Opinion
July 3, 1928.
1. INTEREST: Special Tax Bills: Prior Judgment. Under the charter of Kansas City interest on special tax bills is allowable prior to a judgment on the bills, and not simply from the date of the judgment.
2. ____: ____: Recital of Amount of Taxes. The interest provisions of the Kansas City charter do not require a correct recital of the amount of taxes in the special tax bill.
3. ____: ____: Penalty. The per cent of interest on an unpaid special tax bill provided for by the Kansas City charter is not a penalty, but interest relating back to the date of the tax bill.
4. ____: ____: Reduction. The allowance of interest on a special tax bill is governed by statute, and the courts have no authority to disallow interest contrary to the statute, or to reduce the rate of interest from seven or eight to six per cent.
5. SPECIAL TAX BILL: Extra Work: Contract: Actual Cost. Where the owners of the lot and the city entered into an agreement that the contractor should "slope off the banks or sides of all cuts made in the street to prevent earth or rock from falling from the adjacent property on to said street, and to include the cost of removing such earth and rocks from the slope or sides of the embankment in the tax bills issued for the grading of said street," the actual cost of such extra work, and not merely the contract price for grading the street, should be included in the tax bills.
6. ____: ____: Done under Agreement. Notwithstanding the charter provided that all public work to be paid for by special tax bills shall be done by contract let to the lowest and best bidder, an agreement between the owners and the city that the cost of extra work may be included in the special tax bills is enforcible, where the extra work was done in reliance upon the agreement.
7. ____: Value of Omitted Land. The value of the land in the benefit district as fixed by the city assessor is to be taken as the basis of valuation, and with this basis the value of the omitted land (in this case including the streets and alleys) is the amount by which the land valued by the city assessor would have been increased in value by the addition thereto of the omitted land.
8. ____: ____: Judgment. In a suit on special tax bills issued by a benefit district from which lands have been improperly omitted, the court should ascertain the value of the omitted lands, and add such value to the value of the property originally included in the district, and render judgment on the tax bills for that proportion of the same which would remain after deducting a sum which bears to the amount of the tax bills the same proportion as the value of the omitted lands bears to all the property which should have been included in the benefit district.
Corpus Juris-Cyc. References: Municipal Corporations. 44 C.J., Section 2236, p. 132, n. 83; Section 3079, n. 642, n. 6; Section 3163, p. 691, n. 38; Section 3391, p. 795, n. 25.
Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
REVERSED AND REMANDED ( with directions).
Miller, Winger Reeder, Caleb S. Monroe and Clarence S. Palmer for appellants.
(1) All the questions involved in this case have been determined by this court in favor of appellants. Seested v. Dickey, 318 Mo. 192. (2) Kansas City had the right to re-issue the tax bill involved in this case, at the time and in the manner in which it acted. (a) Section 27. Article 8, of the Kansas City Charter, does not constitute a limitation of one year on the time to re-issue the tax bill, for the reason existing in this case. Mention of time is merely directory. Savings Bank v. Ridge, 79 Mo. App. 26, affirmed 183 Mo. 506; Riley v. Stewart, 50 Mo. App. 594; Paving Co. v. Field, 134 Mo. App. 663; Lewis' Sutherland Statutory Construction (2 Ed.) secs. 611, 612; State ex rel. v. Ry. Co., 113 