City of Nevada v. Eddy

• Decision Date: 26 June 1894
• Citation: 27 S.W. 471
• Parties: CITY OF NEVADA, to Use of GILFILLAN, v. EDDY et al.
• Court: Missouri Supreme Court

27 S.W. 471

CITY OF NEVADA, to Use of GILFILLAN, v. EDDY et al.

Supreme Court of Missouri, Division No. 2.

June 26, 1894.

PUBLIC IMPROVEMENTS BY CITY — NECESSITY OF ORDINANCE — SPECIAL ASSESSMENTS — EXEMPTION OF RAILROAD PROPERTY.

1. Section 1495, Rev. St. 1889, empowers cities of the third class to "enact ordinances" to make street improvements. An ordinance was passed in such a city providing that when the council deemed it necessary to curb or gutter any street they should, by resolution, declare it necessary, and publish the resolution for two weeks, and if no legal protest is made they should cause the improvements to be made. Afterwards a resolution was passed that the council deemed it necessary to curb and gutter a certain street. Held, that assessments levied for such improvements were void, as no ordinance authorizing them was passed.

2. Const. art. 12, § 14, which declares that railways are highways and railroad corporations common carriers, does not exempt land used by a railroad company for depot and yard purposes from a special tax for street improvements.

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Action by the city of Nevada, to the use of R. S. Gilfillan, against George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas & Texas Railway, to enforce a special tax bill against a tract of land. Judgment for plaintiff, and defendants appeal. Reversed.

This action was brought in the circuit court of Vernon county to enforce a special tax bill against a tract of land, described in the petition as "all of block 32, Dodson's addition to the city of Nevada, Mo.," as the property of the Missouri, Kansas & Texas Railway, on account of curbing and guttering in front of or along the west side of said block, as alleged. The petition alleged the receivership of defendants; that Nevada was a city of the third class; that on July 12, 1888, the city council passed an ordinance, No. 138, "providing for curbing and guttering streets;" that said ordinance provided, among other things, that "the curbing shall be four inches thick, not less than 20 inches wide, and placed on a level," etc., and "the gutters shall be built of stone not less than five inches thick and three feet long and laid at right angles," etc.; that sealed bids were to be received, and the work let to the lowest bidder; that on December 10, 1888, the city council; by resolution duly passed and published, deemed it necessary to improve, by curbing and guttering, parts of streets along the blocks described in said resolution, and that on the same day an estimate of the cost of said improvements was made and filed, and on the same day an advertisement for bids was made; that afterwards, at a regular meeting of the council, on March 4, 1894, "the bid of R. S. Gilfillan, being the lowest and best, at the price of 50 cents per lineal foot for curbing, and $1.22½ per lineal foot for guttering with Gilfillan flagstone, and at 40c. and 95c. per lineal foot for curbing and guttering, respectively, with Clear creek stone, was accepted, and the contract let to him;" that the work was completed and accepted by the city council at a regular meeting, and a special tax to pay for the same was assessed and levied on each tract, and tax bills were ordered to be made, which was done, and the one in suit, with others, was delivered to relator. "The Missouri, Kansas & Texas Railway" was alleged to be the owner of the land above described. Judgment was prayed making the amount of the tax bill, with interest and costs, a special lien on the property described, and that it be sold to satisfy the judgment. The answer admitted that Nevada was a city of the third class; that defendants were receivers, as stated; the passage of the ordinance, No. 138, of July 12, 1888, and the ownership of the property. As to other matters, the answer was a general denial, and, further answering, defendant say "that said block 32, in Dodson's addition to the city of Nevada, Mo., on the 12th day of July, 1888, was, has ever since been, and now is, a part of the right of way, depot grounds, and yards of the Missouri, Kansas & Texas Railway at and in the city of Nevada, and as such, during all of said times, having been used, and now is being used, as a public highway, and is devoted exclusively to the use and purposes of said Missouri, Kansas & Texas Railway as a public highway." Plaintiff filed a reply, which was a general denial.

