112 Mo. 610 | Mo. | 1892
Lead Opinion
This is an action to enjoin the collection of certain several assessments for benefits to the property of plaintiffs, in the matter of the opening of Kosciusko street in said city.
The plaintiffs in their petition, after reciting the proceedings for the condemnation of property for the purpose of showing the amount of damages, and to whom awarded, the amounts severally assessed against the property of plaintiffs for benefits, and the issuance of special tax bills against the property of each of them for the amounts so assessed, allege for their cause of action that the condemnation proceeding was unlawful “for the reason that said part of Kosciusko street had, long prior to the filing of said petition, been dedicated by the owners of said property to said city, and by the said city appropriated and used as a public street for more than thirty years last past, with the consent of all the persons who formerly owned the property so
A general demurrer to the petition was sustained by the court below, and from the judgment' entered thereon the plaintiffs appeal.
The charter provisions and ordinances under which the benefits were assessed against the property of the plaintiffs in this case came under the consideration of this court in the recent case of City of St. Louis v. Ranken, 96 Mo. 497, and we there held that, when a tax for benefits is to be assessed under those provisions and ordinances, the owner has the right to be heard
The plaintiffs set out in their petition facts which if they had been presented to the court in the proper manner, and in time during the pendency of the condemnation proceeding in the circuit court would have precluded the assessment of any benefits against their property. The proceedings of that court are matters of record. It is essential to a valid assessment that the record of the court show that the plaintiffs were duly notified in the manner provided in the ordinances, or voluntarily appeared to the proceeding; if it is not so shown, the assessment is void, and there can be no recovery upon the tax bill. In the suits which they complain the city is about to institute for the collection of such tax bills they have a full, complete and adequate defense of record, without any necessity for resort to extrinsic evidence to make it good, or for invoking the assistance of the powers of a court of equity. Each of the plaintiffs, if the fact of want of notice to him be true, has this defense, complete and independent, for himself; it is neither strengthened nor weakened by that of either or all of his other coplaintiffs, or any number' of them, and they have no interest in common to be protected by it; each can
The judgment is affirmed.
Dissenting Opinion
(dissenting). — I. I am of the opinion that the petition states facts sufficient to constitute a cause of action. I understand the rule to be that, where one general right is claimed, a bill in equity will not be deemed multifarious, though all are joined therein who demand equitable relief against some threatened injury to, or interference with, that common right. This rule has been often applied or recognized in this state as to ordinary taxation, where one taxpayer on behalf of himself and of others similarly situ
This interference is based upon the doctrine of preventing a multiplicity of suits, and this foundation gives jurisdiction regardless of whether each separate land-owner has some hind of legal remedy of his own which he may offer in resistance of the tax. 1 Pomeroy on Equity Jurisprudence, sec. 260; Cooley on Taxation, 761.
The same doctrine that is applied to general taxes is also applied to special assessments, and clearly the same cogent reason would apply to the latter case as well as to the former; and so are the authorities. 1 Pomeroy on Equity Jurisprudence, sec. 260, and cases cited.
No doctrine is more firmly rooted in equity jurisprudence than that one plaintiff, for himself and others similarly situated, may file a bill based upon a general right and seeking equitable relief, and that such bill is not demurrable, although the defendants have separate and distinct defenses. Parish v. Sloan, 3 Ired. Eq. 607; Brinkerhoff v. Brown, 6 Johns. Ch. 139. To the same effect see Bobb v. Bobb, 76 Mo. 419, and cases cited. In Ward v. The Duke, 2 Anst. 469, it was ruled that unconnected parties might be joined in one suit, “where there is one common interest among them all, centering in the point in issue in the cause.”
II. But it is said that the allegation of lack of notice on the part of plaintiffs as to the condemnation proceedings is insufficient, because it is too general. How it could be more specific it is difficult to see. If they had no notice, it appears to me that is the end of the matter. What matters it if one plaintiff was entitled to be personally served under
This common right, to ask injunctive relief, is not based at all upon the various methods by which the parties plaintiff might have been brought into • court, but upon the common right which each one possessed to be relieved against unjust taxation; taxation without notice, which cast a cloud upon each of their respective titles, that is the only basis and sole foundation of their right to come into a court of equity, and does not rest upon the fact that they were required to be notified by different methods, which methods, various howsoever, were never pu/rsued. To me it sounds passing strange that parties plaintiff claiming a common right, and claiming that they had received no notice whatever in proceedings had against them, in order to make their pleading good, would have to go further and to specify with scrupulous care how or in what way each one of them was not served with notice.
