City of St. Joseph v. Farrell

Decision Date09 November 1891
Citation17 S.W. 497,106 Mo. 437
PartiesCITY OF ST. JOSEPH v. FARRELL.
CourtMissouri Supreme Court

6. An ordinance under the present charter of St. Joseph, Mo., establishes a sewer-taxing district in territory partly embraced within an old public sewer district, defined by an earlier ordinance under a former charter of the city. The public sewer was partly built as projected, but was not finished in the district named in the later ordinance. Held, that the latter repealed the former ordinance pro tanto, and was a proper exercise of municipal legislative authority.

(Syllabus by Barclay, J.)

Appeal from circuit court, Buchanan county; S. P. HUSTON, Judge.

Action by the city of St. Joseph, to use, etc., against one Farrell, on a special tax-bill. Judgment for plaintiff. Defendant appeals. Affirmed.

STATEMENT BY THE COURT. This is an action upon a special tax-bill. On May 6, 1881, the city of St. Joseph, then governed by a special charter, established by ordinance a main or public sewer, designated the "Messanie-Street Sewer," extending from Missouri river along Messanie street to the east line of Tenth street; and entered into a contract with Patrick Morley to construct it, reserving power to stop the work at any time on 10 days' notice. Morley's contract was performed to Eighth street, and that work paid for. In 1885 the city (having adopted the general law governing cities of the second class) established sewer-district No. 1, which included in its area the defendant's property. August 21, 1885, upon a declaration by the city council that it was "necessary for sanitary and drainage purposes," an ordinance was passed providing for the construction of sewers in said district, a part of the work so directed being in fact the same as that originally contemplated by the ordinance relating to the Messanie-Street main or public sewer, between Eighth and Tenth streets. A contract therefor was entered into by the city with relator, Gibson, who performed the work, and to whom the tax-bill in suit was issued. The petition declares upon the tax-bill. The answer sets up the establishment of the Messanie-Street main sewer, and the contract with Morley; that part of the Gibson contract work on Messanie street (from Eighth to Tenth street) was a part of the main sewer, and not chargeable to local assessment or taxation, etc. The reply admits the ordinance creating the Messanie-Street main sewer, but alleges it had been repealed. The trial court, on an agreed statement of facts, found for plaintiff, and defendant appealed in due course. The other facts necessary to an understanding of the case are found in the opinion of the court.

S. S. Brown and Vinton Pike, for appellant. H. K. White, for respondent.

BARCLAY, J.

The special tax-bills sought to be enforced in this action were issued in payment for the construction of a sewer in district No. 1 of the city of St. Joseph. At that time the municipality was governed by a general charter, applicable to cities of the second class. It vested in the common council the power to establish (by ordinances as occasion might require) a sewer system, embracing public, district, and private sewers. Public sewers were authorized "along the principal courses of drainage," and were chargeable (by a "special public sewer tax",) on all property in the city taxable for state purposes. District sewers were to be constructed within the limits of prescribed districts, to connect with a public sewer, other district sewer, or with some natural course of drainage. The cost of construction thereof was to be assessed by the city engineer (or other officer in charge of the work) as a special tax against each lot of ground in the district, exclusive of the improvements "in proportion to the area of the whole district, exclusive of public highways." Rev. St. 1879, § 4791. All the details for the collection of assessments so levied need not now be mentioned. The specific objections urged to the bills before us will be considered.

1. It is claimed that the tax-bill is void, because it does not show on its face that defendant's lot was assessed with the proportion of the whole cost which its area bore to the whole area of the district. It is true that the amount of total cost is not mentioned in the tax-bill, but the law does not require it to be so mentioned. The city engineer certifies that he computed the whole cost of the sewer and "assessed it as a special tax against the lot of ground, in said sewer-district No. 1, in the city of St. Joseph, aforesaid, exclusive of improvements, in proportion to the area of the...

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