City of Joplin ex rel. Carthage Dimension & Flag Stone Co. v. Hollingshead, 123 Mo. App. 602

City of Joplin ex rel. Carthage Dimension & Flag Stone Co. v. Hollingshead

123 Mo. App. 602 | Mo. Ct. App. | 1907

JOHNSON, J.

Action on two special taxbills issued by a city of the third class. The subject of the first count in the petition is a sewer bill and that of the second a bill for the construction of a sidewalk. Plaintiff recovered judgment on each count.

It is insisted by defendant that neither count contains the statement of a cause of action. In the first, *605after alleging the incorporation of the city of Joplin as a city of the third class, the petition states “that on tie 11th day of March, 1899, the said city of Joplin by its proper officers duly authorized so to do, issued to one, E. J. Overly, a certain special taxbill and that said E. J. Overly thereafter and before the bringing of this action for a good and valuable consideration duly assigned the said special taxbill to the said Carthage Dimension and Flag Stone Company, a copy of which tax-bill together with the indorsements thereon is as follows.” Then appear the contents of the taxbill and assignment thereof, after which it is alleged that defendant is the owner of the lot against which the bill was issued. The second count is identical in form with the first.

The recitals of the taxbills thus pleaded show the performance of the conditions essential to their validity. The pleading is sufficient to state a cause of action. The statute, under which the bills were issued, contains the provision, “Such special taxbills shall in any action thereon be prima facie evidence of the regularity of the proceeding for such special assessments, of the validity of the bill, of the doing of the work and furnishing of the materials charged for, and of the liability of the property to the charge stated in the bills.” [R. S. 1899, sec. 4858.]

-Defendant, noting the absence from the statute of any provision similar to that found in Revised Statutes 1889, relating to cities of the second class (section 1407), which declares that “it shall be sufficient for the plaintiff to plead the making and issue of the taxbill sued on, giving date and contents thereof, and assignment thereof in case of assignment, filing the same, and allege that the party or parties made defendants own or claim to own the land charged,” etc., argues that the provision under consideration, which deals only with the character of the taxbills as evidence, has no relation to the plead*606ing of a cause of action founded on such taxbill and therefore the statement in the petition of such cause of action must be governed by the general rules of pleading, which require the allegation of constitutive facts and do not permit the pleader to compel his adversary to resort to tbe inspection of instruments filed as exhibits or copied into the petition to ascertain what facts are relied on to sustain the cause of action asserted. The answer to this argument is that the prima facie character of the taxbill as evidence raises a presumption in favor of the validity of the'instrument that abides with it from the time it is issued through the course of its existence or until the presumption has been overthrown by affirmative proof to the contrary. When issued in the manner and form prescribed by statute, verity is stamped on its face. A suit brought for its enforcement ■is one on the taxbill and not for the.work and labor done and materials furnished, and, as the taxbill is presumptively valid, the constitutive facts necessary to be alleged in stating the cause of action it supports are thus stated in City of Carthage v. Badgley, 73 Mo. App. 1. c. 125, where we had this statute under consideration on the precise point now before us: “First, the making of the taxbill; second, the contents of such taxbill with dates thereof; third, the assignment; fourth, the filing of the same; and fifth, that the defendant owned the lot described and against which the lien was sought to be enforced.” We mentioned in that opinion the similarity between the statute under consideration and section 1407, Revised Statutes 1889, evidently concluding, as we do now, that the express provision in the latter section relating to pleading was but declaratory of the general rule applicable.

The same view was entertained by the St. Louis Court of Appeals in Vieths v. The Planet.Co., 64 Mo. App. 207, where the taxbill was issued under a section of the St. Louis charter that contained a provision sim*607ilar to that under consideration and did not contain one expressly relating to pleading. • The cases cited by defendant, Irvin v. Devors, 64 Mo. 625; Hernán v. Allen, 156 Mo. 534; Stifel v. Dougherty, 6 Mo. App. 441, when properly considered, do not militate against this view. In none of them does it appear that the contents of the taxbill were pleaded, nor does the petition allege all of the facts essential to their validity. A taxbill to carry the presumption of validity must contain the recitals prescribed by statute and the facts therein evidenced must appear in the petition either by express averment or in the pleaded contents of the taxbill. This is the extent of the holding in the decisions mentioned. All that is decided in the cases cited by defendant, of which Vaughan v. Daniels, 98 Mo. 230, is a type, is that where the taxbill is filed with the petition as an exhibit its recitals do not aid the allegations in the statement of a cause of action, but this conclusion is based on the rule that exhibits filed with a pleading are no part thereof and does not apply where the contents of the taxbill are pleaded in the petition. The point must be ruled against the defendant.

