City Trust Co. v. Crockett
| Decision Date | 01 July 1925 |
| Docket Number | No. 24070.,24070. |
| Citation | 274 S.W. 802 |
| Parties | CITY TRUST CO. v. CROCKETT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.
Suit by the City Trust Company against Cora A. Crockett. Judgment for plaintiff for a portion of the amount sued for, and both parties appeal. Reversed and remanded.
Shepard & Hawkins, of Caruthersville, and Shepard Barclay, of St. Louis, for appellant.
Ward, Reeves & Oliver, of Caruthersville, for respondent.
LINDSAY, C. I.
The plaintiff sued, as assignee of a tax bill issued by the city of Caruthersville, a city of the third class for certain improvements made on a part of Ward avenue.
The tax bill was issued May 4, 1918, for $457.59; bore interest at the rate of 6 per cent. per annum; and was payable in five annual installments. Upon the request of defendant the cause was submitted to a jury, and there was a verdict for plaintiff in the sum of $423.47, and both parties have appealed. The defendant, by objection duly made, challenged the sufficiency of the petition, and urges that it is insufficient.
The contention is that the petition recites no part of the resolutions or ordinances pertaining to the improvement; that it does not state any of the contents of the tax bill, but merely refers to it as an exhibit. Counsel upon this point have cited several cases, only one of which was a suit upon a special tax bill.
These cases, except two, are merely authority for the well-known rule that the exhibit forms no part of the petition. Irvin v. Devors, 65 Mo. 625, was a suit on a special tax bill. The defects pointed out were that the petition failed to state that the tax bill was issued by virtue of an ordinance duly passed, and failed to state that the engineer of the city, in computing the cost, charged the lot of the defendant only with its proportion, in accordance with the frontage thereof.
In Vaughan v. Daniels, 98 Mo. loc. cit. 234, 11 S. W. 573, the suit was one upon a tax bill issued for general taxes. The petition wholly failed to describe the lands.
In section 8369, part of the charter of cities of the third class, there is the following provision:
"It shall be sufficient for the plaintiff, in any suit on such special tax bill, to plead making of the tax bill sued upon, giving the date and contents thereof, and the assignment thereof, if any, and to allege that the party or parties made defendant own, or claim to own, the lands charged, or some estate or interest therein, as the case may be, and to file the tax bill in suit."
In this case the petition alleges that the improvement was made under authority of ordinance No. 278, giving the date of its approval, which ordinance provided for the said improvements; that the city council in pursuance of that ordinance, and the powers in it vested by law, awarded the contract to the contractor named therein; that said contract was duly confirmed by ordinance No. 297; that the work had been done and completed according to the terms of the contract by the contractor, and had been accepted by the city; and "that, after the completion of said work, the cost thereof was duly assessed and apportioned against the land and property chargeable therewith, according to the frontage, as provided by law."
The petition further alleges the making and issuance of the tax bills according to said apportionments; alleges that the defendant is the owner of said lot in said city, particularly describing the same. The petition further alleges the amount assessed and apportioned against the said lot was its proportionate share of the cost of making said improvement, and was the sum of $457.59, and alleges issuance of said tax bill to J. H. Hinerman, the contractor, for said sum for doing said work and against the said lot.
The sufficiency of petition in suits upon tax bills has been before the Courts of Appeals in numerous cases. Among them may be mentioned Carthage ex rel. v. Badgley, 73 Mo. App. 123; Fellows v. Dorsey, 171 Mo. App. 289, 157 S. W. 995; City of Gallatin v. Netherton, 189 Mo. App. 24, 176 S. W. 495.
We are of the opinion that the objection to the sufficiency of the petition was properly overruled.
The resolution declaring it was necessary to make the improvements was passed by the council on the 2d day of July. 1917. The answer is long, but its essential allegations may be summarized.