Mo. 297; St. Louis Co. v. Ringo, 42 Mo. App. 115; People v. Allen, 6 Wend. 486; Walker v. Chapman, 22 Ala. 116; Commissioners' Court of Limestone Co., 48 Ala. 435; Burkley v. Omaha, 102 Neb. 308; Yengel v. Allen, 179 Iowa 633; Higgs v. Amlen, 39 N.J. 618; State ex rel. v. Trust Co., 76 Minn. 423; Anderson v. Mayfield, 93 Ky. 230; Custer Co. v. Yellowstone Co., 6 Mont. 39; Stayton v. Hulings, 7 Ind. 144; Harkan v. Beasley, 11 Ga. App. 273. The maxim expressio unius est exclusio allerius does not control. Grubbe v. Grubbe, 26 Or. 363; Lewis Sutherland Statutory Const. (2 Ed.) sec. 495; Montville v. Houghton, 7 Conn. 543; Lexington ex rel. v. Commercial Bank, 130 Mo. App. 687; McGrew v. Railroad, 230 Mo. 528; McQuiston's Adoption, 238 Pa. 304; Fisher v. St. Louis, 44 Mo. 483; Blevins v. Mullaly, 22 Cal.App. 519. (b) No two-year statute of limitations is involved in this case. A tax bill which was held invalid, because payable in one year, and whose lien extended for only two years, could not set running a statute of limitations. (c) No five-year statute of limitations applies. The new tax bills became liens on June 8, 1920, within five years from the date of issue of the first tax bills. Secs. 1, 3, 11, 22, 23, Art. S, Kansas City Charter. (d) The only five-year statute is the general statute of limitations. Sec. 1317, R.S. 1919. This does not apply. Only the city could have pleaded this statute. Allen v. Smith, 129 U.S. 465; Sanger v. Nightingale, 122 U.S. 176. (3) The provision of the Kansas City Charter assessing property for the cost of grading back to the middle of the block, on each side of the street graded, as applied to the taxing district, in the case at bar, does not violate any constitutional provision. Gast R. Inv. Co. v. Schneider Granite Co., 240 U.S. 55; Ruecking Const. Co. v. Withnell, 269 Mo. 546, affirmed Withnell v. Ruecking Const. Co., 249 U.S. 63; Commerce Trust Co. v. Keck, 283 Mo. 209. (4) While the decision of this court in Commerce Trust Co. v. Keck, 283 Mo. 209, indicates that a small amount of land should be added to the taxing district, to help pay for the cost of the work involved in this case, it is perfectly competent for the court to make such correction, and, upon testimony, to determine the amount of reduction of the tax bill. Commerce Trust Co. v. Keck, 283 Mo. 234; Neenan v. Smith, 60 Mo. 292; First Nat. Bank v. Arnoldia, 63 Mo. 229; First Nat. Bank v. Nelson, 64 Mo. 418; Neil v. Ridge, 220 Mo. 233; Embree v. Road District, 257 Mo. 593, affirmed 240 U.S. 242. (5) The inclusion of the amount of material, removed outside the vertical lines of the street, was proper, being necessary to protect the work expressly provided for in the proceedings and contract. Respondents requested that this very work should be done. Kansas City had the right to require this work to be done, as extra work, and to determine the cost thereof. Allen v. Rodgers, 20 Mo. App. 290; Johnson v. Duer, 115 Mo. 366; Heman v. St. Louis, 213 Mo. 538; State v. Jersey City, 29 N.J. 441; Wood v. Fort Wayne. 119 U.S. 312; Slusser v. Burlington, 47 Iowa 300; White v. New Orleans, 15 La. Ann. 667. (6) Respondents are estopped from claiming that the taxing district established by the Kansas City Charter is a violation of any constitutional provision or that the material excavated outside the vertical sides of the street should not be included in the tax bills. Herman on Estoppel (2 Ed.) secs. 733, 1221; Cross v. City of Kansas, 90 Mo. 13; City of Burlington v. Gilbert, 31 Iowa 357; Bigelow on Estoppel, p. 755; Vaile v. City of Independence, 116 Mo. 333; Fitzgerald v. DeSoto Special Road Dist., 195 S.W. 695; State ex rel. v. Mastin, 103 Mo. 508; Daniels v. Tierney, 102 U.S. 415; Paving Company v. Fleming, 251 Mo. 210.
Scarritt, Jones North for respondents.
