50 Mo. 525 | Mo. | 1872
delivered the opinion of the court.
In a suit to collect certain bills for macadamizing a section of Frederick avenue, in St. Joseph, the plaintiff recovered a general judgment against the defendant, with an order of special execution against the several lots adjoining the improvement according to the engineer’s assessment against them, and with the further, order that if the lots shall not sell for sufficient to pay the amount of the judgment, a general execution shall issue against defendant’s other property. This judgment is alleged to be erroneous, and for the reason, that in assessing a special tax upon city lots for local improvements the tax is a charge upon the lots merely, and a judgment for its amount cannot be enforced by a personal execution.
The proceeding was instituted under section 5 of an act to amend the charter of St. Joseph, passed February 8, 1865 (Sess. Acts 1865, p. 485), which 'provides that when the work is completed the engineer shall assess the cost as a special tax against the adjoining property fronting upon the work done, each lot to be charged in proportion to the frontage, etc., and shall make out a certified bill against each lot, in the name of the owner, to be ££ delivered to the contractor for the work,” who shall proceed to collect the same by ordinary process of law in his or her name, etc., and each certified bill shall be a lien against the lot of ground described therein.
The plaintiff bases his right to a general judgment and execution upon the express authority given him as contractor to collect the certified bills by ordinary process of law in his own name, and were this an ordinary indebtedness the deduction would be a sound one; but in construing a statute reference must be had to its object, and it will not be presumed that the Legislature intended’ to authorize a proceeding unreasonable in itself j unless the intention is indicated in express terms.
There is a broad distinction, and one of universal recognition, between the foundation upon which is based the right of general taxation for governmental purposes and that which supports the rights of local assessments.. .The authority to impose either is
All taxation is supposed to be for the benefit of the person taxed. That for raising a general revenue is imposed primarily for his protection as a member of society, both in his person and his property in general, and hence the amount assessed is against him, to be charged upon his property, and may be collected of him personally. But, on the other hand, local taxes for local improvements are merely assessments upon the property benefited by such improvements, and to pay for the benefits which they are supposed to confer; the lots are increased in value, or better adapted to the uses of town lots, by the improvement. Upon no other ground will such partial taxation for a moment stand. Other property held by the owner is affected by this improvement precisely and only as is the property of all other members of the community, and there is no reason why it should be made to contribute,that does not equally apply to that of all others.
The sole object, then, of a local tax being to benefit local property, it should be a charge upon that property only, and not a general one upon the owner. The latter, indeed, is not what is understood by a local or special assessment, but the very term would confine it to the property in the locality; for, if the owner be personally liable, it is not only a local assessment, but also a general one as against the owner. The reasonableness of this restriction will appear when we reflect that there is no call for a general execution until the property charged is exhausted. If that is all sold to pay the assessment, leaving a balance to be collected otherwise, we should have the legal anomaly — the monstrous injustice— of not only wholly absorbing the property supposed to be benefited and rendered more valuable by the improvement, but also of entailing upon the owner the loss of his other property. We cannot, therefore, approve the interpretation given below to the statute. The term “ ordinary process of law” cannot mean ordinary personal judgment and execution, but such process as is adapted to enforce a lien or specific charge upon the property specially assessed. A contrary view, in construing a similar statute, is held in The City of St. Louis v. Clemens, 36 Mo. 467;
The record also shows an error in the amount of the work charged the defendant, in this: that he is charged with work as beginning in the center of Eighth street. The recorded map, which evidences the dedication of the street, shows that Felix and Eighth streets cross at right angles, and that Frederick avenue commences upon Felix and runs northeast diagonally through block 22, which contains the lots assessed; the northerly line of the avenue commencing at the point of intersection of Felix and Eighth, and the southerly line further east on Felix. The custom, then, of apportioning the macadamizing at street-crossings cannot affect the defendant in this case, so far as Eighth street is •concerned, for Frederick avenue does not touch it, but ends upon Felix street before it is reached. Where there is a street-crossing, the space of intersection belongs to both streets, and the work should be apportioned accordingly; and perhaps where one street commences upon another, the street so commencing should bear a proportion of the charge of improving the street from which ip runs; as from a point in the center of the latter street, which would be in the center of the former if it in fact crossed, thence running lines to the beginning of each line of the former street, and including the work so embraced; or some other just rule might be adopted. But in the present case Frederick avenue does not touch Eighth street, and no part of the improvement upon 'the latter can be included in estimates for work upon the avenue. And further, Mr. Kiley had the contract for macadamizing.Eighth street, and was, I suppose, paid for it. The proper
The objection to showing that the frontage of the lots as actually measured differed from that noted upon the recorded plat, is not well taken, and the claim that the latter alone should govern the estimates, is unsound. The recorded map is evidence of course and distance, as would be the calls in a conveyance; but, like the latter, must yield to actual measurements and to the actual location of the lines.
It should be remarked that in making local assessments for work of this kind, the requirement of the statute that “ each lot shall be charged in proportion- to the frontage thereof,” does not contemplate that the work in front of each lot shall be necessarily charged to that lot; but the amount of the whole work shall be ascertained, and each lot shall be charged in the proportion that its frontage bears to that of all the lots. (The City of St. Louis v. Clemens, 49 Mo. 552; Cooley on Const. Lim. 507-8.)
The judgment will be reversed and the cause remanded.