CHAPTER 3.

PERSONAL LIABILITY FOR A LOCAL TAX.

or that it

We have seen in the foregoing chapters that this inherent power of taxation is limited by the Constitution. First, we have this express limitation: "All property subject to taxation must be taxed in proportion to its value." We have seen that this power of taxation is further limited: A state statute purporting to authorize a city or town to tax persons or property beyond its corporate limits is void as an authority on the ground that it takes private takes private property for public use without just compensation takes private property for private use. We have in the third place considered the taxation features of our condemnation laws that the advantages as well as the disadvantages shall be considered in estimating "just compensation," and that a statute allowing a deduction from this "just compensation” of benefits or advantages, general in their character, not special, peculiar, exceptive, is void, because as a taxlaw it takes private property for public use without just compensation. We come now to a fourth limitation on this power to tax, and that is in the constitutional validity of a law imposing a personal liability for a local tax. A local tax-law imposing a personal liability on the owner of property is invalid. It takes private property for public use without just compensation.

The City of St. Louis to the use of Seibert v. Allen, 53 Mo. 44, is a case wherein the personal liability

feature of statute laws for local taxation is considered. Suit was brought to enforce the collection of special tax-bills for macadamizing the Gravois road in front of the property of defendant Allen. The tax-bills were made a charge on the land according to frontage on the road, and the statute in form authorized a personal judgment against the owner of the property. The court rendered judgment on two tax-bills jointly against two lots or distinct parcels of land, thus making each parcel subject to a lien for the amount of both tax-bills in place of each parcel being charged only with its share. So much of the judgment as was a lien was remitted, and thereupon a personal judgment was rendered against Mr. Allen. After an unsuccessful motion for a new trial, he appealed.

In rendering the opinion, the court observe that in City of St. Louis to use of McGrath v. Clemmons, 36 Mo. 467, City of St. Louis to use of Lohrum v. Coons, 37 Mo. 44, Fowler v. City of St. Joseph, 37 Mo. 228, and Inhabitants of Palmyra v. Morton, 25 Mo. 593, personal judgments were rendered against the owners of the lands taxed under statutes in form authorizing such judgments, but the constitutional power to authorize a personal judgment was never discussed or decided. The court quote from Taylor v. Palmer, 31 Cal. 240, thus:

"To say that the owner of land bordering upon an improved street can be made personally responsible for the payment of the improvement, is equivalent to saying, that his entire estate, real, personal and mixed whether bordering upon the street or remote from it, whether benefited or not, shall be held responsible for the tax."

After some observations as to the foundation of the right to levy taxes of this kind this court says (p. 55):

"It will not be presumed, that it was ever intended

that a corporation in the exercise of this high prerogative should absorb the whole value of a person's property, and then come on him for the deficit. The very idea of such an assumption on the part of either the city or the state legislature, would be sufficient to startle one who had even the most crude notion of the objects and purposes of a just or enlightened government. The idea that a city could improve a street and assess the property benefited thereby and sell the entire property and then go on the owner, who may reside out of the city, and sell his property there to pay the balance of the assessment, and this all in consideration of the benefit conferred on his property, which was already sold, would seem at least in its results like taking the property of the owner and converting it into public use without any just compensation. I do not believe that by this indirection you can do that which is forbidden by the Constitution if directly done. If a personal judgment can be rendered in such case, all this may happen. It is true, it is not likely to happen, but the fact, that it may possibly happen, is enough to condemn the law."

If this personal judgment is to stand, execution may issue and all of Mr. Allen's property in St. Louis may be sold, and yet the execution may be returned unsatisfied in part; an alias execution may be issued to Jackson county, Missouri, and his farm lands in Jackson county (distant more than two hundred miles from St. Louis and this Gravois road, and in no way benefited by this macadamizing on the Gravois road in St. Louis) may be sold and his title and property forever pass from him. This sale and conveyance (in invitum) of Mr. Allen's farm lands in Jackson county, Missouri, remote from the street macadamized and not benefited by that macadamizing, constitutes a taking of

Mr. Allen's farm lands in Jackson county, Missouri, for public use without just compensation. The statute attempting to authorize it is invalid. In all execution sales the courts have control over their own process and will so control execution sales as not to sacrifice the

property of the execution defendant. The presumption is that property will sell at public auction for its full value. In fact one of the ways to ascertain the value of property is to sell it publicly at auction. This St. Louis tax-law is invalid because it takes "private property for public use without just compensation." The law is unconstitutional in the particular indicated.

It seems the court here did not indulge the conclusive presumption that the property was benefited to the full amount of the tax-bills.

Higgins v. Ausmus, 77 Mo. 351, et seq. (A. D. 1883), is another case involving the constitutional validity of local taxation laws, where such effect anything except a lien or charge on the particular lot on the street. Ausmus the defendant and appellant was the tax collector of the town of Linneus in Linn county, Missouri. The tax collector was by law authorized to seize and sell personal property to pay any land tax. (This is the statute law generally throughout the United States.) The tax-books were prima facie evidence (by statute) in favor of the collector and were prima facie authority to seize and sell (the same as on execution) personal property to pay a land tax. Higgins the plaintiff owned a lot in Linneus in Linn county, Missouri. A sidewalk was constructed under ordinance and contract in front of Mr. Higgins' lot, the cost of which was under the statute a lien or charge against the lot. General taxes were levied on this lot. The general tax and the local tax were delinquent and were in the hands of defendant Ausmus as collector for col

lection. Mr. Higgins paid his general taxes, but he refused to pay this sidewalk tax amounting to $8.64, claiming as a defense that he had the right to make the sidewalk himself and he was given no opportunity to do so. Ausmus, the collector, having the tax-books in his possession, seized two stoves belonging to Mr. Higgins and was proceeding to sell the stoves to pay this sidewalk tax. Mr. Higgins replevied the stoves before a justice of the peace, where he had judgment in his favor, as also in the circuit court on appeal by defendant Ausmus, the collector. The case, although it involved only $8.64, was appealed to the Supreme Court of the State where the judgment was affirmed. Defendant Ausmus asked an instruction in the trial in the circuit court to the effect that "The tax-book is sufficient to authorize him [the collector] from the taxbook alone to enforce the payment of its taxes by levy, seizure and sale of personal property for due and unpaid taxes," and that the finding must be for the defendant. This was refused, excepted to, and assigned for error in the Supreme Court. It seems from the evidence that this special tax was placed on the taxbooks by the collector without authority, and therefore the tax-book had no authority by law like an execution. The court hold that upon either of the two views the judgment must be affirmed. The statute is held invalid as an authority. The opinion on the constitutional question is thus (p. 353):

"There can be no question but that a tax-book, emanating from proper authority, and placed in the hands of one authorized to collect the taxes therein contained when it came to his hands, would be a valid process and authorize the collector to levy upon property of a delinquent taxpayer to enforce payment, but when it appears, as we think it does in this case, that the special tax for the non-payment of which the stoves in ques