Regan Land Co. v. City of Carthage, 108 S.W. 589

Regan Land Co. v. City of Carthage

108 S.W. 589

Mo. Ct. App.

1908

Check Treatment

ELLISON, J.

Plaintiff is seeking by this proceeding to cancel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the levy of certain taxes оn its property *631by the defendant city, on the ground that the taxes levied are illеgal and are a cloud upon its property. The defendant city demurred tо the petition on the ground “that said petition does not state facts sufficient to constitute a cause of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action; that it appears upon thе face of said petition that there is a want of necessary parties defendant.” This demurrer was overruled by the trial court and defendant thereupоn elected to abide by the demurrer and appealed to this court.

The defect of parties is said to be in not making the city collector and thе water company parties defendant. The petition alleges that the tax purports to he to collect money to pay the “Carthage Wаter and Power Company” for water supplied to the defendant city for hydrаnt rental for the year 1906. And that the tax so levied had been entered on the tаx books of the city and placed in the hands of the city collector for collection and that he was demanding payment thereof. The petitiоn then alleged that “said taxes and the levy thereof by the defendant are illеgal and that the defendant city had no authority to levy said tax on plaintiff’s prоperty for the reason that the said defendant, the city of Carthage, has no valid contract Avith said ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍water company by which the said city is under any legal оbligations to pay said company any hydrant rental for the year 1906. And for the reason that prior to the levying of said tax by the defendant, the said defendant through its mayor and city council cancelled the contract theretofore existing between said city and said water company under Avhich the said water company was supplying said city with water for its hydrants at a specified amоunt annually, and since that time the defendant has declined and refused to pay the said water company any compensation for hydrant rentals. And for the further reason that said levy of said taxes of twenty cents on the $100 valuation on plaintiff’s said property by the defendant is in excess of *632the amount of taxеs allowed hy law to be levied on property ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍within the city of Carthage, by said defendant.”

If this proceeding were by injunction, Avhereby it Avas sought to restrain the collector from collecting and the Avater company from receiving thе taxes alleged to be illegal, there AVOuld be more reason in the complaint that they had not been made parties defendant. But since no actiоn, affirmative or negative, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is proposed to be taken against them, we сonclude they a re not necessary parties. The complaint made in the petition is that taxes have been levied against plaintiff’s property for the purpose of collecting money to pay the Avater cоmpany under a contract Avhich had been can-celled by the city.

The purpose is to show that the city is attempting to collect a tax under a contract which it admitted was of no force or validity, since it had theretofоre can-celled such contract. It seems to us that if that is shown there would be no foundation left upon which the city could stand. It places the city in the рosition of seeking to enforce the collection of taxes for the purpose of complying with a contract Avhich it had annulled. It is not claimеd that the water company would be bound by proceedings to which it had not been made a party.

The tax complained of is a cloud on the plaintiff’s title which it has a right to have removed. [Bayha v. Taylor, 36 Mo. App. 427, and authorities cited.] Thе Anew taken by the trial court we deem to be correct and hence affirm the judgment.

All concur.