City of Chillicothe v. Henry

• Citation: 136 Mo. App. 468,118 S.W. 486
• Parties: CITY OF CHILLICOTHE ex rel. MEEK v. HENRY.
• Decision Date: 29 March 1909
• Court: Court of Appeal of Missouri (US)

118 S.W. 486

136 Mo. App. 468

CITY OF CHILLICOTHE ex rel. MEEK v. HENRY.

Kansas City Court of Appeals. Missouri.

March 29, 1909.

Rehearing Denied April 19, 1909.

1. MUNICIPAL CORPORATIONS (§ 429)—SPECIAL ASSESSMENTS—STATUTES—CONSTRUCTION—"FRONTAGE."

Rev. St. 1899, §§ 6266-6271 (Ann. St. 1906, pp. 3133, 3134), authorizing a special tax on the lots "on any street" for the improvement of the street, and providing for the apportionment of the cost upon the several lots according to

the "frontage," contemplate that the property shall front on the street improved, and a city paving a street together with the area at the place of intersection with another street cannot levy a special tax on property abutting on the latter street; the word "frontage" being but an expression of the front-foot rule, under which no other property than that abutting on the street improved can be assessed.

2. MUNICIPAL CORPORATIONS (§ 57)—STATUTORY AUTHORITY.

A municipal corporation can exercise only such powers as are granted in express words or are necessarily fairly implied in or incident to such as are expressly granted, and the court in determining whether a certain power has been given to a city must resolve every doubt against the power and in favor of the citizen.

3. MUNICIPAL CORPORATIONS (§ 567)—SPECIAL TAX LIEN—ACTION—DEFENSES.

The defense to an action to enforce the lien of a special tax bill for a street improvement that the power to impose the tax never existed is available under the general denial.

Appeal from Circuit Court, Livingston County; Francis H. Trimble, Judge.

Action by the City of Chillicothe, on the relation of Jim E. Meek, against G. G. Henry. From a judgment for defendant, plaintiff appeals. Affirmed.

Kitt & Taylor, for appellant. B. B. Gill & Son, for respondent.

ELLISON, J.

This action is to enforce the lien of a special tax bill against the property of the defendant fronting on Elm street, in the city of Chillicothe, a city under 10,000 inhabitants and incorporated by special charter. The trial court adjudged the bill to be invalid. The city, by ordinance, directed the paving of 24 feet in width, of that part of Calhoun street lying between Broadway and Locust streets, except where it intersected with other streets, at which intersections the paving, after allowing for parkway and sidewalk space, was to be the full width of Calhoun street. The effect of this was to pave the center of the intersecting street, 24 feet in width, across Calhoun street, or, to state it differently, to pave Calhoun street its full width across the intersecting street; the result being that, if afterwards the city should conclude to pave Elm street, the place of intersection with Calhoun street would be already paved.

The controversy here is over the intersection of Elm and Calhoun streets. The lot sought to be charged is in the block fronting on both streets; but the lot itself is on Elm street alone, 400 feet from Calhoun street. The plaintiff affirms the right to a tax bill for paving the intersection against the lot, although not abutting on Calhoun, while defendant claims that his lot, not being on that street, cannot be charged. The power to make an assessment against the private property of the citizens must be found in the statute. If it is not, the attempt at taxation must fail. The statute claimed to justify the bill in controversy is sections 6266-6271, Rev. St. 1899 (Ann. St. 1906, pp. 3133, 3134). The first section provides that the council of every city under special charter of less than 10,000 inhabitants (Chillicothe being of that class) shall have power by ordinance to levy a special tax on the "lot or lots on any street, alley, avenue or public highway within such city, town or village, for the purpose of paving, graveling or macadamizing and guttering and curbing all or a part of such streets," etc. Section 6268 provides that, "when such work shall be completed, the improvements committee, city engineer or other officer having the work in charge, shall compute the costs thereof and apportion the part or proportion levied against the owner or occupier as aforesaid among the several lots or parcels of land to be charged therewith and charge each lot...