PLATTE CITY BENEFIT ASSESSMENT SPECIAL ROAD DISTRICT v. J. W. COUCH, Appellant
Division One
July 3, 1928
8 S. W. (2d) 1003
The district was organized in February, 1920, under Laws 1913, pp. 677-695, now
Whenever such a petition is filed with the commissioners of the district they are required to have made a map of the district showing the road to be improved; also a profile of the road, plans and specifications for the improvement, and an estimate of the cost thereof. All these are to be submitted to “the state highway engineer” for approval, and when so approved, the road commissioners make a list of all the lands in the district and put a valuation thereon, showing on the list what lands lie within one-half mile, what
When matters have reached this stage the commissioners file the landowners’ petition, the map, profile, plans and specifications, estimate and land list with the clerk of the county court, who there-upon gives notice by publication that the court will on a day certain consider protests, objections and exceptions to the project. Persons owning land in the district within one-half mile of the road improvement may file written protests there against, and anyone interested in any land in the district may appear and show reason why the road improvement cannot be made by special assessment as proposed. This part of the procedure is covered by
If, on hearing and consideration of the objections and protests, the court finds that the owners of a majority of the acreage in the district within one-half mile of the improvement have protested, or if sufficient reason be shown why the improvement should not be made by special assessment, the court is required to dismiss the petition at the cost of the petitioners, first ascertained and adjudged. But if the court finds otherwise, then further hearings are held to consider objections or exceptions (if any) to the facts and valuations shown on the land list. Any necessary changes or corrections having been made in these, the list is approved by the court and a special assessment levied against all the land in the district for the cost of the improvement shown by the estimate, plus the petitioners’ expenses, including a reasonable attorney fee, plus probable future working, administrative and incidental expenses, plus ten per cent of the whole for emergencies. The county court also enters an order that the improvement be made in accordance with the plans and specifications. [See discussion of Section 10847, infra.]
The tax is apportioned on the basis of the valuations given in the land list, land in the first zone, or first half mile, being taken at one hundred per cent of the valuations there fixed; land in the second zone, or second half mile, at seventy-five per cent of the listed valuation; land in the third zone, or third half mile, at fifty per cent of that valuation; and land in the fourth zone - more than one and one-half miles from the road - at twenty-five per cent of that valuation. If, as in this case, the assessment is payable in one installment, the clerk of the county court then makes out a tax bill against each
If any such special tax bills remain unpaid for thirty days the commissioners may borrow money up to the aggregate amount thereof, but neither the road district nor the commissioners shall be obliged to repay said money borrowed except out of the collections on said delinquent tax bills. If arrearages continue for a year suit for foreclosure must be brought by the road district. All money collected on said tax bills, or borrowed in anticipation of the payment thereof, including interest, shall be used only:
“To pay the cost and expense incurred by the commissioners, as found by the court, in the preparation of such plans, specifications, estimate, map and profile, and said list of lands, and a reasonable attorney‘s fee, as found by the court, for such petitioners, and to pay the cost of improving said public road or part of a public road in accordance with the plans and specifications so filed with the clerk of the county court, and such working, administrative and incidental expenses, not otherwise provided for by law, as may be incurred in making such improvement and in procuring, collecting and paying the cost of such improvement, and the balance, if any, shall be used in paying expenses of maintaining such improvement; . . . .” (Italics ours.)
So much for the road district law. The facts are that the district was duly incorporated and that in conformity with the foregoing procedure a petition was filed in the office of the County Clerk of Platte County, apparently on March 15, 1921, for the improvement of the road between Platte City and Parkville, leading south-east from Platte City nearly seven miles to the “Elgin corner” and thence nearly south about seven miles to Parkville. On December 6, 1921, the county court fixed the total cost of the improvement at $39,452.08, ordered a special assessment in that sum against the land in the district, and ordered the improvement of the road in ac-
In the meantime the Centennial Road Law was passed on August 4, 1921. [Laws 1921 (1 Ex. Sess.) pp. 131, 145, 158.] By Section 29 thereof a state highway system of hard surfaced roads was established, to be constructed, maintained and paid for by the State. That section provided that the highway system in Platte County should go along the following route (in part): “Platte City, thence southeastwardly through Parkville, to the Platte-Clay County line, at the southeast corner of Platte County.” The designing and construction of these roads were placed in the hands of the State Highway Commission. The Highway Commission was also authorized and empowered to locate and construct 1500 miles of “high type” or primary road connecting the principal population centers of the State.
