complete, equity is without jurisdiction.
Corbin v. Young,
In Louisville Trust Co. v. Muhlenburg County, 23 S.W. (Ky.) 674, it appeared the taxes levied to pay bonds a county had issued for shares of stock subscribed by the county in a railroad company were made a lien on the real estate of the taxpayers. The method to collect the tax prescribed in the act under which the *272 subscription was made, proved ineffectual because of the county court's refusal to appoint collectors, etc. Thereupon, the plaintiff, acting for itself and others, fixed a suit against the county and the tax payers to foreclose the lien. The court held this lien was similar to other tax liens and that there was no intention on the part of the Legislature "to afford any additional or extraordinary remedy for its enforcement," saying such liens could not be enforced in courts of equity.
In Greene County v. Murphy,
In McHenry v. Kidder County,
In Pierce County v. Merrill,
In Board of Education v. Old Dominion Co.,
The doctrine of the Federal courts, frequently declared by them, is that both the assessment and collection of taxes are legislative affairs and no function of a court of equity. The previous decisions of the Supreme Court of the United States on this question were reviewed in Thompson v. Allen County.,
In several cases passed upon by said Supreme Court and brought to collect municipal taxes, or those levied by county courts to pay interest on county obligations, the usual modes of collecting had failed, either because officials had been remiss or because the municipality *274 had passed out of existence. For such reasons the aid of equity was invoked, but it was ruled consistently that equity had no authority either to levy a tax or to collect it if it had been levied by the proper public officers.
In cases where this court has dealt with the question, it has adhered to the principle that a statutory remedy for the collection of a tax or a special assessment, whether it be by distress or by action, is an exclusive remedy.
In Alexander v. Helber,
Directly in point is City of Carondelet v. Picot,
The doctrine stated by all the text-writers on the subject is in accord with that declared by this court in the cited cases. [1 Cooley, Taxation (3 Ed.), p. 17; 2 Cooley, Taxation, pp. 879, 881.] In that text it is said the remedy by suit exists only by force of a statute and the statute must therefore be carefully followed. Another text says that where a statute has prescribed proceedings for the enforcement of taxes and the foreclosure of tax liens, the holder of such a lien cannot foreclose it as he would a mortgage in a court of equity, or otherwise than according to the statutory remedy. [21 Ency. Pl. Pr. 388.] Still another treatise says the lien of a tax warrant unpaid has sometimes been held ground for a proceeding in equity, but as a general rule the powers of a court of chancery cannot be invoked in such matters except on the ground of fraud, trust or some other well-recognized head of equity jurisdiction. [37 Cyc. 1242, and cases cited in Note 48.] In a work treating of special taxation, it is said a court of chancery cannot enforce the collection of that character of taxes unless authorized by statute to do so. [2 Page on Taxation by Assessment, sec. 1145, and cases cited in Note 2.]
While at first thought it may appear right for chancery to enforce tax liens, the notion vanishes when we remember that the subject is not within the original cognizance of equity, but pertains to the political branch of the government, and, therefore, according to all analogies, cannot fall within the equity jurisdiction — at least unless the tax is made a lien and no sufficient remedy is provided to make the lien efficacious.
As we have said above, a remedy was provided in the Kansas City charter for the collection of assessments *276 against the defendant's lots, and an effective one. Whether the judgment entered upon the verdict of the jury, making assessments for improvements, is a judgment in the full sense and with the ordinary incidents of one, we deem an immaterial question in the present case. Whatever may be the nature of the judgment and whether the lien inhered in the assessment itself as declared by the verdict, or in the judgment entered on the verdict, or in both, the lien was not enforcible until a judgment confirming the verdict had been rendered — was at most without vitality or value. But after judgment it became enforcible by an execution, not only for an installment in default, but for all installments thereafter to accrue, together with the interest on them. It is difficult to perceive why the charter should provide for a judgment and an execution on the judgment to collect the confirmed assessment if it was contemplated that, independently of the judgment, but not until it had been rendered, the assessment lien might be foreclosed by a decree in equity. If this course was in the mind of the Legislature, why provide for collecting the judgment by an execution containing full recitals of the proceeding instead of remitting the matter to equity? However, regardless of that consideration, the essential fact is that an adequate remedy was given by the charter, and nothing was said about an additional remedy by suit in equity.
Pursuant to the provisions of the charter an execution was issued for the entire amount of the assessment, and the only reason why it failed to prove effective, was that the city did not ask for it for more than ten years after judgment had been rendered in the circuit court and for more than ten years after it had been affirmed in this court. Such being the date of the execution, and there having been nothing paid on the judgment during the ten years, it was held in Kansas City v. Field,
II. It is insisted that as some of the installments had not yet matured when this suit was begun, by the very words of the charter the lien for them, at least, was still in force, because the lien was made to continue until the assessment was paid in full; that as the statutory remedy by executionUnmatured has been exhausted and has proved fruitless,Installments. equity can be looked to for help in collecting those installments. The argument for equitable relief for the unmatured installments is no stronger than it is for those in default when the execution issued. It was taken out to collect the total amount of the installments, accrued and to accrue. Nothing was collected because the period prescribed for issuing executions had expired, and there was a presumption the judgment had been paid — a conclusive presumption, the statute says. [R.S. 1909, sec. 2125.] Plaintiffs contend said presumption is raised only against the judgment and an execution on it, not against the lien of the assessment. Authorities are cited in connection with this proposition wherein courts held that in a conflict between a statute providing for the continuance of a lien for taxes over a stated period and the general Statute of Limitations, the special statute controls. [Skinner v. Christie, 29 A. 772; Lewis v. Rothchild, 28 P. 805; Wells County v. McHenry, 74 N.W. 241.] This was but an application of the general rule of construction that a statute relating to a special subject or remedy prevails, as regards that subject, over general laws, where the two differ in their provisions. [State v. Green,
The distinction is too refined that the statutory limitation, though good against the judgment and executions on it, leaves to the city the right to go into equity to assert the lien, which it might have made effective for the entire assessment by an execution had it availed itself of the remedy the charter gave. On a final analysis this view leads to the doctrine that although there is an adequate statutory remedy to collect an assessment against land, nevertheless equity will afford an additional remedy — a doctrine rejected in this and in nearly all jurisdictions — perhaps in all.
The judgment is affirmed. All concur.