142 Mo. App. 160 | Mo. Ct. App. | 1910
Lead Opinion
(after stating the facts.) — I. The question is raised by the respondent as to the proper parties defendant to the suit on the taxbill. It is contended that one L. N. Coffman was a joint owner with the respondent and should have been made a party defendant in tbe suit.
Tbe evidence tends to show that prior to tbe suit on tbe taxbill, tbe joint owners, Young and Coffman, made a verbal partition, Young receiving tbe portion of tbe land on which the sidewalk in question abuts, and it appears that Coffman constructed bis portion of tbe sidewalk in compliance with tbe ordinance along tbe tract belonging to him.
Tbe provision of the statute requiring tbe tax suit to be commenced against tbe record owner was made to enable tbe plaintiff more readily to ascertain the party against whom suit should be commenced. Tbe law in its administration is to be made practical, and if tbe real owner is in fact made tbe defendant in tbe tax suit, tbe end intended to be accomplished by tbe law is reached and tbe defendant is not in a position to complain. A valid judgment may be rendered in an action on a special taxbill against real estate to be charged with its lien without bringing in all tbe parties in interest. Of course, only tbe interest of tbe party made defendant would be bound by tbe judgment, and tbe defendant actually made a party would have bis action against owners not made parties for contribution. [Schneider Granite Co. v. Taylor, 64 Mo. App. 37.] Observance of all the formalities in suits on taxbills is not required, but only a substantial compliance with tbe law is demanded. [Sheehan v. Owen, 82 Mo. 458; Cole v. Skrainka, 105 Mo. loc. cit. 309, 16 S. W. 491.]
II. It is contended that tbe respondent, W. W.
The evidence shows that respondent was present at the meeting of the board of aldermen at the time the ordinance or resolution was passed, and that he notified the city at that time that he would neither build his walk nor pay for its construction. The object of the law under such circumstances requiring notice is to enable the party interested to build the walk or have it built as well as to allow him to make any objections he may have. The respondent in this case had the notice, and, by his declarations, waived any additional notice. It would be a mockery indeed if the law should allow the defendant, before suit, to notify the city that he would neither build nor pay for the construction of the sidewalk, - and then, after the expense of constructing it had been incurred and suit had been commenced against him on the taxbill, to defeat the action because he had not been served with notice. Respondent had a right to waive the notice which he did in this case, and he is not in any position to complain because formal notice was not served upon him. He will not be allowed to blow hot and cold at will.
III. Objection is made to the regularity of the ordinance condemning the old sidewalk and providing for the construction of the new one abutting respondent’s land. Section 5991 of the Revised Statutes of 1899 provides: “In addition to the powers hereinbefore granted, the board of aldermen may, by ordinance or. resolution, condemn wooden and defective sidewalks, and may remove walks so condemned, and may provide for the construction of new sidewalks in the place of walks so condemned and removed.” This provision concerning cities of the fourth class gave the authorities of the city of Salem full power over the sidewalk in question, and their ordinance in this respect was a full compliance with the law.
V. This case seems to have proceeded in the trial court upon the erroneous theory that it was necessary for the relators to show that the extension of the city limits over the respondent’s property was in compliance with the provisions of the statutes governing such extensions. This is an entirely erroneous conception of the law. Under the Missouri decisions, a de facto corporation or a 4 facto extension of the city limits of a municipal corporation is sufficient to withstand the respondent’s objections in an action upon a taxbill. Any actual organization of the municipality in osten- ■ sible possession and in the exercise of municipal powers is a de facto corporation. Public policy requires that municipal governments should be stable existing civil institutions and should not be easily destroyed. This maxim applies in all its force to the extension of city
Evidence was offered to show that the city of Salem had exercised its corporate functions over a territory attempted to be annexed, for years. The right of municipalities to exist and to act as such corporations cannot be impeached collaterally in the manper attempted in this case. Confusion amounting to chaos would result if the life of every municipality or other public service corporation should hang by so slender a thread. [Black v. Early, 208 Mo. loc. cit. 307, 106 S. W. 1014.] Under a rule that would permit the validity of the public corporation to be brought into question at the suit of private individuals, the corporation might find itself with or without being according to the return of the jury, alternating, it may be, between life and death several times during the same day as the return of the jury in different cases might indicate. It is neither within the letter nor the spirit of the statute to permit such vexatious and befogging issues to be made and considered. [Black v. Early, supra.] The existence of a municipal corporation in the de facto exercise of corporate powers must be challenged by the State itself by an information in the nature of quo warranto and cannot be collaterally attacked, for instance, by a defendant in a suit for taxes. [State ex rel. v. Birch, supra, and cases cited therein.]
