Good v. Johnson , 299 Mo. 186 ( 1923 )

I. Suit on a special tax-bill issued to a contractor for constructing curbing in front of a certain lot in Kansas City, alleged in the petition to be owned by the defendant.

Defendant's answer set up that defendant was the owner of said property, under a city collector's tax-deed issued to him as the purchaser of said property at a sale thereof by said city for the delinquent city taxes of the year 1914, and that Section 39 of Article V of the charter of said city, providing that the title conveyed thereby should be subject to all unpaid special taxes and assessments which were a lien thereon, violates Section 16 of Article IX and Section 1 of Article X of the Constitution of Missouri.

There was no dispute as to the facts. Plaintiff's tax-bill for curbing was issued August 24, 1916, under an ordinance providing for the work, approved December 6, 1915. The city tax-deed to defendant was issued December 4, 1919, pursuant to a sale in November, 1914, for the delinquent city taxes of 1914. It was admitted by the parties that both the plaintiff's tax-bill and defendant's tax-deed were regular in form and substance, and issued in conformity to the charter of Kansas City.

The only question decided below and presented here is, whether defendant's tax-deed cut out plaintiff's tax-bill under the charter of the city and Constitution of the State. The lower court held it did not, and defendant has appealed.

II. As to the title the holder of such a tax-deed acquires: The Charter provides (Sec. 39, Art. V) that it shall be "an absolute estate in fee simple, in the real property described therein, and shall convey all the right, title and estate of theSubject former owner or owners, free from any and allto Liens. incumbrances of whatsoever kind or nature, subject, however, to all unpaid state, county and city taxes, general and special taxes or assessments which are a lien thereon."

As to tax-bills for public improvements, including tax-bills for curbing, the charter provides (Sec. 24, Art. VIII) that they "shall be a lien upon the land described therein upon the date of the certification thereof to the City Treasurer, . . . and such lien shall continue for two years thereafter but no longer," unless suit is brought thereon within two years, when it shall continue, until the legal proceedings are terminated.

Section 23 of Article VIII provides that "any and all special assessments, . . . whether arising out of the issuance of special tax-bills . . . or, . . . shall be considered for the purpose of collecting and receiving payment thereof, as special taxes against any lot or parcel of land against which the same may be a lien," etc.

Section 33, Article V, provides that the purchaser at a City Collector's tax sale "may pay . . . any special tax or assessment, tax-bill," etc.

Section 34, Article V, provides that the owner of the land sold for city taxes must, in order to redeem from the tax sale, repay the purchaser the amount so paid for "all other taxes, assessments or benefits," etc., with interest.

So that, it seems to us, it hardly admits of debate, that plaintiff's special tax-bill for curbing, was "a special tax or assessment" to which the city charter expressly provides the title acquired by defendant under his city tax-deed should be subject.

We rule this point against appellant.

III. But it is said there are certain "special taxes and assessments" imposed by the city and State and county for and belonging to the public itself to which the charter provision refers, and it does not include tax-bills or specialException: taxes or assessments issued or made for the benefitContractor. of contractors doing public work. We do not so read the charter. It is not so limited. It says the title under such tax-deed is subject "to all unpaid state, county and city taxes, general and special taxes or assessments," without reference to whether they are imposed directly by the public for its benefit, or imposed by the city for the benefit of contractors to pay them for making public improvements. We rule this point against appellant.

IV. But, it is urged that the city cannot exist without general city taxes, and that to make special tax-bills a lien superior to the title acquired by a purchaser at a tax sale to collect general city revenue would make the tax-bill a superior lien to that of the city for its general taxes, and wouldImpairment of thereby impair the necessary taxing power of theTaxing Power. city, which cannot be authorized, even by a provision of the city charter. We do not take this view. There is no provision of the Constitution pointed out with which such a provision of the charter comes in conflict. Indeed, there is no constitutional provision that general city taxes shall be a lien of any kind against real estate. Whether they should be a lien, and the nature and character of such lien, and the nature and character of the title the grantee in a collector's tax-deed should acquire, was purely a matter of local concern, as to which the charter of Kansas City was paramount and controlling. [State ex rel. v. Field, 99 Mo. 352.] We rule this point against the appellant.

We think the case was well tried by the learned lower court, and its judgment is affirmed. Lindsay, C., concurs.