Jaicks v. Merrill

• Decision Date: 22 December 1906
• Citation: 98 S.W. 753,201 Mo. 91
• Parties: JAICKS v. MERRILL.
• Court: Missouri Supreme Court

98 S.W. 753

201 Mo. 91

JAICKS v. MERRILL.

Supreme Court of Missouri, Division No. 2.

December 22, 1906.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS—TAX BILLS—VALIDITY OF SIGNATURE BY CLERK.

Kansas City Charter, art. 9, § 15, requiring special tax bills to be made out by the president of the board of public works, or in his name by some one authorized by resolution of the board, and to be signed by him, does not require him to do all the clerical work of making out the bills, and where bills issued were signed by the president, by a clerk authorized by resolution of the board to sign such bills, the provisions of the charter were substantially met.

2. SAME — ENFORCEMENT OF SPECIAL TAX—PLEADING.

In a suit on special tax bills issued for a street improvement, plaintiff's allegation that installments were "due and unpaid," tendered an issue of the maturity of such installments, and he could show that, by city charter provisions, the installments had become due on account of default in payment of other installments.

3. SAME.

Where, in an action on special tax bills issued under the Kansas City charter on account of public improvements, the holder establishes the genuineness of the bills, and that he has receipted the city therefor, he establishes prima facie, not only the validity of the bill, the doing of the work, and the furnishing of material charged for, but that installments due upon their face are still due and unpaid, and therefore shows prima facie a right to recover on installments not due upon their face under Charter, art. 9, § 23, making the unmatured installments of tax bills become due upon default in payment of matured installments or interest thereon.

4. SAME—CHARTER—CONSTITUTIONAL LAW.

Kansas City Charter, art. 10, § 31, providing that if the park commissioners recommend that boulevards, etc., in park districts be improved and payment made in tax bills, the council shall order such work, gives the board power of recommendation, and not legislation, and where the council adopts a recommendation of the commissioners, the section will not be construed to infringe Const. art. 9, §§ 16, 17, requiring certain city charters to provide for two houses of legislation.

5. SAME—VALIDITY OF ORDINANCE—NECESSITY FOR RECOMMENDATION BY BOARD.

Kansas City Charter, art. 10, § 31, authorizing the improvement of boulevards, etc., in park districts on the recommendation of the park commissioners, is not in conflict with, but constitutes an exception to, article 9, § 2, authorizing the common council to pave streets, alleys, etc., where the board of public works indorses its recommendation on the resolution or ordinance therefor, and hence an ordinance for the improvement of a boulevard in a park district did not require the indorsement thereon of the recommendation of the board of public works.

6. SAME—ESTABLISHMENT OF GRADE.

Where a street was graded under an ordinance conforming to Kansas City Charter, art. 10, § 31, authorizing the grading, paving, etc., of boulevards, etc., in park districts upon the recommendation of the park commissioners and was afterwards paved under the same charter provision, tax bills held by the contractor were not void because the paving had been constructed to a grade fixed by an ordinance which did not have indorsed thereon the certificate of the board of public works that the grade conformed to its system of grades expressly provided

for by article 17, § 36; there being no conflict between the two charter provisions.

7. SAME—DEFENSE TO TAX BILLS—NECESSITY FOR PLEADING DEFECTS IN PRELIMINARY PROCEEDINGS.

Where a property owner seeks to defeat tax bills issued for a street improvement, and held by the contractor on the alleged invalidity of the proceedings upon which the contract was awarded, the answer must affirmatively and specifically plead the defects.

8. SAME.

Where a property owner knows that a street abutting upon his property is being paved, and does not notify the contractor of alleged defects in the proceedings under which the contract was awarded or attempt to stop him, and it does not appear that the price is unreasonable or that the work does not conform to contract, the tax bills held by the contractor will not be defeated on account of such defects.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Andrew Jaicks against Martha G. Merrill. From a judgment for plaintiff, defendant appeals. Affirmed.

Johnson & Lucas, for appellant. T. B. Buckner, for respondent.

GANTT, J.