(1) The court may not upon this record diminish and fix the charge stated in each tax bill. The following section of the charter and cases are cited and analyzed to show that they do not support the proposition that a partial recovery can be had on these tax bills. City Charter, Art. 8, sec. 24, p. 339; Commerce Trust Co. v. Keck, 283 Mo. 209; Neil v. Ridge, 220 Mo. 233; Johnson v. Duer, 115 Mo. 356; Creamer v. McCune, 7 Mo. App. 91; First Natl. Bank v. Nelson, 64 Mo. 418; Neenan v. Smith, 60 Mo. 292; First Natl. Bank v. Arnoldia, 63 Mo. 229. (2) The abortive assessment of June 8, 1915, is invalid as a charter assessment. The assessment or apportionment of the cost of this work essayed to be made by the Board of Public Works on June 8, 1915, was irregular, erroneous, defective and invalid, and the bills in suit, the re-issued bills, issued and delivered on July 13, 1920, to evidence that invalid assessment and apportionment, are not the things the charter defines as tax bills, and are accordingly void. (a) The board was guilty of omitting and failing to describe the lawful tax-assessable district in its order upon the city assessor to value the lands therein for the purpose of assessing or apportioning the cost of this work, and the board thereby violated its charter duty. The city assessor was guilty of omitting and failing to value all of the lands legally chargeable with the cost of this work as the charter required him to do. He thereby violated his charter duty. The charter is mandatory that the board shall apportion the grading cost, and charge each tract of land within the taxable district with its due share thereof according to the value of each lot as returned by the city assessor. No other means of apportioning that case than accordingly with the valuations of the city assessor is provided in the charter. The board is required to get that valuation from him and apportion and charge accordingly. This it did not do. Without such assessor's valuation of each and every tract subject to assessment the board is incompetent to make a legal and valid assessment. (b) Whenever by legislative enactment power is conferred upon a particular tribunal to perform certain acts relating to the exercise of the power of taxation such legislative enactment is mandatory in its nature and must be strictly observed and the power is to be exercised only by the tribunal upon whom it is conferred, and if not so exercised the tax levy is void. State ex rel. v. Railroad, 149 Mo. 365; Railroad v. Apperson, 97 Mo. 300; State ex rel. v. Railroad, 87 Mo. 236. (c) When lands within a legally assessable district fixed by proper authority are entirely omitted form assessment the effect is that a different taxing district from the legal district has been formed unlawfully by unauthorized officials and a purported assessment on the unauthorized district disturbs the principles of apportionment and assessment and renders the entire assessment void. Hamilton, Law of Taxation by Special Assessment, sec. 542; 1 Page Jones on Taxation, sec. 369; In re New York Protestant Episcopal School, 75 N.Y. 324; Spokane Fails v. Brown, 3 Wn. 84; Klein v. Nugent Gravel Co., 162 Ind. 509; In re Klock, 51 N.Y.S. 909. (d) Those who deal with public officials are conclusively presumed to know the extent and limit of their authority. Mister v. City of Kansas, 18 Mo. 217; City of Nevada v. Eddy, 123 Mo. 557; In re Klock, 51 N.Y.S. 897; St. Louis v. Tel. Co., 96 Mo. 623. There never has been a valid and legal assessment by the Board of Public Works. City Charter. Art. 8, sec. 3, p. 314. (e) Judge GOODE in his opinion in Dickey v. Seested, 283 Mo. 167, a suit to enforce one of the original demand bills for this work, did not rule that the assessment and apportionment of the cost involved in the case at bar was a valid one. (3) Without a legal and valid assessment no special tax can be laid or collected by virtue of the city charter through a tax bill or otherwise. A legal and valid assessment is an essential step in the process of special taxation as established by the city charter. State ex rel. v. Railroad, 149 Mo. 635; Railroad v. Apperson, 97 Mo. 300; Dickey v. Seested, 283 Mo. 188; Reassessments, City Charter. Art. 8, sec. 27. The Board of Public Works by the city charter is empowered and solely empowered to make the assessment or apportionment of the cost of grading a street and that power cannot be delegated nor can the essential acts be shifted to other parties. McQuiddy v. Vineyard, 60 Mo. App. 610; Dollar Savings Bank v. Ridge, 62 Mo. App. 324; State ex rel. v. Railroad, 149 Mo. 635; Railroad v. Apperson, 97 Mo. 300; Hamilton on Law of Taxation by Special Assessment, sec. 542; 1 Page Jones on Taxation by Assessment, sec. 639; In re New York Protestant Episcopal School, 75 N.Y. 324; Spokane Falls v. Browne, 3 Wn. 84, 27 P. 1077; Klein v. Nugent Gravel Co., 162 Ind. 509. (4) The bills are void because they were not issued and delivered within five years after the completion and acceptance of the work. The five-year statute of limitations applies. R.S. 1919, secs. 1315, 1317; Moberly ex rel. v. Hassett, 127 Mo. App. 11; Kerwin v. Nevin, 111 Ky. 682. The statute begins to run as soon as the right to bring the action accrues. Boyd v. Buchanan, 76 Mo. App. 56. A valid bill cannot be issued after five years from the completion and acceptance of the work. Moberly ex rel. v. Hassett, 127 Mo. App. 11; Kerwin v. Nevin, 111 Ky. 682. Missouri cases involving the question of the time of beginning suit to enforce special tax bills analyzed for the purpose of showing that the doctrine of Moberly ex rel. v. Hassett has never been departed from in this State: Riley v. Stewart, 50 Mo. App. 594; Galbreath v. Newton, 45 Mo. App. 312; Barber Asphalt Pav. Co. v. Field, 134 Mo. App. 663; Dollar Savings Bank v. Ridge. 