Jaicks v. Oppenheimer

OPINION. BOND, J. Appellant here (plaintiff below) brought this action on a tax bill issued to him, as part payment, for doing paving work on Cleveland avenue in Kansas City, under authority of a valid ordinance. Amount of tax bill $725.28, and issued .against lot 28, Indianapolis Place, in said city. The petition alleged that all the defendants named claimed some interest in the above-mentioned property, ¿nd prayed for the establishment of a prior lien on said property for the amount of said tax bill'against all of the defendants. The defendants answered, setting up that they held similar tax bills against said property issued to them for public work prior to that issued to, the plaintiff, on some of which suits were then pending. The admissions of the parties established the facts stated in the pleadings. The court, over the objection of plaintiff, rendered a judgment sustaining his lien for the amount of his tax bill and interest against the property described in his petition, except against those defendants who had anterior tax bills, or had acquired interests — 698 — under suits on prior tax bills, and adjudged that such interests and titles in said defendants were not subject to tbe lien of plaintiff’s tax bill. After the overruling of a motion for a new trial plaintiff appealed to tbe Kansas City Court of Appeals. Upon tbe bearing of said appeal that court, after stating tbe above facts, rendered an unanimous opinion reversing tbe judgment of tbe trial court and remanding tbe cause with directions to give priority to plaintiff’s lien, but on account of tbe conflict of that view with tbe decision of tbe St. Louis Court of Appeals, 150 Mo. App. 188, certified tbe cause to this court for final determination as provided in tbe Constitution. As a prelude to what we shall say in this case, and because we concur in tbe conclusion of tbe Kansas City Court of Appeals as to tbe relative priority of tbe liens of tax bills for special assessments for public work in cities and towns, we herein copy tbe discussion of tbe Kansas City Court of Appeals, speaking through Judge Trimble: “With regard to all ordinary bens arising out of private contract and not imposed solely by governmental power, priority in time creates priority in force and effect, tbe first in order of time being, prima facie, superior to those of a later date. But tbe priority of tbe liens of general taxes is in tbe reverse of this order, tbe last is first and tbe first last. [2 Cooley on Taxation (3 Ed.), 875; Anderson v. Rider, 46 Cal. 134; Sayles v. Davis, 22 Wis. 225; Wass v. Smith, 34 Minn. 304.] This rule is well settled and is not ’ disputed. Tbe question is, however, whether there is any distinction to be made in this regard between tbe liens of general taxes and those of special taxes ¶ “Tbe precise question was before tbe St. Louis Court of Appeals in Parker-Washington Company v. Corcoran, 150 Mo. App. 188, in which it was held that — 699 — the liens of special taxes for local improvements took priority in the same order as other ordinary liens, and not in the reverse order of their time as with those of general taxes. The decision is placed upon the ground that there is an essential distinction between general taxes and special taxes, and that in the absence of a statutory or (which is the same thing) a charter provision to the contrary, the lien of a special tax bill takes priority over another special tax bill in the same order as do other ordinary liens, that is, the first in point of time is prior to the later tax bills. Of course, if a statutory or charter provision exists which expressly or by necessary implication creates the reverse order of priority, then, by virtue of such provision, the distinction between the two kinds of tax liens is taken away, so far as the rule of priority ■as between different liens of the same kind or class is ■concerned. And the St. Louis Court of Appeals, finding no provision in the St. Louis charter which clearly gave such reverse order of priority, held that there was such a distinction between general and special taxes that the latter could not be given the same rule of priority which prevails with the former. It is true, as stated in that case, the rule is well settled with respect to both legal and equitable liens that, in the absence of statutory regulations to the contrary, the lien which is prior in time gives a prior claim and is entitled to satisfaction out of the subject-matter before other subsequent liens are paid. But an examination of the authorities cited by text-writers and others in support of the rule thus announced in such general terms, will disclose that the cases are dealing with ■ordinary liens arising out of private contract and not those created and imposed solely by governmental authority in the exercise of the taxing power. Consequently, a statement of the general rule of- priority with respect to ordinary liens can aid but little in determining the rule of priority of special tax liens with — 700 — reference to each other, because, at last, it all comes-down to the question whether there is any such inherent difference and distinction between the liens of special