84 Mo. App. 150 | Mo. Ct. App. | 1900
This action is to cancel a special tax bill said to have been issued under the charter of Kansas City. The judgment in the trial court was for plaintiff.
It is not denied, as an original proposition, that since the paving for which the tax bill was issued was not completed within the time limited by the ordinance, the tax bill would be void under the cases of McQuiddy v. Brannock, 70 Mo. App. 535; Trust Co. v. James, 77 Mo. App. 616, and the case of Neill v. Gates, 54 S. W. Rep. 460; s. c., 152 Mo. 585. But it is claimed that plaintiff is disabled, or estopped, from claiming the bill to be void. This claim is
“Suits may be brought to enforce the payment of such tax bills or any installment or installments thereof, with all interest thereon, in the manner herein provided for the bringing of suits on other tax bills; provided, however, that the owner or owners of any tract or parcel of real estate charged with the payment of such tax bills, or the owner or owners of any interest in such tract or parcel of real estate shall, within sixty days from date of issue of the tax bills, file with the board of public works a written statement of each and all objections which he or they may have to the validity of such tax bills, the doing of the work, the furnishing of the materials charged for, the sufficiency of the .work or materials therein used and any mistake or error in the amount thereof; and in any suit on any tax bill issued pursuant to this section, no objection or objections to it shall be pleaded or proved other than those that have been filed with the board of public works within the period aforesaid.”
It is conceded that plaintiff did not make the objection here presented within the time limit. But plaintiff contends that the charter does not include or apply to a cáse where the proceeding did not authorize the issuing of a tax bill, the bill being void ah initio. We are of that opinion.
That part of the provision quoted as to the validity of the bill does not refer to a void bill. It has reference to a bill which is invalid by reason of some matter which may be corrected; where some action may be taken whereby the invalidity may be cured. Merely as illustrative of this see Girvin v. Simon, 116 California, 610, and authorities cited. If, for instance, the bill is void by reasofi of there being no ordinance upon which to base any of the proceedings, it ought not to be thought that the charter has by this provision attempted to make it valid. In this case, under the authori
It is certainly an extraordinary proposition that a citizen who has had no lot or part in proceedings whereby it is sought, against his will, to appropriate his property shall, after such proceedings have been closed and before he has been called upon to answer in court, come forward within a limited time and disclose his defense, or be forever barred. A man who purposes taking some affirmative legal action himself may be required to do so within a limited time (as by statute of limitations) else he will'be shut out of the courts. But that is altogether a different matter to that of one who, being passive, hearing he is to be assaulted by another for a thing already done by others, and for which he is not legally liable is required to announce, in advance, his defense to the contemplated wrongful assault. “The law does not compel any man who is unassailed to pay any attention to unlawful pretenses which are not asserted by possession or. suit.” Grosbeck v. Seely, 13 Mich. 330, 343; Baker v. Kelly, 11 Minn. 480; Taylor v. Miles, 5 Kan. 498; Dingey v. Paxton, 60 Miss. 154. And this principle has been twice approved by the Supreme Court of this state. Spurlock v. Dougherty, 81 Mo. 171; Mason v. Crowder, 85 Mo. 526.
We have before us an extended argument, with free citation of authorities, in defense of the proposition that the charter provision aforesaid should be construed literally and permitted to cut off all defense to a tax bill which had not been questioned by the written objection of the property owner within sixty tlays. An examination of those authorities discloses that they do not bear upon the question. They are based on estoppel, and most of them affirm the proposition that where one, after notice, stands by and permits
Some of them are based on the provisions of law which required the property holder, on notice, to come into a tribunal provided for contesting the proposed work or tax, or both, and hold that he was precluded thereafter. In other words, that the matter had been adjudicated. But the section of the charter in controversy makes no such provision. Installment tax bills are provided for, the last of which may run without suit for four years from date of issuing, and the property owner is required to state ail defenses in sixty days which are to be made when sued upon, it may be, four years thereafter. lie is thus required to know in advance wdiat may not develop for several years, and the only safeguard would be for all property owners, as a precautionary measure, to make, at haphazard, all objections permitted and thus destroy the very object of the law as interpreted by counsel. Here, under the provision of the charter aforesaid, there is no place for the operation of an estoppel. The charter, as just stated, does not provide a tribunal with jurisdiction to hear objections, but is a mere arbitrary direction to the property holder to disclose whatever defense he may have to that which has already taken place. It does not contemplate the doing of work, or the payment of money on the faith of some act or omission of the property holder, for all has been done before the provision under review begins to operate.
But a suggestion has been made which, in reality, forms the base of counsel’s entire argument. It is that the purpose of the charter in reference to installment tax bills is ,fto make them first class commercial securities, the validity of 'which is incontrovertible after sixty days from date of
We have stated above that the provision of the charter was not intended to apply, and did not purport to apply, to a void bill; that it was not intended to validate that which was so far void as it could not be corrected. There would be no reason in requiring a statement of objections that were incurable at the time the objections are required to be made. Whether the provision, which appears to be sui generis, should be held effective to compel the property owner to file, in advance, a written statement of such objections as might be remedied, is not at all necessary to a decision of this case and is not decided.
A suggestion has been made, since the cause was submitted, that the tax bill in controversy was not void. That
The judgment is affirmed.