79 Mo. App. 26, 183 Mo. 506; Likes v. City of Rolla, 190 Mo. App. 140. (5) Equity will remove the cloud of a lien which has expired by limitation. Truitt v. Bender, 193 S.W. (Mo.) 838; Jackson v. Sinnott, 119 Ill. 449. (6) The abortive mandamus suit is unavailing to toll the Statute of Limitations. Miami Co. v. Mowbray, 160 Ind. 10; Mason v. Railroad Co., 51 W. Va. 183; State of Kansas ex rel. v. Railroad, 11 Kan. 66; Gerren v. Railroad, 60 Mo. 405; Clark v. Hackett, 5 Fed. Cas. No. 2823, 1 Cliff. 269; Everett v. Marston, 186 Mo. 587; Missouri Land Co. v. Quinn, 172 Mo. 563. (7) Mandamus is the complete and effectual remedy of a contractor upon the completion and acceptance of his work in case the city refuses to issue him valid tax bills therefor in compliance with its contract. Likes v. City of Rolla, 190 Mo. App. 140. (8) The Federal Question: The ordinance authorizing this work as one general improvement, being city Ordinance No. 16750, and the ordinance approving the contract for the work, being Ordinance No. 18683, are void because they arbitrarily impose all the grading cost on a small part of a benefit district and wholly omit any charge against other lands within that district which are equally or more benefited than those arbitrarily charged in contravention of Federal guaranties, and impinge plaintiffs' rights guaranteed by the Fourteenth Amendment. Gast Realty Co. v. Schneider Granite Co., 240 U.S. 55; Commerce Trust Co. v. Blakeley, 274 Mo. 52; Washington Avenue, 69 Pa. 362; Norwood v. Baker, 172 U.S. 297; Corrigan v. Gage, 63 Mo. 541. (9) The written consent of the plaintiffs in evidence does not estop them from asserting that the tax bills in suit are illegal on the ground that the assessments which they purport to evidence are invalid and void, or because they were not issued within five years from the date of the completion and acceptance of the work, or that the grading ordinance is void. Commerce Trust Co. v. Keck, 283 Mo. 209. (10) The charge of $2 per square yard allowed the contractors for grading done outside of the street lines is unlawful. Under the terms of the grading contract they should have been allowed the contract price of ninety-six and one-half cents per square yard therefor, and no more. This change in that allowance would diminish the grading cost by $18,480.61 and each bill accordingly. American Contracting Co. v. Norton, 252 S.W. (Mo.) 372, distinguished. (11) No judgment enforcing the tax bills in whole or in part in defendants' favor can be had in this suit for the simple reason that there was no default in the bills when the suit was begun. Action set up in a cross-petition must have existed when plaintiff's petition was filed and the action begun. Parker-Washington Co. v. Dodd, 264 S.W. 651; R.S. 1919, secs. 1232, 1233; Todd v. Crutsinger, 30 Mo. App. 145; Reppy v. Reppy, 46 Mo. 571; Second Baptist Church v. Beecham, 180 S.W. 1065; Iler v. Natl. Bank, 69 Mo. App. 64; Bauerdorf v. Wall Paper Co., 220 S.W. 220.
Plaintiffs seek to cancel special tax bills against lots owned by them in Kansas City, Missouri. The bills were for the regrading of Main Street between 24th Street and Grand Avenue. On the trial, the issues were found in favor of plaintiffs. Defendants appealed.
In the case of Seested v. Dickey, 318 Mo. 192, 300 S.W. 1088, we held a tax bill issued against other land for the same work to be valid. We further held that "the benefit district should have included a strip 150 feet wide along the west side of Main Street, in the tract known as `Station Park,' and that the west boundary line of the district, as extended from the south, should have continued north until it reached the Station Park tract, so as to include all of Tract C not included in Station Park." The evidence in said case was offered and admitted in the instant case. We adhere to all of our rulings in the Seested case.
With exceptions to be presently noted, the issues in the instant case were determined adversely to respondents in the Seested case. Reference should be made to the opinion in that case for a statement of the facts in the instant case.
I. Respondents contend no interest should be allowed on the tax bills until the amount due has been determined by a Interest. judgment. They further contend that if interest is allowed it should not exceed six per cent.
