Buchan v. Broadwell
88 Mo. 31
Mo.
1885
Check Treatment
Nouton, J.

This suit wаs instituted in the circuit ■court of Jackson county to enforce the collection of four special tax bills. On the trial plaintiff obtained judg\ ment, from which defendant has prosecuted a writ of error to this court. A great number of errors have been assigned and we will only consider those which we deem to be material. It is objected that the court erred in overruling an application for change of venue based on *35the alleged prejudice of the inhabitants of Jackson county. It apрears from the record that the affidavit .attached to the application was sworn to by William •Broadwell, who was a mere formal and nominal party, .and the prejudice of the inhabitants was аlleged ‍‌​​​​‌​‌‌​‌‌​​‌​‌​‌‌‌​​‌​‌​​‌‌​​​​​​‌‌‌​‌‌‌‌‌​​​‍to be .against him alone, and it further appears that seven or eight counter affidavits tо that of Broadwell were filed, but what they contained does not appear. Under these circumstances we cannot say that error was committed in overruling the application.

Objectiоn was also made to the introduction of any •evidence under the petition, because it did not stаte a cause of action and did not plead the ordinance which .authorized the grading of the street, for the payment of which grading the tax bills were issued. This objection was properly overruled. It is provided by section four, article eight, of the city charter, that, in suits ■on tax bills “it shall be sufficient for the рlaintiff to plead the making and issuing of the tax bill sued on, giving the date and contents thereof, an assignment thereof in case of assignment, filing the same and allege that the party or parties made defеndants own or claim to own the land charged, or some estate or interest therein, as the case may be.” Tiie averments in the petition meet all the requirements of this charter provision and mоre, by averring that the grading of the street was done by virtue of a certain ordinance, giving its date and numbеr.

The defendants offered evidence tending to show that a majority of resident property ownеrs, ■owning a majority of front feet on the street graded had not signed the petition for grading the street. This objection was properly overruled for the reason that it is provided ‍‌​​​​‌​‌‌​‌‌​​‌​‌​‌‌‌​​‌​‌​​‌‌​​​​​​‌‌‌​‌‌‌‌‌​​​‍by section 8, article' 8, of the charter that “if the common council shall in the ordinance causing to be done the work рetitioned for, find and declare that the work has been petitioned for and the petition published according to law, such finding and declaration *36shall be conclusive for all purposes and nо special tax bill shall be affected by any defect in or objection to the-petition.”

The objection to the introduction of the tax bill was properly overruled. Section 4, article ‍‌​​​​‌​‌‌​‌‌​​‌​‌​‌‌‌​​‌​‌​​‌‌​​​​​​‌‌‌​‌‌‌‌‌​​​‍8, of the charter provides that ‘£ such certified bill shall in any action thereon, be prima, fasie evidence of the validity of the-bill, the doing of the work and of the furnishing of the materiаls therefor, and of the liability of the property to the charge stated in the bill.” The assignment of the tаx bills to plaintiff, as well as their execution by the city engineer, was shown. 38 Mo. 33; 35 Mo. 261; 37 Mo. 44. There is nothing in the constitutional objection made that non-resident property owners are discriminated against by section 1, article 8, of the charter, which-provides that “the common council on the petition of residents of Kansas City, who ‍‌​​​​‌​‌‌​‌‌​​‌​‌​‌‌‌​​‌​‌​​‌‌​​​​​​‌‌‌​‌‌‌‌‌​​​‍own a majority of front-feet on a street to be graded, may order the same to be-graded at the expense of the property owners.” When it is done the same rule of assessment applies to all the-property whether owned by residents or non-residents. 2 Dill, on Minx. Corp., secs. 752, 802. The legislature in the exercise- of its paramount control of the state could have authorizеd the council to have ordered the grading of streets at the expense of property оwners-without any petition. Railroad Co. v. City of St. Louis, 66 Mo. 228 ; Farrar v. City of St. Louis, 80 Mo. 379. In the case last cited, it is held in discussing the question of special assessments fоr street or local improvements, that the property is assessed with reference to-the benefits derived from the improvement; it is a tax on the benefits ‍‌​​​​‌​‌‌​‌‌​​‌​‌​‌‌‌​​‌​‌​​‌‌​​​​​​‌‌‌​‌‌‌‌‌​​​‍rather than on the property. While the рroperty of defendants, before the street in question was graded was valued at five hundred dollars, thе evidence-tended to show that after the grading. of-the street it-was valued at $3,000.

It is also insisted that the judgment was erroneous-*37in that it bears fifteen рer cent, interest. This point is not well taken. By section 4, article 8, of the charter, it is provided that ‘ ‘ еach tax bill shall bear interest from its issue at the rate of fifteen per cent, per annum if not pаid within thirty days after the issue thereof.” And when judgment is recovered on such tax bill it is provided that “the judgment shall bear interest at the same rate as the tax bill.” Other objections of a like character to those we have considered are urged on onr attention, but we omit notice of them farther than to say that they do not in any way affect the merits of the controversy, and as the judgment is for the right party on the whole record, it is hereby affirmed, with the concurrence of the other judges.