Regan Land Co. v. City of Carthage

ELLISON, J. Plaintiff is seeking by this proceeding to cancel the levy of certain taxes on its property [631] by the defendant city, on the ground that the taxes levied are illegal and are a cloud upon its property. The defendant city demurred to the petition on the ground “that said petition does not state facts sufficient to constitute a cause of action; that it appears upon the face of said petition that there is a want of necessary parties defendant.” This demurrer was overruled by the trial court and defendant thereupon 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 the water company parties defendant. The petition alleges that the tax purports to he to collect money to pay the “Carthage Water and Power Company” for water supplied to the defendant city for hydrant rental for the year 1906. And that the tax so levied had been entered on the tax books of the city and placed in the hands of the city collector for collection and that he was demanding payment thereof. The petition then alleged that “said taxes and the levy thereof by the defendant are illegal and that the defendant city had no authority to levy said tax on plaintiff’s property 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 obligations 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 amount 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 [632] the amount of taxes 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 the taxes alleged to be illegal, there AVOuld be more reason in the complaint that they had not been made parties defendant. But since no action, affirmative or negative, is proposed to be taken against them, we conclude 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 company 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 theretofore 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 position of seeking to enforce the collection of taxes for the purpose of complying with a contract Avhich it had annulled. It is not claimed 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.] The Anew taken by the trial court we deem to be correct and hence affirm the judgment. All concur.