City of Rockport ex rel. Lynch-McDonald Construction Company v. McMichael
| Decision Date | 08 November 1926 |
| Citation | 288 S.W. 785,222 Mo.App. 540 |
| Parties | CITY OF ROCKPORT EX REL. LYNCH-McDONALD CONSTRUCTION COMPANY, APPELLANT, v. A. McMICHAEL ET AL., RESPONDENTS. * |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Atchison County.--Hon. John M Dawson, Judge.
Judgment reversed and remanded. (with directions).
W. C Ellison and Willard P. Cave for appellant.
Hunt & Hunt and Frazier & Mullins for respondent.
Trimble, P. J., absent.
This is an action on two special tax bills for certain paving done in the City of Rockport, Atchison county, Missouri, a city of the fourth class. The suit was instituted by the city at the relation of the construction company doing the paving which also included the necessary grading therefor.
The cause was tried to the court; the tax bills involved in the suit were introduced in evidence. There was also oral evidence introduced by plaintiff. At the close of plaintiff's evidence, defendants asked and the court gave an instruction in the nature of a demurrer, and judgment for defendants was thereupon entered of record by the court and plaintiff's action was dismissed. A motion for a new trial was overruled and plaintiff appealed.
The petition is in two counts, the first of which alleges that Rockport is a city of the fourth class; that relator, Lynch-McDonald Construction Company is a corporation duly organized and existing; that defendants W. H. Adamson, Geo. B. Donovan and J. V. Krusor are the trustees of Lodge No. 125, Independent Order of Odd Fellows, of Rockport, Missouri, owner of the lot involved in this suit. The petition alleges the passing by the board of aldermen of the city of Rockport of a resolution declaring it necessary to pave certain streets named therein, within said city; that said resolution was duly and timely published and printed in said city of Rockport, and that a majority of the resident owners of the real estate liable for taxation to pay for said paving did not, within ten days thereafter, file protest as requested by law; that in pursuance to said resolution the board of aldermen of said city, on July 23, 1919, passed, and the mayor approved an Ordinance No. 262, authorizing the paving of the streets named in the resolution; that thereupon the board of aldermen advertised for bids and having first had the city engineer make and return an estimate of the cost thereof, awarded the contract for said paving, including the necessary excavating therefor, to relators herein, at $ 5.35 per square yard of surface paved and $ 1 per cubic yard for necessary excavation; that said price did not exceed the estimate furnished by the city engineer; that said work was for paving Cass street in paving district No. 3; that said work was completed as per contract and accepted by the city of Rockport and an assessment to pay the cost thereof was legally and properly made by ordinance, and special tax bills were issued accordingly; that "the north twenty-five and one-half feet of lot No. 1, in block No. 14, in Nuckoll and White's Addition to the city of Rockport, in Atchison county, Missouri, having a frontage of 120 feet and--inches on said street so improved has been charged with said sum of $ 86.87 as a special tax for said improvement . . .;" that payment of said tax bill, numbered 48, has been demanded and refused. Judgment is asked in the sum of $ 86.87 with interest and for enforcement of a lien against said property.
The language of the second count is the same as the first, except as to description of the property, and is based upon the paving of Main street in said city of Rockport for a distance of 1320 feet, and states that the north twenty-five and five-tenths feet of Lot 1, Block 14 of Nuckoll & White's addition fronts one hundred and forty-five and one-half feet on Main street in said city and is in paving district No. 1 of said city, being the same lot as described in the first count; that said property was charged with the sum of $ 1719.13 and a special tax bill, No. 84, regularly issued therefor; that payment thereof has been demanded and refused. Judgment in said sum with interest and enforcement of a lien is asked.
The answer is, first, a general denial, and as a special defense, charges as to the first count of the petition, that special tax bill No. 48 seeks to charge the property of defendants with a certain sum, towit, $ 8.85, for bringing the streets, avenues and other highways in paving district No. 3 to the established grade; that the resolution passed July 2, 1919, does not include therein, nor describe the work of bringing such streets, avenues and other highways to established grade, and that by reason thereof, said tax bill is void as to said sum of $ 8.85; that the property described in special tax bill No. 48 is not within the limits of paving district No. 3 and is not, therefore, subject to the lien asked.
It is alleged in the answer that the cost of the paving in district No. 3 is in excess of the total estimated cost by the city engineer by $ 910.36; that special tax bill No. 48 sued on contains a proportionate share of such excessive levy and assessment and is, therefore, void as to such proportionate excess; that said tax bill No. 48 is void upon its face in that it does not set forth therein the number of cubic feet of earth relating to the lots and pieces of ground mentioned therein; does not set forth the number of square yards of paving, the charges per square yard and the aggregate sum of such paving assessed against the lots and pieces of ground mentioned in the tax bill, nor does it mention the name of the street upon which the said lot or pieces of ground abut, as required by law. The answer also charges that the proportionate cost of paving the squares and areas as formed by the crossing or meeting of intersecting streets and other highways and parts thereof, in said district No. 3, purporting to be chargeable against defendant's property, was not levied as a special assessment against said property, but that same was included in the special tax bill sued on and that the said special tax bill is therefore void; that the said city and relator did not enter into a written contract for the doing of said work relating to the improvements in district No. 3, as required by law; that the cost of constructing the sewer in said district is in excess of the contract therefor, and that the tax bill sued on includes a proportionate share of said excess and therefore is void; that said tax bill is void because it contains a proportionate share of the cost of the city water used in the work paid by relator to the city as per contract and is therefore void; that the said tax bill is void for the reason that the engineering cost of said improvement is included proportionately in said tax bill, and is therefore void, under section 21, article 2 of the Constitution of Missouri.
The answer to the second count is essentially the same as to the first, excepting as to amount, and alleges that tax bill No. 84 is void because it includes a proportionate share of the engineering cost of five per cent of the...
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