Exter v. Kramer

• Citation: 291 S.W. 469,316 Mo. 762
• Decision Date: 15 February 1927
• Docket Number: 25893
• Parties: Fred C. Exter, Appellant, v. August Kramer et al
• Court: Missouri Supreme Court

291 S.W. 469

316 Mo. 762

Fred C. Exter, Appellant, v. August Kramer et al

No. 25893

Supreme Court of Missouri

February 15, 1927

Appeal from Hannibal Court of Common Pleas; Hon. Madison C Schofield, Judge.

Affirmed.

Rendlen & White for appellant.

(1) A tax bill by statute is prima-facie evidence of the validity of the bill, of the work and liability of the property to the charge stated in the bill. It makes a prima-facie case. Burden then rests on defendant of proving any fact on which he may rely to show its invalidity. Subdivision 13, sec 8758, R. S. 1919; Exter v. Kramer, 251 S.W. 918; Barber Asphalt Co. v. Ullman, 137 Mo. 560; Moberly v. Hogan, 131 Mo. 19; Huling v. Bandera Flag Stone Co., 87 Mo.App. 359; City v Badgley, 73 Mo.App. 123; St. Louis v. Armstrong, 38 Mo. 29. (a) Assessment cannot be questioned except in case of fraud or manifest mistake and then only on "clear proof of great force." Exter v. Kramer, 251 S.W. 918; 5 McQuillin on Munic Corp. secs. 2117, 4506; St. Louis v. Excelsior Brewing Co., 96 Mo. 677. (b) It is the duty of this court "to assume that the municipal authorities have proceeded according to law, and not in violation thereof, . . . that public officers are presumed to have rightly acted until the contrary is clearly made to appear." Defendant must unmistakably establish that the issuance of this tax bill does not conform to law. Barber Asphalt Pav. Co. v. Ullman, 137 Mo. 568. (2) Property owners who sign petition for improvements, urge on the city the work to be done, to be paid for by special assessments against their abutting property, as did defendants, are estopped to assert municipality or its officers had no power to make the improvement or to levy the assessment therefor. 5 McQuillin, Mun. Corp., sec. 2121. (a) Defendant is also estopped to contest the validity of the tax bills issued in payment therefor or to assert that the law under which the improvement was made is unconstitutional. Exter v. Kramer, 251 S.W. 918; Conde v. Schnectady, 164 N.Y. 258; State ex rel. v. Mitchell, 31 Ohio 592; Columbus v. Sohl, 44 Ohio St. 479; Bidwell v. Pittsburg, 27 Am. Rep. 662. (b) Public works are undertaken, as everyone knows, under authority delegated by law to public officers, and there is little or no reason why a property owner who has full notice of what is being done should be allowed to ask for the work, stand by in silence until the work is completed, and then escape paying for the benefits his property has received. Johnson v. Duer, 115 Mo. 381; Herman on Estoppel, sec. 1221; Ross v. Stockhouse, 114 Ind. 200; Gibson v. Owens, 21 S.W. 1110. (3) The city had authority to order this improvement and to issue special tax bills therefor against abutting proprietors. Sec. 8758, R. S. 1919, sec. 9618, R. S. 1909. (a) It will be noted that independent of the amendment of Subdivision I, by Laws 1913, p. 535, the city had the broad right by the various subdivisions of Sec. 8758, R. S. 1919 (Sec. 9618, R. S. 1909), to pay for the cost of doing various things on the streets either out of the general revenue fund or by special assessment, the option being given to the city by the many subdivisions of the act, to choose its method of payment. The law is made flexible in the hands of the city authorities to be applied in their discretion.

Joseph F. Barry and Berryman Henwood for respondent.