The tax bills, in compliance with the charter, contain the following provision:
"This tax bill, including each installment thereon, if not paid in full before the expiration of thirty days from the date hereof, shall bear interest from this date at the rate of seven per cent per annum, and when any installment becomes due and collectable, as herein provided, interest thereon and on all unpaid installments shall be due and collectable to that date. If any installment of this tax bill be not paid when due, then all the unpaid installments shall immediately become due and collectable, together with interest thereon at the rate of eight per cent per annum from the date to which interest has already been paid on said installments."
It is argued that "these interest provisions of the charter are based upon the assumption that the tax bill contemplates on its face what the charter contemplates and requires, namely, a correct recital of the amount of taxes." We have ruled to the contrary in the following cases: [Neill v. Ridge, 220 Mo. 233, 119 S.W. 619; Neenan v. Smith, 60 Mo. l.c. 295.]
It is also argued that the per centum provided for in the charter is a penalty and not interest and that it would not relate back to the date of the original tax bill. This, also, has been ruled to the contrary in the case of the City of Boonville ex rel. Cosgrove v. Stephens, 141 S.W. 1111.
Respondents contend they were unable to determine the amount due on the tax bills and, therefore, could not stop the accruing interest by a tender, and that it would be contrary to the true principles of law and equity to compel the payment of interest under the circumstances.
In answer to this contention appellants direct attention to the calculation of respondents made in their brief of the amount the tax bill should be reduced as evidence of their ability to make a tender. In any event, the allowance of interest is governed by statute, and we are without authority to legislate on the question.
It is argued that if interest is allowed it should not exceed six per cent. If we are without authority to disallow interest on the tax bills, we are without authority to reduce the rate.
The contentions are overruled.
II. In the Seested case, supra, we ruled that the work of removing from the street the earth and rock occasioned by "forced slides" was extra work and not work directly Extra Work: provided for by the contract. In that case the Actual Cost. owner of the lot had entered into no agreement regarding the work connected with the "forced slides." In the instant case the owners of the lots were parties to an agreement with the Mayor, Common Council and Board of Public Works, as follows:
"We also consent that the contractor, in grading said Main Street between said points, may be required to slope off the banks or sides of all cuts made in the street, to such an extent as may be deemed necessary by the city engineer to prevent earth or rock falling from adjacent property on to said street, and to include the cost of removing such earth and rocks from the slope or sides of the embankment in the tax bills issued for the grading of said street."
The grading contract provided for a payment of ninety-six and one-half cents per square yard. The actual cost of the extra work was kept by the city officials and was determined to be two dollars per square yard.
It is argued that the above agreement contemplates the payment of only 96½ cents per square yard for this extra work. We do not so interpret the agreement. If it had been the intention to limit the cost for this extra work, it would have been so stated in the agreement.
In this connection attention is directed to Section 2. Article 8, of the Charter of 1909, which provides that all public work which has to be paid for in special tax bills shall be done by contract let to the lowest and best bidder. This provision was not followed in providing for this extra work, but the owners of the lots in question consented to this work without a compliance with this provision, and they consented that the cost of the work might be included in the tax bills. The contractor testified that he relied upon this agreement in contracting to perform the work, and the assignee, Mr. Dickey, testified that he relied upon the agreement in purchasing the bills. Therefore, as to this question they should not now be heard to complain.
III. We are urged by respondents and appellants to direct the trial court as to the method of determining the value of the omitted land. The value of the land in the benefit district as fixed by the city assessor must be taken as a basis. Value of With this basis, the value of the omitted land Omitted (including the streets and alleys in that part of the Lands. benefit district in Station Park) is the amount the land valued by the city assessor would have been increased in value by the addition thereto, on June 8, 1915, of the omitted land, including said streets and alleys.
It follows the judgment is reversed and the cause remanded with directions to the trial court to ascertain the value on June 8, 1915, of only that part of the east 150 feet of Station Park and of that part of Tract "C" not included in Station Park, which were not in the original benefit district, and of the streets and alleys in that part of Station Park in the benefit district, and to add the values thus ascertained to the sum of $753,115, the value of the property included in the district, and render judgment for appellants upon the tax bills for that proportion of the same which would remain after deducting a sum which bears to the amount of the tax bills the same proportion as the value of the omitted land, streets and alleys bears to all the property which should have been included in the benefit district added as above indicated. All concur, except Blair, J., who dissents.