Keane v. Klausman
| Citation | 21 Mo.App. 485 |
| Parties | WILLIAM KEANE ET AL., Appellants, v. MARIA A. KLAUSMAN, Respondent. |
| Decision Date | 06 April 1886 |
| Court | Court of Appeal of Missouri (US) |
APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.
Affirmed.
M. MCKEAG, for the appellant: The defence that the work was ordered and done as a sanitary measure requiring its immediate doing, should have been considered. Eyerman v. Blakely, 78 Mo. 145. It is incumbent on the property holder to take some steps by a timely proceeding to restrain the municipal authorities from the construction of the work; he can not lie by and see the work progress to completion without any complaint or effort to stop it, and then defeat the contractor in his suit on tax bills. Eyerman v. Blakely, 74 Mo. 145; Sheehan v. Owen, 82 Mo. 458; Motz v. City of Detroit, 18 Mich. 528; Kellog v. Ely, 15 Ohio St. 64; Patterson v. Brown, 43 Iowa 477; City of Lafayette v. Fowler, 34 Ind. 140.
KLEIN & FISSE, for the respondent: It was improper to plead a municipal ordinance by its title and number. Crone v. Malinckrodt, 9 Mo. App. 316. Passing by for the present the question whether the facts pleaded in the reply are sufficient to create an estoppel, we submit that the rule of estoppel has no application in cases of this character. Perkinson v. McGrath, 9 Mo. App. 26. Nor is the proposition tenable that the defendant was estopped to make this defence, because it did not institute proceedings to restrain the enforcement of the levy. Town of Cameron v. Stevenson, 69 Mo. 372. If the levy of the tax was in conflict with the constitution, it was void and lifeless, and no mere silence on the part of the defendant could vitalize it. Citing Cruger v. Dougherty, 43 N. Y. 107; Starr v. City of Burlington, 45 Iowa 87; Steckert v. City of East Saginaw, 22 Mich. 110.
This suit, on a special tax bill for the construction of a sewer adjacent to the defendant's property, is for work done under the same city ordinance and proceedings upon which the plaintiff's claim was founded in the case of Keane v. Cushing (15 Mo. App. 96). In that case it was held that the proceedings under the ordinance were void, and the plaintiff could not recover, because the advertising for the letting of the contract was done between the date of the passage of the ordinance and the day on which it went into effect. In this particular, the facts in the present case are precisely the same, and are alike fatal to the plaintiffs' demand. The plaintiffs, however, present some points on which they think the judgment against them ought to be reversed, notwithstanding.
The answer set up the infirmity in the proceedings already mentioned, with several other special defences, to which the plaintiffs filed a reply containing the following:
“And plaintiffs for a further reply state that the public work which said ordinance, number 11,519, provided for, was a public work of necessity, requiring prompt attention. That the board of health of the city of St. Louis, on the ninth day of September, 1880, recommended, as a sanitary measure, the construction of the sewers mentioned in said ordinance number 11,519, and directed the board of public improvements to have said sewers constructed; that the said board of public improvements recommended the same to the municipal assembly as being necessary, for sanitary purposes, and approved said ordinance number 11,519.
And the said plaintiffs further replying aver the fact to be that the plaintiffs completed the sewers provided for by the said ordinance, number 11,519, and their said contract in full reliance upon the validity of their contract, that the said defendant was a resident of the city of St. Louis, and well knew of the existence of said ordinance and contract and of the construction of said sewers by the plaintiffs, and took no steps to prevent the construction of said sewers by the plaintiffs, nor did she make any objection to plaintiffs against the construction by plaintiffs of said sewers.”
The court, on the defendant's motion, struck out these parts of the reply. This is assigned for error.
As for the first of these two paragraphs, the matter set forth therein was wholly immaterial and redundant. No charter provision or other law can be shown which will excuse a non-compliance with a mandatory provision, adapted to create a demand against a property owner for the construction of a sewer, on the ground that such construction is recommended as a sanitary measure, and requires prompt attention. That the ordinance prescribing mode and time for advertising the letting of the contract is...
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...W. 800; Gibson v. Owens, 115 Mo. 258, 21 S. W. 1107. The law as applicable to the facts of this case is correctly announced in Keane v. Klausman, 21 Mo. App. 485, as follows: "The defendant did not cause the making of the contract or the building of the sewer, and was not called upon to int......
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