Moberly v. Hogan

131 Mo. 19 | Mo. | 1895

Barclay, J.

This is an action by the city of Moberly, to the use of the Moberly Brick, Tiling and Earthenware Company, to enforce the lien of a special tax bill against a piece of land owned by defendant in that city, which is governed by the law applicable to cities of the third class. The company was the contractor for the work.

The plaintiff’s tax bill is for paving Coates street with hard-burned brick, from the center of Ault street to the Moss Park school grounds, under an ordinance and contract to that effect, which are not charged to be irregular or illegal, except in the particulars mentioned further on.

The pleadings need not be specially noticed, except on one point discussed later.

The cause was tried by the court. There was a finding for plaintiff, and a judgment followed which will be quoted.

The material facts are admitted by both parties.

The defendant’s lot is a corner lot having a shorter front on Ault street than on Coates street. Defendant’s lot is charged by the tax bill and by the judgment as abutting on the improved street, according to its frontage thereon.

The court refused a declaration of law, asked by defendant on this point, as follows:

“The court declares the law of this case to be, that in levying the special assessment upon lot 12, in block 25, in the original town of Moberly, to pay for the improvements mentioned in said special tax bill here sued upon, the proper officer, whose duty it was to make out such tax bill, should have levied the special assessment upon said lot by estimating said lot to have only twenty-five front feet instead of estimating it to have one hundred and twenty front feet; that it was erroneous and illegal to make out the tax bill here sued upon on the basis that said lot had a frontage of one hundred and twenty feet, because'that one hundred and twenty feet was the length of the side of said lot and not the front thereof, and the special tax bill here sued upon is therefore illegal and void and the plaintiff can not recover in this action.”

At the trial the court refused to allow defendant’s offer of testimony to show that the lot was not benefited by the improvement, but that its value was destroyed thereby.

The amount of the judgment is small, but the case is brought here for the alleged reason that the effect- of the proceeding is to deprive defendant of his property without due process of law, as forbidden by the federal constitution, and to take it for public use without just compensation, in violation of his rights under the state constitution.

1. ■ The tax bill was relied on by plaintiff, under section 108 of the general charter of cities of the third class, which makes it prima facie evidence of the liability of the property for the charge stated in the bill. Laws, 1893, p. 91, sec. 108.

Upon the introduction of the. bill in evidence it devolved upon defendant to show some valid objection to its presumptive force under the last mentioned section. St. Louis to use v. Oeters (1865), 36 Mo. 456.

2. The constitutional objections to the tax bill are groundless, in view of a number of decisions, extending through many years of the history of this court. It is established law that tax bills of the sort in question are sustainable as an exertion of the taxing power. Garrett v. St. Louis (1857) 25 Mo. 505; Palmyra v. Morton (1857) 25 Mo. 593; Farrar v. St. Louis (1883) 80 Mo. 379; St. Joseph to use v. Owen (1892) 110 Mo. 445 (19 S. W. Rep. 713). The authority invested with the power of taxation for such purposes determines the occasion for the tax, and levies it upon the property subject to the tax. Where that is regularly done, in accordance with the terms of the law conferring the power, the propriety of the tax in the particular instance is not a judicial question, and it is not reviewable by the courts in the manner here attempted. McCormack v. Patchin (1873) 53 Mo. 33; Seibert v. Tiffany (1879), 8 Mo. App. 33; Estes v. Owen, (1886), 90 Mo. 113, 2 S. W. Rep. 133; St. Louis v. Ranken (1888), 96 Mo.497, 9 S. W. Rep. 910.

The trial court committed no error in excluding the defendant’s evidence offered.

3. The point is made that the ordinances on which the tax bill was founded are not specifically set forth in the petition. They are not copied, it is true. But their substance and effect are stated as follows:

“The city council of plaintiff, city of Moberly, did, on the 20th day of June, 1893, pass an ordinance, entitled ‘An ordinance in relation to the paving of East Coates street with brick, from the middle line of Ault street to the Moss Park school ground,’ which ordinance was approved on the 21st day of June, 1893, and directed and required that East Coates street should be paved with hard-burned brick from the center line of Ault street to the Moss Park school ground, prescribed the manner said paving should be done, and directing and requiring the city council of plaintiff, city of Moberly, to ascertain by proper estimate the necessary cost thereof, and make a contract and employ someone to pave the same; and, in pursuance to said ordinance, the city engineer of plaintiff, city of Moberly, made an estimate of - the cost of said pavement, and submitted said statement to said city council; and afterward, to wit, on the 5th day of July, 1893, the city council of plaintiff, city of Moberly, passed an ordinance contracting for the paving of East Coates street between the middle line and the Moss Park school ground with brick; which ordinance was approved July 6, 1893, and by the terms of which the Moberly Brick, Tiling and Earthenware Company was employed and authorized to furnish the labor and material to pave said street, at and for the price and sum of $1.35 per square yard of surface paved, and which said Moberly Brick, Tiling and Earthenware Company undertook and contracted to do for said price and sum, which, was the price and sum the estimate, so furnished by the city engineer to the city council of plaintiff, city of Moberly, showed would be the necessary cost thereof, to wit, $1.35 per square yard of surface paved.”

No objection was taken by motion or otherwise to the petition, so far as we are advised by this record. If the pleading was not specific enough to inform defendant of the case he was summoned to meet, he should have taken steps to have it made so before the trial by an attack upon it at that stage of the case. In default of such action, it is certainly enough that the petition states the substance and general tenor of the ordinances which form the foundation of plaintiff’s demand.

4. Defendant also argues that the “front foot” rule of assessment does not properly apply to the side of his lot that touches Coates street. This, too, is an old subject on which the law is settled to the effect that, where the side of a lot abuts upon the improvement, the lot is properly assessable therefor, according to that frontage, where the language of the law is in substance such as here appears. Similar language has been so interpreted in prior decisions. It is unnecessary to go over the argument of the subject now. Seibert v. Tiffany (1879), 8 Mo. App. 33; Allen v. Krenning (1886), 23 Mo. App. 561; Wolfort v. St. Louis (1893), 115 Mo. 139, (21 S. W. Rep. 912).

The intent to authorize such a mode of assessment of the special tax is even clearer, under the particular statute governing cities of the third class (Laws, 1893, p. 91, sec. 108, par. 5) than it was in the terms of law construed in the decisions above cited.

5. Defendant claims that the judgment is a personal one, and hence not authorized in such a case. It is as follows

“It is, therefore, adjudged, ordered and decreed that plaintiff have judgment against defendant for the sum of $387.24, and for a special lien on’ and against said lot 12, in block 25, of the original town of Moberly, in Randolph county, Missouri, aud that said lot be sold to pay said amount and costs of suit and that execution issue therefor.”

The petition did not ask a personal judgment, but for “a special judgment against said lot for the amount of said tax bill,” with interest and costs. The language of the judgment rendered is not as accurate on this point as it might he; its intent, however, is plain. We will not stop to examine whether it is good enough as written, when it can be so readily corrected, at the present stage of the litigation. Any possibility of its misconstruction in enforcement can be obviated by striking out the words “against defendant,” and tne word “and,” where it occurs the second time, in the judgment as it now stands. R. S. 1889, sec. 2114; St. Louis to use v. Bernoudy (1869), 43 Mo. 552.

So amended, the judgment is affirmed, and the cause is remanded with directions to re-enter the judgment, now for then, as indicated.

Brace, O. J., and Macearlane and Robinson, JJ., concur.