It is contended by defendant that the ordinance under which the sewer was constructed does not specify its dimensions and does not sufficiently designate the materials for the same. It provides that “Said sewer shall be constructed of 570 lineal feet of 8-inch vitrified clay pipe, 48 Y junctions laid 25 feet apart, one manhole, one automatic flush tank of 316 gallons capacity, with all other necessary appurtenances.” The statute requires that such sewers “shall be of such dimensions and materials as may have been prescribed by ordinance . ' . . and. shall have all the necessary laterals, inlets, catch basins, manholes and other appurtenances.” [E. S. 1899, sec. 3848.] The dimensions of the sewer proper are clearly and definitely stated, so is the material. The number of the Y junctions and their places in the *608construction likewise are given. The dimensions of these connecting pieces necessarily were controlled by the size of the sewer pipe of which, when laid in place, they became a part, and the material of which they were to be made was of course to be the same as that in the remainder of the sewer. But it is said that the failure of the ordinance to specify the dimensions and material of the manhole, flush tank and other appurtenances is a fatal defect. The statute does not provide for the statement of such facts in the ordinance, as is apparent from its phraseology. The objection is fully answered in the following quotation from the opinion in City to use v. Owen, 110 Mo. 1. c. 155, “though the charter requires that the size of the sewer to be constructed shall be prescribed by ordinance, yet there is no such requirement in regard to the inlets, manholes, etc., nor of the material of which they are to be constructed. These appendages to the sewer may well be regarded as matters of detail, which, not being required to be specified in the ordinance, it is not necessary thus to insert them.”

The sidewalk taxbill is attacked because “the ordinance under which the sidewalk was constructed is . . . void for the reason that the city council did not before its enactment and the letting of the contract declare by resolution that the work of building was necessary to be done.” Section 5860, Revised Statutes 1899, provides “When the council shall deem it necessary to pave, macadamize, gutter, curb ... or otherwise improve any street, avenue, alley or other highway, or any part thereof . . . the council shall by resolution declare such work necessary to be done and cause such resolution to be published in some newspaper published in the city for two consecutive weeks.” But the making of sidewalks is expressly excluded from the operation of this provision in a subsequent portion of the same section, “No such publication shall be necessary for the making of any sidewalk, but upon the petition *609of any ten citizens of the city the council shall have power by ordinance to make contracts for the constructing of sidewalks including grading therefor.” The only reasonable construction to be placed on the section is that the declaration by resolution and its publication were regarded as successive steps in the single act of advising the public of the necessity of the improvement contemplated and the term, “no such publication,” used in the clause removing sidewalks from the scope of the provision obviously was intended to dispense with the resolution as well as with the publication thereof. This construction is supported by the context which, without restriction or qualification, gives the council the power by ordinance to contract for the construction of a sidewalk on the petition of any ten citizens.

There being no necessity for the passage and publication of a preliminary resolution for the building of a sidewalk there was none required for the grading necessary to be done. In the quotations from section 5860 above given, the grading for a sidewalk is made a part of its construction and therefore falls within the statutory provisions applicable thereto.

Nor was it necessary that the council should declare by resolution that the general revenue fund of the city was insufficient to pay for the improvement, including the cost of grading. The fourth subdivision of section 5858, Eevised Statutes 1899, provides that such work shall be paid for only by special assessment against the abutting property. The city had no authority to use the general revenue fund for that purpose; therefore the condition of that fund Was entirely immaterial.

Many other points are made against the bills which on examination we find to be without sufficient merit to call for special notice. The judgment is affirmed.

All concur.