The defendant averred that the initial resolution was not published according to law, and that the council acquired no jurisdiction; that said resolution was ordered published for two consecutive weekly insertions in the Twice a Week Democrat, a newspaper published twice a week in said city; that the first publication was on July 3, 1917, and that the last publication was on July 10, 1917; that a remonstrance signed by a majority of the resident property owners owning a majority of the front footage was filed on July 9, 1917; that later, on July 16, 1917, there was another protest filed, signed by a majority of the resident property owners, owning a majority of the front footage abutting on the part of said streets sought to be paved; that, while part of the names on each protest were the same, yet there were seven names of resident property owners on the protest filed on July 9, 1917, whose names were not on the protest filed July 16, 1917.
In this connection it may be stated as a fact shown by the record that the resolution was ordered to be published for four consecutive insertions, and was published in said newspaper for 2 weeks consecutively, in its twice a week issues, that is, on July 3, July 6, July 10 and July 13, 1917.
The answer alleges that the council, after the filing of said protests, procured a committee to see those remonstrating, and avers that the last day for protesting was on July 20, 1917, and the last day for withdrawing from such protest was July 20, 1917, and that the withdrawals of 10 resident property owners were permitted to be filed and were filed on July 23, 1917; that the regular meeting of said city council was on the first Monday evening of each month, but that said council met at 9 o'clock on the morning of July 24th, without giving any notice to the protesting property owners, and passed a resolution permitting the names of 10 of the protesting property owners to be withdrawn from the remonstrances; and it is alleged that the action of the council in allowing and considering said withdrawals filed on July 23, 1917, was a mistake of law, and that under the law it was not permitted that said 10 property owners could withdraw from said remonstrances after July 20, 1917.
It is alleged that the council was not in legal session on July 24, 1917, when it passed the ordinance making the finding and declaring that a majority of the property owners who were also owners of a majority of the front footage had not remonstrated, and that the council, in its action at that time, acted secretly and fraudulently, and ignored the remonstrance filed July 9th, and that said remonstrances combined contained the names of about two-thirds of the resident owners. At this point it may be stated that the record of the council shows that the council considered both of said protests. It is alleged that the council found that there were 58 resident property owners owning property on that part of the street sought to be improved; that of said 58, 23 remonstrated against having the work done, leaving 35 in favor of having the work done; that there should have been counted 33 property owners as remonstrating, and only 25 counted in favor of having the work done by reason of the mistake of law made by the council in allowing withdrawal of said 10 persons from the remonstrance.
It is alleged that the statute (section 9255 of the Session Acts of 1911, p. 340; section 8324, R. S. 1919), which purports to give to the city council the right to pass on the question whether a legal remonstrance has been filed, and gives no opportunity for parties in interest to appear, and which makes the finding of the council final and binding, after the execution of the contract, deprives the protesting property owners of their day in court, and deprives them of their property without due process of law, in violation of section 30 of article 2 of the Constitution of Missouri, and in violation of the Fourteenth Amendment to the Constitution of the United States. The answer further alleges that the resolution published by the council failed to apprise the property owners of the amount of grading to be done on said street, and that the work of grading and paving was done in such an unskillful manner, and that it was of such poor materials, as to make it of no real benefit to the property owners.
The answer further avers that the statute law of Missouri, in that it purports to confer jurisdiction upon the city council by publication in a newspaper only, without notice to defendant, for the purpose of fixing a lien or tax upon the property of defendant, is in violation of the due process clauses of the state and federal Constitutions, and under the latter is an abridgment of the privileges or immunities of defendant as a citizen of the United States.
The reply was a general denial.
II. Defendant objected to the introduction of the tax bill in evidence, and urged then, and does now, that it should have stated separately the charges made against defendant's property for excavating, grading, curbing, and paving, and that mingling them is a violation of section 8323, and a violation of the law of liens. It is suggested that section 8323 enacts different apportionments for grading, paving, curbing, and guttering, and that a part of the work was not divisible by frontage only.
Section 8323 has the following provision:
"The cost of grading streets and alleys shall be charged against the lots and tracts of land fronting or abutting on the street or alley, or part of same, so...
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