Inhabitants of Houstonia v. Grubbs

SMITH, P. J.

This is an action on a special tax bill. The village of Houstonia is a municipal corporation, organized and existing under the provisions of article 6, chapter 30, Devised Statutes. The defendant is a resident owner of certain lots in said village.

Statement. It appears from the agreed statement of the facts that the said village passed an ordinance providing for a wooden sidewalk on the side of a certain street in front of the defendant’s lots; that there was, at the time of the passage of said special ordinance, a general ordinance then in force, which provided the manner in which the village authorities should proceed to make any improvement required by any special ordinance; and that the expense thereof should be a lien against the property thereby benefited. It was further provided in said general ordinance *436 that tax bills should be issued against the property benefited for the actual expense of such special improvement, which should be prima facie evidence of the regularity of the proceeding, etc. It was further agreed that the village made the improvement and issued the tax bill sued on for the expense thereof against defendant’s lots in accordance with the provisions of said ordinance.

Municipal corporations: villages: sidewalks: no lien. The question raised by the- appeal is, whether or not the said tax bill is a lien against defendant’s lots for the expense of the said sidewalk improvement? The law is, that municipal corporations have no authority to create a tax lien by ordinance or otherwise where none has been expressly conferred upon them. Cooley on Taxation, 448; Philadelphia v. Grible, 38 Pa. St. 339. The ordinance previously referred to therefore was ineffectual to create a lien for the expense of the said sidewalk improvement. If a lien for the expense of the improvement existed it must have been created by statute.

Recurring to said article 6, chapter 30, Revised Statutes, it will be seen that section 1677 authorizes the board of trustees to have sidewalks constructed at the expense of the owners or occupiers of the adjacent lots. This section further provides that, if any such owner or occupier shall fail to make such improvement as required by ordinance the said board of trustees shall cause the same to be made and recover the expense thereof of such owner or occupier in the name of the village in any court of competent jurisdiction, etc. It is thus seen that this section creates no lien for the expense of the improvement. It provides that the village may recover such expense of the owner or occupier of the benefited property in an action in personam. Such a statutory provision is invalid. Neenan v. Smith, 50 Mo. 525 ; St. Louis v. Allen, 53 Mo. 44 ; Pleasant Hill v. Dasher, 120 Mo. 675 .

The next section — 1678—provides that, if a non-resident fail to make any improvement as required by the preceding *437 section, the board of trustees may cause such lot or lots to be sold to defray the expenses thereof in such manner as the board by ordinance may provide. If this section can be construed to create a lien by necessary implication it has no application to resident lot owners. Another section — 1679—■ provides that all general and special taxes levied by the board of trustees of any town upon any property therein in conformity to the laws of the state and the ordinances of the town shall constitute a lien upon the property upon which they are levied. This section in no way helps the plaintiff’s case, for the very manifest reason that the special tax sued for was not levied by the board of trustees upon the defendant’s property in conformity to any statute or valid ordinance. The statute authorized the expense of the improvement to be charged against the defendant personally, but not against his property. There was no statute authorizing the latter. If we entertained a doubt, which we do not, as to whether or not the statute authorizing street improvements to be made by the village board of trustees gave a lien for the expense thereof against the abutting lot owners, we should be compelled to resolve the doubt against the lien. Knapp v. Kansas City, 48 Mo. App. 485 ; Guinotte v. Englehoff, 64 Mo. App. 356 ; St. Louis v. Telephone Co., 96 Mo. 623 . An examination of the statute ■already referred to has not convinced us that in a case like this a lien is anywhere therein given, either expressly or by fair implication.

But it is contended that even if no express grant of authority of the kind claimed by plaintiff is contained in the charter it would be implied as one incident to the general welfare clause of such charter. It is sufficient answer to this contention to say that the general welfare clause of the charter, following as it does a long list of specific powers, can not be construed so as to enlarge such powers further than is necessary to carry into effect the specific grants thereof. Knapp v. Kansas City, ante, and authorities there cited.

*438 In no view of the case which we are able to take can the plaintiff’s tax bill be upheld.

The judgment of the circuit court will accordingly be affirmed.

All concur.