Kansas City v. Porter

71 Mo. App. 315 | Mo. Ct. App. | 1897

Smith, P. J.

This is an action on a special tax bill in which the plaintiff had judgment and the last named defendant, the American Surety Company, appealed. The several assignments of error relied on by the defendant for a reversal of the judgment may be summarized thuswise: First. That the petition of the plaintiff is fatally defective in that it does not set up a valid ordinance. Second. That there is an absolute failure of proof as against appellant. Third, That the suit was not brought within the time limited by the Kansas City charter of 1889. Fourth. That no notice of the institution of the suit was filed with the city treasurer as provided by the charter of 1889. These we shall notice seriatim.

Special tax bills: pleading: pea-I. It is to be observed in referring to the first of the foregoing assignments that in a suit on a special tax bill both the statute of 1879, section _ „ 4784, and that of 1889, section 1407, declare that it shall be sufficient for the

plaintiff to plead the making and issue of the special tax bill 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, or some estate therein as the case may be. And the language of section 18, article 9 of charter of Kansas City, adopted April 18,1889, and of the amendment thereof, adopted February 27,1892, is substantially the same as that of the above statute. It is not disputed but that the petition when tested by this statutory and charter rule sufficiently states a cause of action. But it is objected that it is fatally defective because it does not show on its face that the ordinance which provided for the establishment of sewer district number 84 and the construction of a sewer therein prescribed the material out of which the said sewer was to be constructed. At the inception of the trial the defendant orally interposed this objection to the introduction of any evidence. The petition states the number and title of the ordinance just referred to, and when approved. This was perhaps made necessary because a similar reference to it is made in the tax bill. The right of action alleged was on the tax bill and not in the ordinance. Even if it was necessary to plead the ordinance it was sufficient to refer to it by title and day of its passage. R. S., sec. 2078. The rule is that where a party asserts and founds a right to recover on a city ordinance he should plead it. Givins v. Van Studdiford, 86 Mo. 149. But this rule is manifestly inapplicable in a case like this.

pleading: pedtion: practice: demurrer. If the petition had been imperfect because it did not set forth the provisions of the ordinance it would now, after verdict, be held sufficient. A petition which impliedly states a cause of x action can not be reached by objection to the introduction of evidence under it by

an instruction. The objection must be made by formal demurrer or motion to make definite, to be available on appeal. Thumford v. Keelt, 65 Mo. App. 502. We do not think the petition subject to the objection lodged against it.

Tf?ci’JIcase?ma answer.r: II. As already stated, John Porter, who was alleged to be the owner of the property described in the special tax bill, did not prosecute an appeal from the judgment. The only interest the appealing defendant had in the property, as appears from its answer, was that of owner of a promissory note secured by a deed of trust executed by Porter after the issue of the tax bill, and of course it is not named therein.

The recitals in the tax bill do not constitute prima facie evidence of the validity of the tax bill, the doing of the work and the furnishing of the materials charged for and the liability of the property to the charge stated in the tax bill as against the defendant. Stadler v. Roth, 59 Mo. 400; Farrell v. Rammelkamp, 64 Mo. App. 425. But while the statute does not make the recitals in the tax bill prima facie evidence, as against the defendant, that was accomplished by its answer wherein it was admitted “that the special tax bill sued on herein and attached to plaintiff’s petition was issued under and by virtue of ordinance No. 40798 of said City of Kansas, entitled ‘An Ordinance to establish Sewer District No. 84 and to establish and cause to be constructed a district sewer therein,’ approved February 10, 1888; and that the work of constructing a district sewer in district No. 84 in said City of Kansas was performed by Alexander Duer, under and by virtue of a certain contract between the City of Kansas, dated February 24, 1888, which said- contract was confirmed by an ordinance of' said Kansas City, No. 41166, entitled, ‘An ordinance to confirm contract with A. Duer for the construction of sewers and appurtenances in Sewer District No. 84, as provided for by ordinance 40798,’ approved March24,1888;” And such undoubtedly was the understanding of the defendant, for the answer, after making the foregoing specific admissions, pleads a number of distinct affirmative defenses.

The effect of the admissions in the defendant’s answer was to relieve the plaintiff of the burden of establishing its prima facie case by evidence, which otherwise would have devolved upon it. The defendant’s second assignment can not therefore be sustained.

III. The tax bill in suit was issued August 22, 1888, and before the present charter became operative, which was on May 9, 1889. This suit was begun August 19, 1893.

^freeholders* ÉfnsS city, It is conceded that under the charter existing at the time of the issue of the tax bill that the duration of the lien thereof was five years. St. Louis v. Newman, 45 Mo. 148. The question now is whether the plaintiff’s right of action on the tax bill is to be governed by the five years period of limitation recognized to exist under the charter of 1875, or that of two years prescribed by the charter of 1889, for if the former the judgment must be upheld, and if the latter it must be reversed. Has the government, through its lawmaking power, by the charter of 1889, declared that the courts shall be open for two years only for the enforcement of special tax bills, whether the same be issued .under the old charter or the new?