This is an action on special tax bills for macadamizing Benton boulevard from Independence boulevard to Fifteenth street in Kansas City, Mo., under an ordinance of said city numbered 9,440, approved March 14, 1898; said special tax bills being numbered 9 and 12, and issued in installments. The improvement for which these tax bills were issued was conducted by the park board of Kansas City, for the changing of Walrond avenue, a street in Kansas City, into Benton boulevard. The case came on for hearing at the April term, 1903, of the circuit court before Judge Teasdale, one of the judges of said court, and the jury was waived and after the hearing of the evidence the court rendered judgment for the plaintiff, awarding the plaintiff a lien upon the adjoining lots of the defendant. In due time a motion for a new trial was filed, heard, and overruled, and the defendant appealed to this court. Inasmuch as the defendant challenged the constitutionality of section 31 of article 9 of the Kansas City charter, the appeal is properly in this court. The evidence tended to prove that, on the 18th of June, 1899, the board of park commissioners of Kansas City advertised for bids for building the roadway and macademizing Benton boulevard; for which work the tax bills in suit were issued. On the 3d day of August, 1899, the contract for this work was awarded to the plaintiff. After the contract was let to him, the board of park commissioners sent an ordinance to the common council, asking that said contract be confirmed. This ordinance was referred by the council to the public improvement committee, and was passed by the council about the 10th or 12th of October, 1899. Soon after said contract was confirmed, the plaintiff commenced the work, and continued the same uninterruptedly until finished. The work was finished within the time named in the contract and the tax bills therefor were issued on the 30th day of June, 1900, and were delivered to the plaintiff and receipted for by him on the tax bill register on the 2d day of July, 1900. The kind and quality of material named in the contract was furnished by the plaintiff. After a careful examination and reading of the whole record, we can find no objection made by the defendant that the work was not completed in all respects as plaintiff had undertaken and agreed to do by his contract, nor that it was not completed within the time mentioned therein. No evidence was introduced that the price charged was unreasonable. The errors complained of are those alleged to have been committed by the park board and the city authorities. These alleged errors will be considered in connection with the assignments of error on this appeal.

1. It is insisted that the special tax bills sued on are not shown to have been made out and executed by the officials of the city as provided by the city charter. The charter of Kansas City was adopted and became operative May 9, 1889, pursuant to the power conferred by section 16, art. 9, of the Constitution of Missouri upon cities having a population of more than 100,000 inhabitants. By section 31 of article 10 of the charter, it is provided: "The board of park commissioners shall have power to cause any road, parkway, boulevard, or avenue, or part thereof, which may be under its control or management, to be graded, regraded, paved, repaved, guttered, reguttered or otherwise improved or repaired, including the construction and repair of bridges, viaducts and sidewalks in such manner and at such times and with such material as said board may determine, and may pay for such work or improvements or any part thereof out of the funds not otherwise appropriated belonging to the park district in which such work or improvement is made, or out of the general park fund: provided, however, that if the board of park commissioners shall recommend to the common council that any such work to be done and the payment of the whole, or any portion thereof, be made in special tax bills, it shall be the duty of the common council, by ordinance, without petition of the property owners therefor, or right of remonstrance, to order such work to be done, in which case the board of public works of said city shall apportion, or cause to be apportioned, the cost of said work of improvement and issue special tax bills therefor, or for any portion thereof so ordered to be paid in tax bills, in the same manner and with the same effect as the cost of similar work or improvements is apportioned, and tax bills in payment therefor issued, in such city for public improvements upon streets not under the control or management of such board of park commissioners provided, further, that when any parkway or boulevard has been constructed, paved, guttered and otherwise improved at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the park district in which the same is situated, or out of the general park fund. The contract for doing the work of constructing and furnishing material for any such improvement shall be let by the said board of park commissioners in such manner as shall be provided by ordinance; and such work shall be done under the supervision and control of the board of park commissioners."

It is insisted, first, that the tax bills in this case were not made out and issued, as provided in Kansas City Charter, art. 9, § 15, which provides: "All special tax bills...