Neenan v. Smith

Decision Date31 August 1872
PartiesJOHN NEENAN, Respondent, v. FRED. W. SMITH, Appellant.
CourtMissouri Supreme Court

Appeal from Buchanan Court of Common Pleas.

F. Van Waters, Hall & Oliver, and B. F. Loan, for appellant.

I. The causes of action in this case rest upon an exercise of the taxing power. From necessity this power must be limited in its extent to the value of the property upon which it is exercised; there is nothing beyond on which the power can act. (City of Carondelet v. Picot, 38 Mo. 131.) The certified accounts read in evidence are not prima facie evidence that the defendant is indebted to the plaintiff in the several sums of money therein set forth. (City of Carondelet v. Picot, supra.) The fifth section of the amended charter of the city of St. Joseph, approved February 8, 1865 (Rev. Ord. City of St. Joseph, pp. 47-8), among other provisions contains the following: * * * “And each certified bill shall be a lien against the lot of ground described therein,” * * * and “shall, in any action brought to recover the amount thereof, be prima facie evidence that the work and materials charged in such bill have been furnished, and the liability of the person therein named as the owner of such property.” The true construction of the latter clause is to make said certified bill prima facie evidence of the liability of the person therein named as owner, in a suit to enforce the lien given in the first clause, to the extent of his ownership in such lot and no further. No general judgment can be given in this case upon which an execution could be sent to another county in this State, and the defendant's property sold to pay a tax assessed against property in this city for the improvement of its public thoroughfares.

II. The improvement of the public thoroughfares of the city at the expense of the owners of the adjacent property is the exercise of a naked power. Its requirements must be strictly pursued before any rights under it can be acquired. No presumptions are indulged in of their proper performance, and he who would invoke the aid of this authority to maintain a suit in court must show that it has been exercised within the limits and in the manner prescribed by the act of its creation. (Haegele v. Malinckrodt, 46 Mo. 577; Shehan v. Gleeson, id. 100.)

III. Work is charged for and certified in the bills that was done on Eighth street. Eighth street is not included in the contract, and by the official map of Smith's addition to St. Joseph, which contains block 22 and which was given in evidence, Frederick avenue does not extend into Eighth street, but commences on Felix street. The words in the contract, “Frederick avenue from Eighth to Ninth streets,” did not extend the work across Ninth street, but limited the work on the avenue to Ninth street.

IV. The map filed by Smith, of the addition which contained block 22, was conclusive as to the location of said block, and of the streets, alleys and avenues which run through or were adjacent to said block.

Woodson, Vineyard & Young, and Vories & Vories, for respondent.

The certified bills sued on were properly read in evidence. They were made out by the proper officer, were proper in form, were proved to be genuine, and were by law made prima facie evidence in the cause. (Sess. Acts 1865, p. 435, §§ 4, 5; City of St. Louis v. Oeters, 36 Mo. 456; City of St. Louis v. Coons, 37 Mo. 44; City of St. Louis v. Armstrong, 38 Mo. 29; City of St. Louis v. Bernoudy, 43 Mo. 552; Shehan v. Gleeson, 46 Mo. 100.) The map is not conclusive as to the size of the lots and the length of streets if it was proved to be incorrect by actual measurement.BLISS, Judge, delivered the opinion of the court.

In a suit to collect certain bills for macadamizing a section of Frederick avenue, in St. Joseph, the plaintiff recovered a general judgment against the defendant, with an order of special execution against the several lots adjoining the improvement according to the engineer's assessment against them, and with the further order that if the lots shall not sell for sufficient to pay the amount of the judgment, a general execution shall issue against defendant's other property. This judgment is alleged to be erroneous, and for the reason that in assessing a special tax upon city lots for local improvements the tax is a charge upon the lots merely, and a judgment for its amount cannot be enforced by a personal execution.

The proceeding was instituted under section 5 of an act to amend the charter of St. Joseph, passed February 8, 1865 (Sess. Acts 1865, p. 435), which provides that when the work is completed the engineer shall assess the cost as a special tax against the adjoining property fronting upon the work done, each lot to be charged in proportion to the frontage, etc., and shall make out a certified bill against each lot, in the name of the owner, to be “delivered to the contractor for the work,” who shall proceed to collect the same by ordinary process of law in his or her name, etc., and each certified bill shall be a lien against the lot of ground described therein.

The plaintiff bases his right to a general judgment and execution upon the express authority given him as contractor to collect the certified bills by ordinary process of law in his own name, and were this an ordinary indebtedness the deduction would be a sound one; but in construing a statute reference must...

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