taxes and those of general taxes as will require' the rule of priority in the one to he different, from that'of the other. “When the two kinds of taxes are considered for the purpose of determining this question it will he found that there is not such an inherent difference between them as to place the liens of special taxes merely in the category of ordinary liens. It is true, general taxes are levied for the support of the government and in that sense general taxes are the more important of the two and ought to take precedence over special taxes, so that the lien of a general tax ought to he prior to the lien-of a special tax, even though the latter be prior-in point of time. But that is not the question here. The question now is as to the rule of priority as between the different liens of different special taxes'. And the precise inquiry- now at hand is, what essential or inherent difference is there in the nature of special taxes which deprive their lien of a rule accorded to the lien of general taxes ? Both are created by acts of the sovereign power exercised for the public-good. ' In both the taxing power operates in rem, that is, on the property itself without regard to different or conflicting interests of ownership; in fact, in total dis: regard of any liens or interests attached thereto. The proceedings to collect both are proceedings' in rem. And ‘the general and universal rule is that in proceedings in rem to enforce the payment of taxes the last tax levied and sought to be enforced is superior and paramount to the lien of all other taxes, claims or titles.’ [2 Cooley on Taxation (3 Ed.), 875.] The Supreme Court of our State in the case of Morey Engineering & Const. Co. v. Ice Sink Co., 242 Mo. 241, l. c. 256-7, discusses the question whether the same — 701 — principles applicable to general taxes are not equally applicable to special taxes and reaches the conclusion that they are. The court says both are created by the sovereign power of the State for the public good; that while in a number of opinions special taxes are said not to be taxes in a certain sense, yet that by this is meant only that they do not come within the taxes referred to by certain constitutional provisions establishing limitations as to the amount to be levied for the purpose of general- revenue; that while a special tax is not a general tax for the support of the government, yet it is a tax imposed by the same sovereign power for the same general purpose — the general good. And on page 258 of the same case the Supreme Court say that on principle the same ruling should apply to both; the exigencies of government require that special taxes be levied, and the necessity for their prompt and certain collection is surely great enough to demand that classification which will insure those ends. “It would seem that any distinction drawn between the two kinds of taxes which would relegate the liens of special taxes to the same class as ordinary liens arising out of private contract would be, to that extent, a shortening of the sovereign power to impose such taxes. If the lien for special taxes which is first in point of time can supersede all similar liens coming after it, then when once the sovereign power has levied such a tax, it must perforce wait until that tax has been removed according to the sweet will and pleasure of the owner of the land and the holder of the tax bill, before another can be levied. In this way the wheels of progress could be blocked, or at least effectually impeded. In this very case the tax bill sued on is for paving Cleveland avenue, and was authorized November 10, 1910, and the tax bill was issued May 1, 1911; while one and possibly two of the other tax bills claiming to he superior is for grading the same avenue au — 702 — thorized as far back as October, 1907, and two others are for paving a near-by street and sewer construction begun as far back as December, 1903. The argument that the taxing power ought not to levy a special tax and give a lien therefor and then be allowed to destroy that lien by' subsequently levying another tax and giving a lien paramount to the other, is more plausible than forceful. And the same argument would apply equally well to the lien of general taxes. It is said with regard to the latter that when one buys property at a general tax sale, the moment he acquires the property it becomes his duty to pay all subsequent taxes levied thereon, and .therefore it is no wrong nor hardship to make the lien of the last tax superior to the tax under which he bought. Quite true, and so does it becomes the duty of one who buys at a special tax sale to pay all subsequent special taxes levied thereon for the public good. And it would seem to be less of a hardship in such case than in the case of general taxes, since the special taxes benefit the property directly, while the general taxes only remotely. Suppose the defendants in this case had energetically enforced their liens, instead of letting them lie as théy seem to have done, and had purchased the property in question, could any one say that the city could not at once thereafter have levied another special tax on the property for another improvement? In