tion were levied upon, was for street or sidewalk improvements in front or opposite defendant's real estate, it did not confer upon the collector any authority to levy upon defendant's personal property, it having been held by this court in the case of City of St. Louis v. Allen, 53 Mo. 44, that such a special tax or assessment can only be enforced against the said real estate, and that a personal judgment for such a tax against the owner is null and void, and statutes authorizing such judgments are unconstitutional and void. It was also so held in the case of City of Louisiana v. Miller, 66 Mo. 467."

The rule of constitutional law that "All property subject to taxation shall be taxed in proportion to its value," is not infringed.

"Private property shall not be taken for public use without just compensation," is the rule of constitutional law violated.

The City of Pleasant Hill v. Dasher, 120 Mo. 675, affords another illustration that a tax law may infringe the rule of constitutional law that "Private property shall not be taken for public use without just compensation."

The City of Pleasant Hill had a special charter from the Legislature of the State (Laws 1858-9, p. 155). The eleventh section of that act was as follows:

"The council shall have power to cause the owners or occupiers of real estate to pave and repair sidewalks adjacent to the property which they may own or occupy; and if any such owner or occupier shall fail to pave or repair the same, as required by ordinance, the council may cause the same to be done, and may recover the full expense thereof by an action of debt in the name of the corporation."

In Missouri, after August 2, 1875, the time the new Constitution went into effect special charters can not be

granted by the Legislature to cities, towns or villages (Const. art. 9, sec. 7). These municipal corporations must be classified into classes not exceeding four, and the power of each class shall be defined by general laws. And municipal corporations then under special laws could not be compelled to give up their charters. Laws were to be passed to authorize them to elect to come under the general laws.

The City of St. Louis to use v. Allen was decided in the year 1873 and this decision rendered invalid nearly all the special charters in the State granted from the time of the admission of the State into the Union. Cities, towns and villages were organized also under general laws. This action of debt was a prominent feature of all these laws. In fact, an action of debt seems to have been (as at common law) the appropriate action to recover any penalty or any amount due by statute. In March, 1887, fourteen years after the decision in City of St. Louis to use v. Allen, the Legislature of Missouri passed an act (Laws 1887, p. 95) that all cities of ten thousand inhabitants or less, acting under a special charter, may cause owners or occupiers to pave sidewalks, making the cost a lien on the lot and providing for its enforcement in court. The court say (p. 680): "The act of 1887 was no doubt passed in view of what was said by this court in the case of the City of St. Louis to use v. Allen, supra, and repeated in subsequent cases."

In approaching the subject under consideration the court says:

"The question then arises, whether the city has and possesses both remedies, or whether the enforcement of the lien is the only remedy? In short, does the act of 1887 repeal section 2 of the Charter?"

"In disposing of this question, it is well to bear in mind the former adjudications of this court. Neenan

v. Smith, 50 Mo. 528, was an action to collect tax-bills for macadamizing a street. It was held that plaintiff was not entitled to a general judgment against the owner of the land, and doubt was expressed whether the Legislature had the power to authorize a general judgment in such cases. The authorities on this question were reviewed in the subsequent case of St. Louis to use v. Allen, 53 Mo. 44, and it was held in clear and distinct terms that the Legislature had no power to authorize a personal judgment against the property-owner in suits to recover these local assessments. The ruling made in that case has been approved in a number of subsequent cases." The rule of constitutional law infringed is that "Private property shall not be taken for public use without just compensation."

This tax-law authorized a personal judgment and was therefore unconstitutional and void. The general judgment was a lien on all lands and all these lands could be sold and the title divested from the owner by sheriff's deed. If it be thus unconstitutional to divest his title to property under a general judgment declared by statute to be a lien to be enforced by execution and sale, can the Constitution be evaded by the law authorizing the tax-bill to be a lien just like the general judgment lien and effect a divestiture of title in the same way? With the general judgment, the lien is unconstitutional. How can the lien be made better without the judgment, execution sale and sheriff's deed? Can the lien be made any better without the judgment than with it? We have been dealing with tax-bills made liens on abutting property only. If the Constitution prohibits a general judgment, a general judgment lien, an execution, levy, sale and sheriff's deed, will the Constitution permit a statute accomplishing the same results by authorizing a tax-bill and making it a lien on all property on which the general judgment is a lien?

The intention of the Constitution as determined in these decisions is, that no property, except abutting property, shall be subjected to this local tax. Can the Constitution be evaded by enacting a law making the tax-bill a lien on all the real estate and personal property of the owner in the town or city? If the tax-bill lien may be extended a foot beyond abutting property, it may be extended a mile. Mr. Higgins' stoves could not be taken (Higgins v. Ausmus, 77 Mo. 351), for that eight-dollar sidewalk tax-bill. Could they take a lot two blocks away, not abutting on the street? Could they take his wagon and team or his farm? Does the Constitution prohibit a name or a thing? Is it competent for the Legislature to enact a law (as was at tempted in the proposed charter for Kansas City, defeated by popular vote in March, 1905), authorizing an extension of the lien beyond abutting property, whether benefited or not? If the city council may, by its charter as its law, tax abutting property for grading a street in front of it when the grading is a damage to that abutting property, no reason can be perceived why distant property not damaged should not be taxed. If the law may make the tax a lien on land a foot distant from abutting property, it may make it a lien on land distant one mile, or anywhere in the city.

CHAPTER 4.

EFFECT OF THE DECISION IN THE CITY OF ST. LOUIS TO USE

OF SEIBERT V. ALLEN, 53 Mo. 44.

A little attention to the history of the law and the development of the rights of the individual as against the public, the king, the State, the United States, will show the importance of this decision.

Under the English common law there were scarcely any exemptions from execution sales on judgments against the owner. The person was sacred; so nothing could be taken from the person. But the execution was against the man, his goods and chattels, and in Missouri his real estate. A homestead does not exist except by force of statute law so far as being safe against the execution creditor. In the early history of the law the execution creditor took all the personal property, all the real estate, all property of every kind, and then sent the execution defendant to jail, there to remain till the debt was paid.

Under such a state of the law, it was or would have been almost an idle ceremony to make these local taxes a lien on the land. Hence, the action of debt was given in almost all cases. Thereby all that the in

dividual had and all he might acquire afterwards was subject to this charge or tax made by the king, the state, the United States. "The owners of the lots charged therewith [the cost of the improvement] shall be bound to pay said costs charged like liabilities contracted by themselves, and may be sued therefor accordingly," says the St. Joseph charter as late as A. D. 1860, and quoted in City of St. Joseph v. Anthony, 30 Mo. 537, at 538, bottom.