(1) The statutory rule of evidence imperfectly quoted by appellant, in beginning his brief, is, by the language of the statute itself, applicable only to "special tax bills issued by any such cities for any purpose authorized by Sections 9618 to 9620, inclusive." The tax bill in suit was not issued for any purpose authorized by Sections 9618 to 9620 or any law of the State; hence the rule attempted to be invoked has no application or force in determining that point. (2) The City of Hannibal had no lawful authority to issue or cause to be issued, the special tax bill in suit or to levy a special assessment on the abutting property owners on Martin Street to pay for the culvert constructed therein. Neither its charter nor any law of the State vested it with such authority. Charter of Hannibal, Art. IV, sec. 61; R. S. 1909, sec. 9618; R. S. 1919, sec. 8758; Chillicothe ex rel. v. Henry, 136 Mo.App. 468; St. Louis v. Bell Tel. Co., 96 Mo. 623; St. Louis v. Bell Place Realty Co., 259 Mo. 126. The words "or otherwise improving the roadway of streets," following the particular words "grading, paving, macadamizing," in the same section, must be construed in connection with the latter particular words and restricted to improvements to the roadway of the same character and purpose. M. E. Church v. City of Wyandotte, 31 Kan. 721; 6 Words & Phrases, 5107. (3) The Act of March 25, 1913, purporting to repeal subdivision 1 of Sec. 9618, R. S. 1909, and enact a new subdivision in lieu thereof, is unconstitutional and void because said act is in fact an attempt to amend said section in violation of Section 34 of Article IV of the Constitution of Missouri, and it fails to set out said section as a whole, as amended. Laws 1913, p. 535; State ex inf. v. Herring, 208 Mo. 708; Cox v. Railroad, 174 Mo. 588; State v. Bennett, 102 Mo. 356; State ex rel. v. Miller, 100 Mo. 439; State v. Hendrix, 98 Mo. 374; Morrison v. Railroad, 96 Mo. 602; State v. Thurston, 92 Mo. 325; State v. Chambers, 70 Mo. 625.

Gantt, J. All concur, except Graves, J., absent.

OPINION

GANTT

This is a suit to enforce the lien of a special tax bill, issued by the city of Hannibal, for a street improvement made on Martin Street in that city, tried in the Hannibal Court of Common Pleas before the court, a jury having been waived. Judgment was for the defendants, and plaintiff appealed. The case was before this court on a former appeal. It is stipulated between the parties that since the trial of this cause and pending appeal, the defendant Augusta Kramer, wife of defendant August Kramer, has died, and that title to the property in question was in August Kramer and Augusta Kramer as tenants by the entirety; and that upon the death of Augusta Kramer the fee to said property vested in the defendant August Kramer.

The facts are as follows: Hannibal has less than thirty thousand inhabitants, and operates under a special charter. Respondent is the owner of the property abutting on Martin Street, and at this place there was a deep ditch, extending in a zigzag course lengthwise in the roadway of the street for a distance of about one block. This ditch, with the water at times running in it, made the street impassable for vehicular traffic. It is in evidence that the respondent and other owners of property abutting on the street at this place repeatedly petitioned and urged the city council to do the work necessary to make the street passable for vehicular traffic. It was determined by the city engineer that it was necessary in order to improve the street to construct a culvert, four feet square, in a zigzag direction, in the roadway of the street, for a distance of about one block. It is also in evidence that the abutting property owners agreed with the city to pay for a construction of a culvert if the city would grade the street. There is evidence that a written petition was presented to the city council, although it could not be found and was not introduced in evidence. Witnesses testified that abutting property owners appeared many times before the council and city engineer, and orally urged the improvement of the street. There was some evidence that respondent was present, with other property owners, at these appearances before the council and before the city engineer. There was no evidence that respondent signed a petition to the council asking that the improvement be made. Respondent denied that he was present at any council meeting or in the city engineer's office asking for or urging the improvement; and he denied the alleged agreement with the city council to pay, with other abutting property owners, for the construction of a culvert if the city would grade the street. Appellant and respondent engaged in conversation, near respondent's home, while the culvert was being constructed; and appellant testified that respondent stated he had been trying to get this work done for a long time, and he further testified that respondent made no protest against the construction of the culvert until after the work had been completed. Respondent lived about fifty feet from the place where the culvert was being constructed, and saw, without protest, the construction of the culvert. He denied that he made the above statement to appellant, and testified that he told appellant at the time of the conversation that he would not pay for the construction of the culvert. It is admitted that after the construction of the culvert and after the street at this place had been graded by the city, it was passable for vehicular traffic, and that the improvement was beneficial to the property abutting on this part of the street. Lot 15 in Block 11 of Wardlaw's Addition, although abutting on Martin Street, was omitted from the original ordinance and from the assessment ordinance. Lots 9, 10, 11 and 12 in Block 14 of Wardlaw's Addition, although not abutting on Martin Street, were included in these ordinances and assessed as benefited by the improvement. The contract provided for the payment of about $ 1500 for the construction of the culvert. There is no evidence that the work was not properly done, although abutting property owners, including the respondent, petitioned the council, after the completion of the culvert, to reject the same on the ground that the work was not properly done. On completion of the culvert in due time and its acceptance by the city, the tax bill for $ 69.60, in suit, was...