City of Linneus v. Locke

Philips, P. J.

This is an action to recover a special tax, claimed to be owing the plaintiff, a municipal corporation of the fourth class, for the cost of a sidewalk along defendant’s property, built by the city.

The petition is in the usual form. The answer, after admitting the corporate existence of plaintiff, and the ownership of the property by defendant, tendered the general issue as to all the other allegations of the petition. To sustain the issues on its part the plaintiff, after *410 proof that E. W. Wilcox was city clerk, read in evidence the following tax certificate:

“ State op Missouri, ) “ County of Linn, j ’

“City Collector’s Oppioe,

“Linneus, Mo., May 20, 1886.

“ Mrs. M. C. Locke, to City of Linneus, Dr.

“Being the amount, as herein set forth, of special taxes, assessed for the year 1886, on the following described property, situated in said city, as the same appears upon the tax books of said city, for said year.

“I, E. W. Wilcox, clerk of the city of Linneus, Mo., hereby certify that the above is a true copy of the' original tax bill in the matter of special taxes due on the above described property.

“ Witness my hand and official seal this May 20, 1886.

[Seal] E. W. Wilcox, City QlerJc.”

Plaintiff here rested. The defendant demurred to the evidence, and the court sustained the demurrer. Thereupon the plaintiff asked to recall the witness, Wilcox, and propound to him the following question: “Are the taxes-in suit, sidewalk taxes for a sidewalk built in front of the lot described in the certified tax bill read in evidence ? ”

The court excluded the question, whereupon defendant submitted to a non-suit; and, after an in effectual motion for a new trial, prosecutes this writ of error.

I. This action is based on section 4942, Revised Statutes, which is as follows:

“ The board of aldermen shall have power, by ordinance, to levy and collect a special tax on the owner or occupier of property, lot or lots, on any street, lane, *411 avenue or alley within such city, for the purpose of grading, making, paving, guttering, curbing and repairing streets, alleys, avenues, crossings or sidewalks in front of, or along, the same; and if any owner or occupier of such property, lot or lots, shall fail, neglect or refuse to grade, make, curb, gutter, pave or repair such street, alley, avenue, crossing or sidewalk, when required by ordinance, the board of aldermen shall cause the same to be done in the manner and with the material to be designated in such ordinance, at the owner’s or occupant’s expense, and collect by a special tax bill, which shall be a lien on the property and shall be collected as provided by ordinance ; and in any proceeding to collect such special tax bill, the tax bill, or a copy thereof, certified by the city collector or city cleric, shall be prima facie evidence that the laws and ordinances have, in all respects, been fully complied with, and that the amount specified is justly and legally a lien on the property specified and, due 'by the person against tohom the same appears charged in said tax bill, and in any suit or proceeding to enforce the collection of such special tax bill, it shall only be necessary for the city to charge in the petition that such an amount is due by the defendant to plaintiff for a certain improvement, specifying the same, made by virtue of certain ordinances, giving their titles and dates of adoption only.”

While this statute makes the certified tax bill prima, facie evidence of a due compliance, on the part of the city, with the pre-requisite steps to an imposition of such tax, it must be such a certificate as is contemplated by the statute, and not any paper which the board of ' aldermen, or the pleader, may choose to designate a tax bill. The rule at common law, which generally is the best exponent of conservative wisdom for the enforcement of obligations and the preservation of property rights, indulged no presumptions in favor of the regularity of tax bills ; but required of the party seeking to enforce their collection strict proof of a compliance with *412 -every necessary step leading to the creation and imposition of the tax. Morton v. Reeds, 6 Mo. App. 64 ; Nelson v. Goebel, 17 Mo. 161 ; Corn v. City of Cameron, 19 Mo. App. 574 .

When the statute substitutes the mere certificate of the party in interest as presumptive evidence of the existence of the tax and the regularity of its due creation, the taxpayer certainly has the right yet left to him, to demand that this ex parte evidence should at least be definite, and show on its face that it was issued under some competent authority and for some specific purpose. As said by Gannt, J., in Carroll v. Eaton ( 2 Mo. App. 483 ): “ The tax bill is to be prepared in a certain manner, and will be presumed to be correct, leaving to the defendant to show error in its assumptions. But what these assumptions- are, must appear on the face of the bill, or else no intelligent meaning can be given to the provision that the law makes a presumption in their favor.” So it was held in that casé, that a tax bill, under the charter in question, which failed to disclose the principle on which the charge made was assessed, .showing neither the frontage nor the value of the property assessed, and which failed to show the amount of the work, and the like, does not become evidence under the charter making the tax certificate prima facie proof. So it was held by that court, in Heman v. Green ( 15 Mo. App. 593 ), “that no recovery can be had on a tax bill'for repairing sidewalks which does not substantially locate the place of repair.”

There is nothing whatever on the face of the certifi-cate, 'in this case, to show that it was predicated of any ordinance for building a sidewalk, or that the tax was imposed for building a sidewalk, or anything else. On the contrary, it recites, that it is a special tax bill for the year 1886 on the lot. For what purpose, or on what authority, is not even alluded to. It is merely recited that it is a special tax, “as the same appears on the tax books of said city for said year.”

*413 This rather conveys the idea that it was some such tax as properly pertained to an annual assessment than one arising on a special ordinance for building a sidewalk along defendant’s property. It was, on its face, just as applicable to a special tax imposed for any other purpose as the one in question.

Nor do we think the additional fact, sought to be developed by the question propounded by plaintiff to' the witness, after the demurrer to the evidence was sustained, helped to make out a prima facie case. The inquiry was, merely, whether the tax was “for a sidewalk built in front of the lot” in question? Built by whom, under what authority, and when built? Nothing of the sort appears.

The statute says, the board of aldermen shall “collect by a special tax bill.” If it were conceded that the plaintiff could proceed to make collection without the tax bill, it would be remitted to common law rules of making out a case. An ordinance should have been produced directing this improvement, and every essential stép preliminary to the tax should have been shown by the plaintiff. It could not, in the manner attempted, by a single indefinite question, eke out an imperfect and incompetent certificate.

The judgment is affirmed.

All concur.