such case the new owner would have to pay off the lien thereof or lose his newly acquired property. And if the taxing power could lawfully do this what wrong would it be perpetrating upon such purchaser if it levied the tax before he chose to make his purchase? In fact, any argument based upon any notions of so-called wrong or injustice in the case of a special tax applies equally well, and some times with more force, to the case of a general tax. The question, however, goes deeper than any such considerations, and involves the question — 703 — whether there is, in reality, such a distinction between the two classes of taxes as to justify the application of a different rule, and whether the sovereign power can be impeded or hampered by any such distinction. “In arriving at a determination of the question involved, not a great deal of assistance is to be derived from the decisions of other States, since there are not many of them upon this precise question. And some of these are based upon the peculiar wording of a particular statute, and, in others, different States have reached contrary conclusions in cases where their respective statutes were practically the same. “It is true that in the Morey case above mentioned, 242 Mo. 241, the question was between the lien of a special tax bill and that of a prior deed of trust, but it would seem to be clear from the majority opinion in that case that there is no such distinction between the nature of special taxes and general taxes as to deprive the former of the rule of priority, as between themselves, which is accorded to the latter. In other words, special taxes do not have to have an express statutory provision giving such rule of priority, but have it by reason of their partaking of the same essential nature and importance of general taxes — both being acts of the sovereign taxing power exercised for the public good. If, without such statutory provision, a special tax lien is superior to that of a prior private lien, such as a deed of trust, then such tax lien has it by virtue of the fact that it partakes of the same nature and characteristics of a tax as does a general tax, and is therefore entitled to the same rule of priority, at least as between itself and all other special tax liens and private liens. “If statutory authority be required, however, it would seem to be implied (or at least not denied therein) from the following found in the City Charter, article 8, section 22: — 704 — “ ‘Any person owning.or interested in any tract of land against which, a special tax bill may be issued under the provisions of this charter may pay the same to the city treasurer, whose duty it shall he to receive the amount thereof without charge or commission,’ etc. And also section 24 of the same article, to-wit: “ ‘No tax bill need give the name of any party owning or interested in the land charged thereby . . . All or any of the owners of the land charged, or of any interest or estate therein, may he made defendants in any suit upon a tax bill and the right, title, interest or estate of the parties made defendants in any such suit shall be bound thereby.’ “As said in the Morey case, this provision is meaningless unless it enables those holding a lien upon lands in the city to protect themselves by paying the subsequent special tax, without charge or commission, to which their interests are subordinate. If their interests are not subject to the special tax why should they be referred to in connection with its payment? The words ‘any person interested in any tract’ in section 22 are broader than and are not synonymous with the words ‘having an estate in any traci,’ and the words in section 24 ‘owners of the land or of any interest or estate therein’ include others than merely those holding a technical estate in said lands. But the above provisions of the city charter are not sufficiently express to give special tax liens the reverse order of priority accorded general taxes, unless both so far partake of the same essential nature as to entitle special tax liens to such rule of priority at least as between themselves and as between them and all other liens not amounting to the dignity of general tax liens. The inference to be drawn from the Morey case is that they do partake of this same nature, and do. not depend upon the positive enactment of a statute to give them the same rule of priority. If this be the correct deduc — 705 — tion to be drawn from the Morey ease, it follows that the judgment should be reversed and the cause remanded with directions to give priority to plaintiff’s hen. But inasmuch as this view is in conflict with the decision of the St. Louis Court of Appeals in the Parker-Washington case, 150 Mo. App. 188, the case is ordered certified to the Supreme Court for final determination. In this way the question here involved can be put at rest and all doubt thereon can be resolved and settled. All concur.” In further illustration of the correctness of the result reached in the foregoing opinion by the Kansas City Court of Appeals, we desire to say: The power to assess private property for public improvements, beyond the uniform rate prescribed by the Constitution, is derivable