The State Highway Commission selected the Platte City-Parkville road as a part of the state highway system, designating that part thereof from the Elgin corner northwest into Platte City as a “higher type” or primary road, and that part from the Elgin corner south to Parkville as a secondary road. This was done under a private verbal arrangement with the road district commissioners, whereby the latter were to abandon the construction of the improvement and to turn over to the State Highway Commission the proceeds from the tax bills, to the amount of $38,352.08. To this was to be added about $22,500 of state money and the same amount of Federal-aid money, making a fund of over $93,000 available for the project.
Apparently this arrangement was made before the county court ordered the road improvement and levied the special assessment. It was before the tax bills were issued, at any rate, for the testimony for the road district, by one of its commissioners, was as follows:
“Well, when we issued our tax bills, why we issued them with the understanding that we was issuing them to raise money for the State Highway Board, to turn half of it over to the State Highway Board, our part, and they were to put half, and then with the Morgan and McCullough money, they was to do the work. That was the understanding when we issued our tax bills.
“That was an understanding between the commissioners and the State Highway Department and just known to the two. After the Morgan and McCullough money was spent the district and the Highway Department was each to pay one-half the cost of the road.”
So the road district abandoned construction of the improvement according to its own plans and specifications, let no contract, and on April 28, 1922, turned over to State Highway Commission $38,000, or thereabouts, of the money raised by the tax bills - all that was paid in
The entire road from the Elgin corner south to Parkville had been graded and bridged at the time of the trial below. From that corner north to Platte City about one-third the distance had been graded and bridged, and the contract let for grading the remaining distance. Up to that date, $20,742 of the road district‘s money had been spent on the north and south portions of the road. Mr. Menefee, construction auditor for the State Highway Commission, testified that only $29,940.70 of the road district money would be used on the project, and that the remainder of the $38,000 would be returned to the district.
Do the foregoing facts show a sufficient compliance with
The taxes were not taxes in the ordinary sense, but special benefit assessments. The title and text of the act so declare. And since it is a fundamental principle of our jurisprudence that a man‘s property shall not be taken without his consent except by due process of law, and such proceedings are in invitum, the general rule is that there must be a strict observance of the statutes enacted for that purpose. Heman Const. Co. v. Lyon, 277 Mo. 628, 636, 211 S. W. 68; 2 Elliott, Roads & Streets (4 Ed.) 664, 665, pp. 814-7; 4 Dillon, Municipal Corporations (5 Ed.) 1402, p. 2450; 1 Page & Jones, Taxation by Assessment, secs. 229, 234, pp. 356, 360. The harshness of the rule has been ameliorated some, especially with respect to drainage projects in view of their beneficent purposes (In re Big Lake Drainage Dist. v. Rolwing, 269 Mo. 161, 190 S. W. 261); and there is good reason for regarding road improvement districts with favor. But it is also true that no such public improve-
It is plain from the most casual reading of Article VIII, Chapter 98, that the proceedings there authorized contemplate from the beginning a specific road improvement. They are built around that. When the petition therefor is filed with the county court, plans and specifications, a profile and an estimate accompany it. The law does not allow the court to make changes. It holds a hearing and orders in or rejects the identical improvement as proposed. If the project is approved a benefit assessment is made, and the road commissioners then contract in writing with the lowest and best bidder for the construction of that improvement, not some other.