Upon the trial, plaintiff introduced in evidence a special tax bill "for curbing and guttering streets, avenues, and alleys in accordance with ordinance No. 138 of the city of Nevada, entitled, `An ordinance for curbing and guttering streets,' and a resolution dated July 14, 1888, entitled `Resolution as to guttering and curbing in various parts of this city.'" The city clerk then proceeded, by said tax bill, to certify that there had been made and completed 342 feet of guttering and 336 feet of curbing in front of and adjoining all of block 32, Dodson's addition to Nevada; that, in accordance with said ordinance and resolution, he made said tax bill against said parcel of ground in the name of the owner thereof, "Missouri, Kansas & Texas Railway," in proportion to the frontage or front foot of said lot or parcel of ground; that he had computed the same and found the cost and apportioned the same, and found the proper amount, which is hereby assessed and charged against said lot, and this tax bill is made out for that amount in favor of R. S. Gilfillan, who is the contractor who furnished the material and did the work. The city council of Nevada has assessed the work so done as a special tax against said lot or ground, and this tax bill constitutes a lien, etc. Defendants objected to the introduction of this tax bill, for the reason that it recited the doing of work not comprehended in any ordinance relied on as authority for the bill; that it simply refers to the ordinance by number, — 138, — without any date, and to a resolution of July 14, 1888; and because there is no authority for doing any such work in the resolution mentioned in the caption of the tax bill. The objection was overruled, and defendants excepted. This was all the evidence offered by plaintiff. Defendants introduced Mr. H. W. Isbell, city clerk, and identified the records of ordinances, and the proceedings of the city council of Nevada, and papers which were shown to contain the record and evidence of all that had been done at the time of or affecting the work involved in this case. Defendants introduced the proceedings of July 12, 1888, being ordinance No. 138, referred to in petition and tax bill, which provided:

"Section 1. Whenever the city council shall deem it necessary to curb or gutter any street, they shall, by resolution, declare such work necessary to be done and cause publication to be made, and if there is not a legal protest they shall cause the improvements to be made, and contract therefor and levy the tax."

Section 2 prescribes specifications as follows: "The curbing and guttering shall be four inches thick, not less than 20 inches wide, and placed on a level with the sidewalk, and smoothly dressed on the top edge and cut to a close joint below the gutter line. The gutters shall be built of stone not less than five inches thick and three feet long, and laid at right angles with the curbing, and at an incline conforming to the grade of the street, and the top of said stone shall be dressed to a smooth surface.

"Sec. 3. Before the council shall make any contract the proper officer must make an estimate of the cost, and no contract shall be entered into for a price exceeding the estimate.

"Sec. 4. After two weeks' publication of the resolution declaring such work necessary, the city clerk shall advertise for sealed bids, and shall let the work to the lowest and best bidder.

"Sec. 5. After completion of the work the city council shall assess the same as special tax against adjoining lots, fronting on the work done, and each lot shall be charged in proportion to the frontage thereof, with the cost of such work. The city clerk shall then make out a certified tax-bill of such assessment against each lot of ground, and such bill shall be a lien," etc.

Defendants also introduced proceedings of December 10, 1888. A resolution was passed providing for the guttering and curbing of certain lots and blocks, among which was the west side of block 32 of Dodson's addition to Nevada. After describing the places to be improved, the following occurs: "The curbing shall be as follows: Four inches thick, if built of Gilfillan stone, and, if Clear creek stone, it shall be five inches thick, and not less than three inches wide, placed," etc. "The gutters shall be built of stone, not less than five inches thick, if built of Clear creek stone, and, if built of Gilfillan stone, not less than four inches thick and three feet long, and laid," etc. "Therefore, be it resolved by the city council of the city of Nevada, Mo., that said improvements as hereinbefore specified be made, and such steps taken as may be necessary to effect the same. Passed and approved this 10th day of December, 1888." Defendants then offered the proceeding of February 4, 1889, which was a resolution for advertisement for bids under the resolution of December 10, 1888, and a copy of such notice to bidders, which called for bids according to the specifications of the resolution of December 10, 1888, and not according to the ordinance No. 138, of July 12, 1888. Defendants also offered the bid of R. S. Gilfillan, dated August 30, 1888, in making prices for Gilfillan stone, and other prices for Clear creek stone. Also proceeding of March 4, 1889, showing two bids, one from R. S. Gilfillan (the same as above), for Gilfillan and for Clear creek stone, and one from C. T. Wilson, for Clear creek stone only. Wilson's bid was not accompanied by a check, as required, and the contract was awarded...