It is generally conceded that statutes of limitation only relate to the remedy and do not operate to extinguish the right. In other words, they are not treated as elements entering into the contract, so that the legislature is precluded from shortening or lengthening the period of limitation at any time before the bar ha s become complete. Woods on Limitations of Actions, sec. 13; Gilman v. Cutts, 23 N. H. 376; Martin v. Martin, 35 Ala. 560; Howell v. Howell, 15 Wis. 55. A state may regulate at pleasure the mode of proceeding in its courts, in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It is, however, essential to the validity of such statutes that they allow a reasonable time after they are passed for the commencement of suits upon existing causes of' action.- A statute which would bar existing claimants without affording them an opportunity to try their rights in the courts after the time when it takes effect would not be a statute of limitations at all, but an unlawful attempt to extinguish rights and destroy the force of contracts. It would be invalid as to such claimants. Stephens v. Bank, 43 Mo. 385; Seibert v. Copp, 62 Mo. 182. In the last cited ease it was expressly decided that the time of enforcing a remedy may be shortened by an act of the legislature provided the act does not operate to deprive the party of his remedy and leaves him a reasonable time within which to sue. The case to which the rule was applied was where a special tax bill had been issued that would not be barred for five years. Shortly after its issue an act of the legislature was passed cutting down the period of limitations to two years. It was held that the owner of the tax bill had two years after the passage of the latter act, within .which to bring his action. So that there can be no doubt that it was clearly within the power of the city as to existing special tax bills to shorten the period within which an action could be brought thereon.

It remains to be considered whether the charter of 1889 as to special tax bills, issued under that of 1875, has shortened the period of time in which actions should be brought on such special tax bills. Turning to the charter of 1875 and we find that it is there provided that as soon as a district sewer is completed that it is the duty of the city engineer to compute the whole cost thereof and assess it against the lots of ground in proportion to the area of the whole district, and to make out certified tax bills against each lot in the name of the owner and deliver the same to the contractor. Charter 1875, art. 9, p. 63.

In the charter of 1889 it is provided that the duties just referred to, which were requited of the city engineer under the charter of 1875, shall be performed by the board of public works. Secs. 10 and 15, art. 9. It is therein, section 16, further made the duty of the board of public works to cause the special tax bills made out and certified by them to be registered in full in their office,' and to deliver the same to the party in whose favor made out, taking his receipt therefor at the foot of the registry, etc. In another section of said charter, section 18, article 9, it is provided that “every special tax bill shall be a lien on the land described therein on the date of the receipt to 'the board of public works therefor, and such lien shall continue for two years thereafter, but no longer, except as is in this article otherwise provided, unless suit shall be brought to collect the same within two years from the issue thereof * * * provided, however, that if such suit shall be brought within two years the plaintiff therein shall, after commencing the suit and not later than thirty days after the end of two years, in person or by attorney or agent, file in the office of the board of public works a written statement showing the tax bill sued on and when and in what court and against whom the suit is brought. The board of public works shall immediately after the filing of any such statement, note on the registry of such tax Mil the time of filing of such statement and the substance of such statement.”

It seems to us that the special tax bills, the lien of which under the provisions of the charter of 1889 just referred to is to continue for two years, are those made and certified to by the board of public works, and which have been registered in their office and receipted to them at the foot of the registry by the party in whose favor made out. There is nothing in the language of said section 18, of the charter of 1889, nor, indeed, in any other provision of that instrument to which our attention has been called to justify the conclusion that the “freeholders” intended to make applicable to any class of special tax bills other than that issued by the board of public works, registered and receipted for in the registry, the two years’ limitation as to the duration of the lien and the bringing of suit.

Certainly a special tax bill like that sued on in this case, which was issued by _ the city engineer under the provisions of the charter of 1875, is not the special tax bill specified in said section 18 of the charter of 1889 previously quoted. It will be observed by reference to said section 18 that by the terms “every special tax bill” is meant that class issued by the board of public works and none other. There is no provision of the charter of 1889 for the registration by the board of public works of special tax bills issued under the charter of 1875, and hence it may be asked how can such board immediately after the filing of the statement required by said section 18, article 9, of the former charter, be noted on the registry of such tax bill, the time of filing and the substance of such statement. This requirement could not be met. It, however, illustrates the inapplicability of the section to special tax bills issued under the charter of 1875.

An action on a special tax bill necessarily depends upon the statute for its support. The liability imposed by such bill is a liability created by statute, and as such falls within the letter of section 3230, Revised Statutes 1879, now section 6775, Revised Statutes 1889. Turner v. Burns, 42 Mo. App. 94. And this general statute would be applicable to special .tax bills issued under the charter of 1889, were it not expressly excepted out of its operations by the provisions of section 18, of article 9, of that charter. All special tax bills are subject to the limitations imposed by the general statute already referred to unless excepted out of its operation by some charter provision of the municipality issuing the same.

Statutes limiting the right to bring actions to particular periods are restrictive, and will not be extended to any other than the cases expressly provided for; and the exceptions are allowed a liberal effect though not so liberal as to embrace cases within the reason though not within the letter of them. Sutherland on Sfcat. Construction, see. 368, and cases there cited. It is clear that the tax bill sued on is not embraced within the letter of the exception mentioned in said section 18, of article 9, of the charter of 1889, though it may be embraced in the reason of such exception. We think that it must follow from these observations that the limitation provided in said section 18, article 9, of the charter of 1889, is inapplicable to the special tax bill sued on, and that the length of the period in which suit could be brought thereon remains just as it was under the charter of 1875.

~LsurirVíre¡‘y holders charter, And it likewise follows that the provision 18, article 9, of the charter as amended in 1892, requiring the holder of the special tax bill to file notice of the suit with the city treasurer, is inap- & cag0 present. TllO language of said section 18, as amended, and which is to the effect that “ every special tax bill issued under the provisions of this article shall be a lien * * * upon the date of the receipt to the board of public works therefor and such lien shall continue for two years, but no longer, except, etc.,” lends additional support to the conclusion hereinbefore expressed as to the inapplicability of that section before it was amended to the special tax bill here. The language of the section has been made so explicit that there can no longer be left any doubt that a special tax bill like that here was not intended to be embraced within its operation.

The question most discussed in Kansas City v. Summerwell, 58 Mo. App. 247, does not arise in this case.

The suit, we think, was properly and timely brought and that the judgment therein should be affirmed.

All concur.