Municipal Securities Corp. v. Kansas City

delivered the opinion of the court.

The plaintiff in error brought suit in the Circuit Court of Jackson County, .Missouri, to recover on certain tax bills issued to one Michael Walsh, its. assignor, foi the

The city answered the amended petition, and stated therein that on March 15, 1902, it did issue special tax bills to Michael Walsh as set out in the petition; and that Walsh on March 15, 1902, executed and delivered to Kansas City a full and complete release on account of any claim arising on said tax bills as provided in § 16, Article 9, of the charter of Kansas City. The answer further sets up that the charter of Kansas City provides a method by which the city shall pay its share of any public improve-. ment on land owned in fee by it; that no certificate was issued by the city on the lot in question or any other lots described in the petition; and that it was not found that the lots mentioned in the petition were owned in fee sim-

At the trial the tax bills sued upon were introduced, indorsed as follows: “Assignment. For value received - — assign this Special Tax Bill and the lien thereof to Municipal Securities Corporation, and-Authorize to sign — name — to the receipt. Michael Walsh.” The record does not disclose when this assignment was made, and it bears no date.

Upon trial in the Circuit Court the court held as a. matter of law that Kansas City was an agency of the State of Missouri, and had by its official acts, ordinances and conduct appropriated to the public use the property and property rights of the plaintiff consisting of valid and subsisting hens upon certain real estate without making just compensation, or any compensation therefor, and thereby deprived the plaintiff of its property without due process of law contrary to the Fourteenth Amendment and contrary to the bill of rights of the State of Missouri, and rendered judgment for the plaintiff.

The case being taken to the Supreme Court of Missouri the. judgment of the Circuit Court was reversed (265 Missouri, 252), and the case was brought to this court because of an alleged violation of the protection afforded . by the Fourteenth Amendment as the result of the alleged wrongful appropriation of the plaintiff’s property, The Supreme Court of Missouri after reciting the facts, held that the suit was upon the tax bills, that as Walsh’s agreement with the city and the ordinance itself provided that the city should not be liable to pay for the work or any part thereof otherwise than by the issue of special tax bills, and because the charter of the city provided that the city should in no event or in any manner be liablé for or on account of the work done in constructing the sewer, but that the work should be paid for in special tax bills which would be a lien on the property described in them,

“The suit here is upon a tax bill in some aspects and upon a tort as for conversion in others. The petition is sui generis, being possibly what is meant by learned counsel for plaintiff when they say of it in their brief that it is ‘typical in form.’

“We need not consider whether a recovery could have been had upon tort, as for the alleged conversion, or destruction, of the property upon which ordinarily the lien of the tax bills would have been fixed. The assignment is not of the tort, nor of the< contract, nor of the right to recover upon a quantum meruit, hut of the tax bill pure and simple, for it says: ‘For value received-assign this special tax bill and the lien thereof to Municipal Securities Corporation,’ etc. The lien assigned was upon the lots and not against defendant; but the law is fairly well settled that the title of the city to these lots for use as a street attached by relation back under the facts here to the date of the judgment confirming the verdict of the jury, to-wit, September 14, 1901, a date long prior to the issuing of the tax bills, which were issued March 15,1902. (In re Paseo, 78 Mo. App. 518 .) The best that can be said for plaintiff’s insistence touching’ this lien is that the lien of the tax bills attached conditionally to these lots; the condition of attachment being that the defendant would dismiss its condemnation case short of final judgment and payment of the money into court, as under the general law, absent a charter provision forbidding, it had the right to do. (State ex rel. v. Fort, 180 Missouri, 97; Rail

road v. Second Street Imp. Co., 256 Missouri, 1. c. 407.) The city did not so dismisá the proceeding and the right of the city, temporarily suspended, as we may express it, by the appeal, attached upon the affirmance here of the judgment of condemnation as of the date of such judgment (In re Paseo, supra), and had the effect to convert these lots of private persons into integral parts of the highway, or street system of Kansas City, and to take them out of the category of property of private persons upon which liens of tax bills would attach; but since these lots became parts of public highways the judgment condemning them did not have the effect of converting them into that class of city property, the sewering of which created a liability against the city for which certificates evidencing such liability against the city were" issuable by charter. (Sec. 14, Art. 9, Charter of Kansas City, 1898.)

“If Walsh himself had sued for the tort of conversion alleged in effect by the briefs and contentions of counsel for plaintiff, a different and much more serious question would confront us; but it seems idle to insist that upon the petition here and upon the assignment above quoted, that plaintiff may recover upon the theory of tort. We have seen already how futile arid idle is the view that plaintiff may recover upon contract. Moreover, no such tort is assigned. Nothing is assigned but the tax bill and the lien thereof. . . . But be this as may be, the point of peculiarity in the instant case that plaintiff cannot in any event recover upon any theory of contract, but that it must recover, if at all, upon the theory of liquidated compensation for a tort, which tort was not assigned to it and on which it does not sue, destroys in our view any helpful analogy between the above cases from other jurisdictions and this one at bar.”

As the matter above extracted from the opinion of the Supreme Court of Missouri shows, that court held the

It follows that the writ of error must be dismissed for want of jurisdiction, and it is

So ordered.