VI. But the reasonableness of an extension of city limits in suits to enforce rights claimed to arise thereunder is a subject of judicial inquiry. [State ex rel. v. Birch, supra.] In case of such attack, however, the presumption would arise that such extension and the exercise of corporate powers was reasonable, and, in cases like the present, the presumption of law is that the street is a proper subject of municipal legislation and the burden of proving the contrary is on the challenger. When such attack is made in a collateral proceeding, as here either on the extension
The rulings of the trial court as to the admission and exclusion of evidence were contrary to the principles of law announced in this opinion, and in order that the question of the reasonableness of the extension of the city limits of the city of Salem and the reasonableness of the ordinance condemning the defective sidewalk and providing for the construction of a new one abutting defendant’s land may be investigated according to the principles herein stated, the judgment is reversed and the cause remanded for a new trial on such issues. But in order to raise such issues, respondent’s answer should be amended so as to plead his objections specifically.
Rehearing
ON MOTION FOR REHEARING.
A motion has been filed in this case for a rehearing on several grounds, all of which were fully expounded in the opinions heretofore filed in this case, with the exception, perhaps, of the point that is now urged that unplatted land within the territorial limits of a city cannot be made subject to the sidewalk ordinances of the city. Able counsel for re
The question as to whether a tract of farm land or a tract of land not platted, situated within the corporate limits of a city, can be made subject to taxation for municipal improvements is simply the inter-' pretation of the law as to whether such power has been expressly or impliedly conferred by the Legislature to the municipality, always subject, of course, to the constitutional limitation of grants to cities. In this case, the question is removed from all doubt by the law expressly empowering cities of the fourth class to open and improve streets, avenues, alleys and other public highways, and to make sidewalks, build bridges, culverts, drains and sewers within the city, and so forth; also giving cities of the fourth class exclusive control over all streets, alleys, avenues and public highways, within the limits of such cities. [Section 5979, Revised Statutes of 1899.] Not only is this general power thus expressly given, but also the further power for making and repairing sidewalks and sidewalk curbing and' levying the cost thereof hs special assessments on all lots and pieces of ground abutting such improvements in proportion to the front foot thereof. [Section -5981, Revised Statutes of 1899, concerning cities of the fourth class.] It will be noticed that under the latter section, the power is given to levy the special assessments to pay for making and repairing sidewalks, not only on all lots, but also on all pieces of ground abutting such improvements. This language leaves no open question. Its meaning is written on its face and so written as to need no interpretation. As we have seen, the statute enumerates lots and pieces of ground. Even if the latter were not specifically
To sustain his contention, respondent has further cited the case of Langworthy v. City of Dubuque, 16 Iowa 271, which, an examination will show, is in entire harmony with the principles announced in the opinion delivered in the present case. The lots sought to be taxed in the city of Dubuque in that case were of various sizes — from two to fourteen or more acres of land — and were called mineral lots. It was held that the plaintiff was bound to pay the assessments levied by the city upon his property, the court remarking: “We are not insensible that abuses and inequalities will often occur in levying these, city burdens, resulting especially from an enlargement of their boundaries; but these in the main should find their correction in a wiser and more discreet administration of the city government, the authorities of which should have their assessments made with the utmost care and discretion, and always with a special regard to the value and location of the property, and the proportional benefits which the same will be likely to receive from disbursements of the local revenue collected.” To hold that a tract of land in the very heart of a city which receives all the benefits of the unearned increment arising from the growth of population and wealth and at the same time to relieve it of all burdens of taxation for city government would be obnoxious to every principle of justice.
We are further cited, in support of the motion for
Of course, cases may arise in which the exercise by the city of its taxing power over tracts of unplatted land situated within the city limits could not be tolerated by the court. Each particular case must be determined by its own particular circumstances without regard to any definite or fixed rule. The principles laid down by the authorities cited in the opinion rendered in this case place the decision upon the reasonableness of the exercise of the power of taxation, taking into consideration all the facts and circumstances surrounding the particular case. The motion for rehearing is denied.
