Hill v. Swingley

• Decision Date: 18 December 1900
• Parties: HILL et al. v. SWINGLEY.
• Court: Missouri Supreme Court

60 S.W. 114

159 Mo. 45

HILL et al. v. SWINGLEY.

Supreme Court of Missouri.

December 18, 1900.

MUNICIPAL CORPORATIONS—SPECIAL ASSESSMENTS — SEWERS — ESTIMATED COST — EVIDENCE — ADMISSIBILITY — APPEAL AND ERROR —QUESTIONS REVIEWABLE.

1. Where an issue is decided in appellant's favor in the trial court, it will not be considered on appeal.

2. St. Louis City Charter, art. 6, § 28, directing that every ordinance for the performance of work shall be invalid which does not contain a specific appropriation from the proper fund, based on an estimate of the cost, and that the payment of contracts for such work shall be limited to such appropriations, does not render invalid a special assessment for constructing a district sewer at a cost in excess of the estimate; such sewer being constructed under article 6, § 22, requiring the payment therefor to be made by special assessment, which contains no such limitation.

3. Where the defense is alleged, in an action to recover a special assessment for a district sewer, that the sewer constructed was a public sewer, to be paid for by the municipality, and not by special assessments, it is not error to reject evidence of the dimensions and material of the sewer, and evidence showing that it is larger than certain public sewers constructed

by the city, since the dimensions and materials alone do not distinguish its character as a public or district sewer.

In banc. Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by John Hill and others against Willoughby S. Swingley on a special tax bill. From a judgment in favor of plaintiffs, and from an order overruling a motion for a new trial, defendant appeals. Affirmed.

Julian Laughlin and Thos. S. Meng, for appellant. Collins & Jamison and D. Goldsmith, for respondents.

VALLIANT, J.

Suit upon a special tax bill issued by the city of St. Louis against defendant's property for the building of a district sewer. The answer of the defendant asserts the invalidity of the tax bill on several grounds. Those to which our attention is chiefly directed in the brief of appellant are that the ordinance and contract under which the sewer was built were in violation of the city charter, and the provisions of the city charter relied on by plaintiffs are in violation of the constitution of the United States and of this state. There was a reply setting up an alleged transaction between plaintiffs and defendant relating to the connection of his private sewer with the sewer in question, whereby it was claimed that defendant was estopped to deny the validity of the tax bill. But upon the trial that issue seems to have been decided, if at all, in appellant's favor, and is not, therefore, for review on his appeal. The evidence showed that the estimate of the cost of the sewer submitted to the municipal assembly by the board of public improvements was $92,000, and that when the work was done the total cost assessed against the property in the district was $108,438.

1. The clause of the city charter deemed by appellant to have been violated is section 28, art. 6: "Every ordinance requiring such work to be done shall contain a specific appropriation from the proper revenue fund, based upon an estimate of cost, to be indorsed by the president of the board of public improvements on said ordinance, for the whole of the cost of each street, part of street, or other object respectively; and every contract shall contain a clause to the effect that it is subject to the provisions of this chapter and that the aggregate payments thereon shall be limited to the amount of such specified appropriation," etc. It is very apparent that that...