Now it stands conceded in this case that before the tax bills had been issued, and perhaps even before the improvement had been ordered by the court and the assessment made, the commissioners of the road district entered into a private, verbal arrangement with the State Highway Commission whereby the original project was cast aside and another improvement substituted. The purpose was commendable, and the parties are not subject to criticism, but from a legal standpoint the departure was so glaring that we cannot by any stretch of the imagination say the law was followed, or that the improvement agreed upon was substantially the same as that provided for in the prior proceedings, which are the foundation for the tax bills. Not only was the length of the road materially shortened, the course changed and the construction cost multiplied by two and one-half (nearly), but the road substituted was a state highway which the law says shall be built at the expense of the State; and we are asked to sustain tax bills issued to pay over a third of the cost of that road.
The appellant has cited a large number of cases in which special assessment paving tax bills were issued to contractors. In these a failure to install the paving improvement substantially in accordance with the municipal proceedings and contract was held to invalidate the tax bills. Respondent argues these cases are not in point because the law applicable to the case at bar contemplates the tax bills shall be issued before the improvement is constructed. We are prepared to concede there is a difference. When the statute so provides, special tax bills may be issued and collected before the completion, or even the commencement of the improvement, but that does not help respondent any. In such instances the law presumes the authorities will do their duty and build the improvement later, in due course (Heman Const. Co. v. Lyon, supra, 277 Mo. l. c. 641; McGhee v. Walsh, 249 Mo. 266, 285, 155 S. W. 445); but in this case we have an admis-
On the other hand, respondent cites a number of cases in which the credit of a municipality had been pledged, or securities negotiable in nature issued to pay for improvements built by special assessment - cases like Rose v. Springfield Road Dist., 275 Mo. 590, 205 S. W. 54, State ex rel. Carter v. Hamilton, 94 Mo. 544, 550, 7 S. W. 583, and H. & St. J. Rd. Co. v. Marion County, 36 Mo. 294, 306. Attention is then called to the fact that the appellant‘s answer pleads the respondent is not the owner of the bills sued on or the real party in interest, and it is argued this should be taken as an admission that the bills have been sold, bringing the case within the foregoing authorities. This contention cannot be upheld. The respondent sues on the bills as owner, and there was no contrary evidence or theory at the trial, so far as the record shows. The statutes do not provide for the sale or hypothecation of such tax bills. They are required to be deposited with the county treasurer as soon as issued and remain in his custody. Payments thereon are made to him. The statute expressly requires that suit thereon be brought by the road district as plaintiff. It is true the act authorizes the commissioners to borrow money not exceeding the aggregate amount of the delinquent bills, and provides the same shall be repaid only from collections on these bills; but it is plain the lenders do not in any sense become the owners of the tax bills. If it were otherwise they could hardly claim to be “holders in due course,” because tax bills are not negotiable instruments. Richter v. Merrill, 84 Mo. App. 150; Barber Asphalt Co. v. Ridge, 169 Mo. 376, 383, 68 S. W. 1043; 2 Page & Jones, Taxation by Assessment, sec. 1133, p. 1828.
From the facts and legal conclusions above set out we are well convinced that the tax bills sued on cannot be sustained under the special road district benefit assessment law, Article VIII, Chapter 98, supra. Respondent urges against this certain further general considerations, such as that the road district has, or will have when the project is completed, a better improvement than they bargained for, and that it has cost them no more - less, even - than if they had built the road according to their own plans and specifications. This is true, but there is another side to it. The road they have is one they would have had for nothing, had the State Highway Commission seen fit to locate it there independent of the arrangement made with the road district commissioners. In other words, the landowners are specially assessed to pay part of the cost of a state highway. Can that be done under the Centennial Road Law, and if so, was the law followed in this case?
It would unduly extend the opinion to discuss these provisions separately or in detail.
To save misunderstanding it may be well to add that the conclusions reached bear only on the right of the district to recover on the unpaid tax bills in suit, and that they have no reference to the right of the district to retain money collected on tax bills which were paid. That is a question governed by different principles.
The judgment is reversed. Lindsay and Seddon, CC., concur.
PER CURIAM: - The foregoing opinion by ELLISON, C., is adopted as the opinion of the court. All of the judges concur.