Michael v. City of St. Louis

20 S.W. 666, 112 Mo. 610, 1892 Mo. LEXIS 250

• Court: Supreme Court of Missouri
• Decided: December 12, 1892
• Status: Published

Opinions

Brace, J.

This is an action to enjoin the collection of certain several assessments for benefits to the property of plaintiffs, in the matter of the opening of Kosciusko street in said city.

The plaintiffs in their petition, after reciting the proceedings for the condemnation of property for the purpose of showing the amount of damages, and to whom awarded, the amounts severally assessed against the property of plaintiffs for benefits, and the issuance of special tax bills against the property of each of them for the amounts so assessed, allege for their cause of action that the condemnation proceeding was unlawful “for the reason that said part of Kosciusko street had, long prior to the filing of said petition, been dedicated by the owners of said property to said city, and by the said city appropriated and used as a public street for more than thirty years last past, with the consent of all the persons who formerly owned the property so appropriated and used; that the commissioners in said condemnation proceedings committed error in awarding damages to the parties to whom damages are therein awarded for the reason that said parties, nor any one of them, were the owners then or at any tiine, of the property so pretended to have been condemned, and for the further reason that the parties through and under whom they pretended to claim had long since relinquished said property to the said city, and acquiesced in the use by the city of said property as a public street. Said plaintiffs further say that they were not parties to said condemnation proceedings, had no notice thereof, and were, therefore, unable to prevent or protest against the wrongful acts committed in said proceedings; that said special tax bills are a cloud upon the title of the property of these plaintiffs against which said special tax bills, being so in the hands of an officer of the law for collection, these plaintiffs and others against whom such tax bills have been issued are being and will be harassed by demands of said collector for the payment thereof, and subjected to a multiplicity of suits by said collector.” Wherefore plaintiffs say that they have no sufficient or adequate remedy at law and pray that the city and its officers be enjoined from suing upon or collecting said special tax bills.

A general demurrer to the petition was sustained by the court below, and from the judgment' entered thereon the plaintiffs appeal.

The charter provisions and ordinances under which the benefits were assessed against the property of the plaintiffs in this case came under the consideration of this court in the recent case of City of St. Louis v. Ranken, 96 Mo. 497, and we there held that, when a tax for benefits is to be assessed under those provisions and ordinances, the owner has the right to be heard upon the question of the amount to be assessed against his property before a charge therefor • finally attaches, to his property and to notice of such right, such as is appropriate to the nature and character of the proceeding ; that the notice provided for in the ordinances of the city is sufficient notice, and when the owner is so. notified and the circuit court has taken final action upon the report of the commissioners, and the assembly has appropriated the money to pay the damages for the property taken, the assessment becomes final and conclusive upon the question of benefit to the taxpayer, and, if such notice be not given, the assessment, is void.

The plaintiffs set out in their petition facts which if they had been presented to the court in the proper manner, and in time during the pendency of the condemnation proceeding in the circuit court would have precluded the assessment of any benefits against their property. The proceedings of that court are matters of record. It is essential to a valid assessment that the record of the court show that the plaintiffs were duly notified in the manner provided in the ordinances, or voluntarily appeared to the proceeding; if it is not so shown, the assessment is void, and there can be no recovery upon the tax bill. In the suits which they complain the city is about to institute for the collection of such tax bills they have a full, complete and adequate defense of record, without any necessity for resort to extrinsic evidence to make it good, or for invoking the assistance of the powers of a court of equity. Each of the plaintiffs, if the fact of want of notice to him be true, has this defense, complete and independent, for himself; it is neither strengthened nor weakened by that of either or all of his other coplaintiffs, or any number' of them, and they have no interest in common to be protected by it; each can make it for himself, and neither can make it for the other; nor does it matter to any of them whether another makes it or not. One suit will decide it for each of them; consequently there is no more ground for the interposition of a court of equity to protect any of them on the ground that either or any of them may otherwise be harassed by a multiplicity of suits, than for the purpose of preventing a cloud by way of incumbrance upon the title to their property, which, upon their own theory of the facts in the case, would long since have been dissipated, in the due and ordinary course of proceeding under the law, had they not interposed to restrain it.

The judgment is affirmed.

All concur.