III. But granting that I am wrong in this; granting that the bill should have been more specific, is it, therefore, obnoxious to an attack made upon it by a general demurrer? I hold not. I understand that a petition is impregnable to such an attack, unless after judgment that judgment would have been arrested because the petition did not state facts, etc., something of which advantage could be taken even in an appellate court.
At the worst, the petition contains a defective statement of a cause of action, and not a statement of a defective cause of action. Under our code, general averments in a pleading, as we have here, cannot be
Touching the point in hand, Judge Bliss observes: “It should be borne in mind — and this will help to-reconcile conflicting decisions and dicta — that a pleading may be so uncertain and indefinite as to be subject-to correction on motion, and still be good on demurrer. The usual ground upon which the demurrer is based is-that it does not state facts sufficient to constitute a. cause of action, or defense, as the case may be; and, in passing upon the demurrer, the court will only inquire whether it can gather from the pleading the-requisite facts, however loosely or defectively stated. To be subject to demurrer, it ‘must present defects so-substantial in their nature, and so fatal in their character, as to authorize the court to say — taking all the-facts to be admitted — that they furnish no cause of' action whatever.’ The objection, then, to the pleading an account of this uncertainty and indefiniteness is said to be waived by demurrer, that is, it cannot be raised by a demurrer.” Bliss on Code Pleading [2 Ed.] sec. 425a. It is scarcely necessary to add that these views-of the learned author are sustained by a great array of' authorities from the code sí os, as shown by the accompanying note to the section quoted.
In conclusion, then, I hold the petition is well enough on the ground that it seeks relief to prevent the invasion of a right common to all the plaintiffs; that it-seeks to avoid a multiplicity of suits; and that its alie
SEPARATE OPINION.
Mr. Pomeroy, in speaking of these suits by lot-owners to be relieved from local assessments, and by taxpayers.to be relieved from general assessments, says there is no pretense of any common property or other common right among the plaintiffs as individuals, or between them as a body, and the defendant. He then says: “The only community among them is in the question at issue to be decided by the court; in the mere external fact that all their remedial.rights arose at the same time, from the same wrongful act, are of the same kind, involve similar questions of fact, and depend upon the same questions of law.” 1 Pomeroy on Equity Jurisprudence [2 Ed.] sec. 260. Such a community of interest in the questions to be decided is now generally held to be. sufficient to call for the exercise of equitable jurisdiction to prevent a multiplicity of suits in this class of cases, and to this doctrine we agree.
We then come to these questions: First, whether' the facts stated in the petition, the demurrer admitting them to be true, defeat the collection of the tax bills; second, whether these facts present the same questions of law as to all of the plaintiffs.
The facts alleged are that Kosciusko street was a public highway when and long before the suit to condemn was commenced; that the property proposed to be taken had been before dedicated by the owners thereof to the city for a street; and for these reasons the persons to whom the commissioners assessed damages were not entitled to any damages. It is also.
Under this state of facts it is manifest that the plaintiffs should not be assessed with benefits to pay the assessed damages. The property-owners, having dedicated their land to the city for street purposes, were not entitled to any damages. But the question then arises, where should this issue be tried ? Can it be tried in a suit like this, or should it have been tried in the proceedings to condemn the property? It was held in City of St. Louis v. Ranken, 96 Mo. 497, that the questions whether the property assessed with benefits was in fact benefited by the improvement, and if benefited to what amount, could not be raised or tried in a suit to enforce the tax bills. Such questions were determined and forever set at rest by the judgment on the commissioners' report in the proceedings to condemn. That case was followed in City of St. Louis v. Excelsior Brewing Co., 96 Mo. 677. So the question whether the city had before acquired the property sought to be condemned was one which could and should have been tried in the proceedings to condemn. It would not be open for consideration in suits to enforce the tax bills, nor is it open for consideration in this case. Thus far there is no cause of action stated in the petition.
If the petition states any cause of action it is in the general averment that “the plaintiffs were not parties to the condemnation proceedings, had no notice thereof, and were, therefore, unable to prevent or protest against the wrongful acts committed in said proceedings.77 It is to be observed that the petition sets out at length the facts, to the general effect, that the property condemned had been before dedicated to public use for a street, and then follows this general
Rehearing
IN BANC. ON REHEARING.
On reargument in banc the conclusion reached in the foregoing opinion heretofore handed down in division number 1, that the judgment of the circuit court be affirmed,