100 Mo. 300 | Mo. | 1889
We will first consider the ruling of the trial court on the demurrer to the third defense, as what may be said on that branch of the case may, possibly, abbreviate the discussion on other points.
Looking at this defense from the most favorable standpoint, it is evident that it is untenable. The section of the constitution just quoted refers to, and is intended to regulate, the exercise of the right of eminent domain, whereas special assessments for local improvements, such as the tax bills before us, are referable to, and sustainable under the taxing power. This distinction is well recognized both here and elsewhere in the United States. Garrett v. St. Louis (1857), 25 Mo. 505; Lewis on Eminent Domain, sec. 5. If the taxing power has been called into play in the mode required by law for the purpose of paying for a local improvement, such as paving or grading a street, it is no defense to a bill issued therefor to say, as is said here, that the street, or the improvement, damaged and did not benefit the property, though, if such were the fact, the party injured might have his action (on a proper showing) under the constitution for such injury. Householder v. City of Kansas, 83 Mo. 488. If the city had invoked the power of eminent domain unlawfully in the premises, it could be held accountable therefor, but that would not interfere with the collection of the special tax bill for an improvement regularly made under the taxing power. The right of action which a person might thus have against the municipality would constitute no just defense to the claim of the contractor who had made the improvement and to whom, under the law in question here, the tax assessment is payable.
As in other applications of the taxing, power it is not always possible to establish a scheme of assessment which shall bear with absolute uniformity on all property subject to the tax. Much latitude of discretion in exercising that power belongs to the legislative department and the courts will not interfere with it unless there is some manifest abuse which is not claimed in this case.
The third defense in the answer is otherwise insufficient. It does not allege that defendant was the owner of the land when it "was damaged as claimed. In the absence of such an allegation no defense would exist even under defendant’s theory of the purport of the constitutional provision relied upon. We have recently held that such damages are a personal claim of the owner of the property at the time [of the injury, and that they do not run with the land. Hilton v. St. Louis, 99 Mo. 199. Hence, in any view taken of the answer, the ruling of the trial court on the demurrer to it was correct.
II. Defendant next contends that the tax bills could not be liens in any event unless the contractor had receipted for them as required by the city charter. There was no evidence that such receipt was, or was not, given. But plaintiff produced the tax bills in evidence, and the law required the city engineer to take such receipt from the contractor before delivering the bills. In the absence of any contrary showing, it would be presumed that the city engineer acted rightfully in the premises and that the receipt was, therefore, given.
Apart from that, the bills themselves are made prima facie evidence of the liability of the property to the charge stated in them. Sess. Acts, 1875, p.
III. The assignment of error next calling for notice is that based on the assumption that defendant is not the owner of the land against which these special taxes are a charge. If this be so, she cannot be prejudiced by any judgment in the cause for the reason that it can only be levied on the property described. But she evidently claims an interest in it and the city charter declares that “it shall be sufficient for the plaintiff to allege that the party or parties, made defendants, own or claim to own the land charged or some estate or interest therein as the case may be. Sess. Acts, 1875, p. 252. The legislative intent in that enactment is clear enough. It is to permit the tax bill to reach and hold such interest or estate as defendant may actually have, and to make a claim of title a sufficient basis to bring a party into court as a defendant. By a stipulation in the cause it was, furthermore, conceded that defendant was in possession of the property and, unexplained, possession is prima faeie evidence of title.
IY. The equitable defense set up in the answer seeks to obtain relief against the prosecution of this action, because of the pendency of an ejectment suit (for the land affected by the tax bills) between defendant and a corporation of which plaintiff is president and manager. This is obviously no defense in view of what has been already said in this opinion. Only such interest or estate as defendant actually owns can be charged with the lien of the bills and the pendency of an action to try the title affords no reason to stay the enforcement of a special tax suit against such interest or estate on the facts here disclosed, under the charter of Kansas City.
. Y. It is not necessary that each tax bill should show, on its face, as defendant claims, that every prerequisite step necessary to its validity has been taken.
All that need be said further on this point is that we regard the tax bills before us as complying with the law in so far as concerns any objection that has been called to our attention. No other assignments of error seem to require discussion.