only from the fast that such property is enhanced in value to the amount of the tax beyond that of other citizens, by the public betterment. Any assessment not thus bottomed is void. Upon this basis only can the Legislature, through its auxiliaries in government, exert its taxing power for the construction and repair of streets and other public purposes. Hence, provision is made in the charters of cities and towns that the private owners shall pay only that portion of the tax represented by the moneyed increase in the value of their respective property, and that the remainder of the tax must be paid out of the general revenues of the municipalities. It is on this principle alone that special assessment can be laid upon private property for public improvements and other works necessary to urban life. None the less, however, the impositions thus made are strictly referable to the taxing power of the State lodged in the Legislature subject to the limitations of the Constitution, and such exactions are, in their essence, just as much taxes as are those which are collected for the support of the government itself. The — 706 — fact that a contractor for public work is permitted to enforce a portion of his compensation for the doing of such work from abutting property owners by a direct action upon a tax bill fixing the amount .to be collected from them, is to avoid circuity of action and to enable the municipality to collect in that way the incidental benefit which the public work prosecuted by it has afforded to particular citizens over all others. The result would be exactly the same if the city in the first instance paid out to the contractor the whole of his compensation, and afterwards collected from particular private owners the amount of the enhancement in value of their respective property. It is apparent therefore, as has been uniformly held in this State» that the whole process of making public improvements in cities and towns which involves the taxing, of particular property, is in its essence the exercise by the State through one of its delegated agencies of the taxing power lodged in the Legislature. ■ ' Special assessments are in the strictest sense of the terms charges on a physical property and proceedings to enforce them are in rem or against the thing itself. The authority under which they are laid fixes a lien upon the property as an equivalent of a permanent increment of its value by the public improvement or work for which the assessment was part payment, and assesses a tax bill to the contractor evidencing his right to recover that portion of his compensation for the doing of a needed public work. Upon that theory the same basis exists for such a lien as that created by courts of equity in railroad receiverships for the betterment work done on the-earnings of the property in the hands of the court and which, to the extent of the payment for such additions, displaces pro tcmto all prior mortgages and liens, including those for which the suit was instituted, as well as the claims of general creditors. [Van Frank v. — 707 — Railroad, 89 Mo. App. l. c. 499, and cases cited.] The foundation of this principle is justice, if not necessity. For it would be inequitable to permit prior encumbrancers in the enforcement of their liens to realize the added value which has been put in the property charged by the labor of others necessary to its protection or the uses to which it must be applied, pending proceedings for the enforcement of the rights of encumbrancers, without subjecting such encumbrances to the cost and outlays thus subsequently incurred. So, in this case, the last special tax was for an equivalent addition to the value of the property on which prior similar taxes were encumbrances. The charter of Kansas City provided that each should be a lien on the tiling benefited, necessarily thereby providing that the last lienor should have preference over the former, who, as to him, stood merely in the relation of persons interested in the property improved, and hence within the very terms of the charter providing that all such might be made parties to a suit like the present, or that all such might make payments of charges like the present tax bill. [Kansas City Charter, art. 8, sec. 22.] From these principles the corollary follows, that there is no essential distinction between a special tax constitutionally laid for special public purposes and a general tax laid for the administration of the government of the State. And that the rules of reverse priority applicable in the collection of successive general taxes, necessarily apply to the collection inter sese between successive special assessments laid for public improvements in cities and towns. We think, therefore, that the Kansas City Court of Appeals in this case has reached a correct conclusion, and that the decision of the St. Louis Court of Appeals was erroneous and should not be followed. The judgment of the circuit court is reversed and the cause remanded for proceedings in conformity with this opinion. Woodson. — 708 — C. J., and Faris, J., concur; Brotun, J., concurs in result; Graves and Blair, JJ., dissent ¡Walker, J., dissents in separate opinion.