Akers v. W. H. Kolkmeyer & Co.
| Decision Date | 05 January 1903 |
| Citation | 71 S.W. 536,97 Mo.App. 520 |
| Parties | BART AKERS, Appellant, v. W. H. KOLKMEYER & COMPANY, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.
AFFIRMED.
STATEMENT BY BROADDUS, J.
This is a suit in equity to have declared as void a certain taxbill and to remove the cloud upon plaintiff's title to lots 271, 272 and 273 in Columbia. The bill, or petition, alleged that the city of Columbia is a city of the third class, that defendants Kolkmeyer are partners engaged in the business of contracting, that plaintiff is the owner of said lots, that the city council of said city passed an ordinance establishing sewer district No. 4 and let a contract to defendants Kolkmeyer for the construction of a district sewer therein; that afterwards the city council passed an ordinance directing the mayor and city clerk to issue a taxbill for $ 161.75 against said real estate; that said taxbill was so issued, delivered to the defendants Kolkmeyer and assigned by them to the defendant bank, as collateral security. The petition also alleged that said taxbill is void for five reasons; first, that while the city council attempted to establish a public sewer, yet no ordinance establishing a public sewer was ever passed; second, that the district sewer did not connect with any public or other district sewer in said city, nor with the natural course of drainage; third that the city engineer did not compute the whole cost of said district sewer, and did not apportion the same against the lots and pieces of ground, and did not report the same, by bill or otherwise, to the city council; fourth, that the ordinance establishing said district sewer did not state the size, dimensions nor materials out of which the same was to be constructed; fifth, that there was no petition for said district sewer, and no necessity for the same, for sanitary purposes or otherwise, and that the actions of said city council were unreasonable and oppressive, as there are no water pipes near said district sewer.
The answer of defendant admitted the construction of the sewer and the issuance of the taxbills, and denied all the other allegations of the petition.
The evidence disclosed that in May, 1900, the city council of Columbia submitted a proposition to the qualified voters of said city to incur an indebtedness of $ 18,500 for the purpose of establishing a system of main public sewers for said city, which was carried and bonds were issued and sold and the proceeds covered into the city treasury. In June of that year the city entered into a contract with one Hiram Phillips to plan and lay out a proposed public and district sewer system; whereupon said Phillips prepared and submitted to the city council certain surveys, maps, profiles, plans and specifications and details for the construction of a public and district sewer system, which was accepted by resolution of the city council on July 17, 1900. In August 1900, a contract was let under which the main public sewers were constructed in accordance with the plans and surveys made by said Phillips. On March 12, 1901, the main public sewers were formally accepted by the council and were paid for out of the money in the city treasury. In the meantime the council had passed an ordinance on the subject of sewers which provided that the work in their construction should be in compliance with said plans and specifications; and in May 1901, the city council by ordinance adopted the said maps, plans, etc., made by Phillips showing in detail the location, connections and dimensions of the main and district sewers and described the materials to be used in their construction. At this time the city council established sewer district number four. On May 21, 1901, the council passed an ordinance which declared that: "The sanitary condition within districts Nos. 1, 2, 3, 4 is such as to require the immediate construction of sewerage in said districts, providing for the route, material and manner of constructing the sewers in the respective districts."
It is admitted that the district sewer in question was established by ordinance.
While the work was in progress on said sewer the city engineer, on account of ill health, became unable to perform the active duties of his office, in consequence of which one E. B. Cauthorn was employed as special engineer for the sewer work. And on October 31, 1901, the regular city engineer's resignation was accepted and Cauthorn was at once appointed in his place and assumed and discharged the duties of the office without having given his official bond and taking the oath of office as such. On November 8, 1901, having computed the cost of the sewer and apportioned it against the several lots, he made and filed his report although it was not marked as filed at that time.
The plaintiff offered to prove that there was no necessity for said district sewer for sanitary purposes; that the health in that part of the city was good, and that there were no water pipes or connections within three blocks of said district sewer, which the court excluded. On the hearing, the court dismissed plaintiff's bill and he appealed.
Judgment affirmed.
N. T. Gentry for appellant.
(1) The law has long been settled in this State, that proceedings by municipal corporations to compel the owners of land abutting on a street or alley to pay for improvements in front of their property are in invitum, and a strict performance of all the conditions imposed is necessary, in order to fasten a charge or lien on the property of the citizen. Guinotte v. Egelhoff, 64 Mo.App. 366; Fruin v. Geist, 37 Mo.App. 512; Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374; Westport ex rel. v. Mastin, 62 Mo.App. 654; West v. Porter, 89 Mo.App. 153; Knapp v. Kansas City, 48 Mo.App. 492; St. Louis v. Telephone Co., 96 Mo. 628; Joplin v. Luckie, 78 Mo.App. 13; Dillon on Munic. Corp. secs. 89, 90 and 91; Forry v. Ridge, 56 Mo.App. 620. (2) No public sewer was ever established in Columbia, because no ordinance establishing such sewer was ever passed by the city council nor approved by the mayor. Sec. 5847, R. S. 1899; Kolkmeyer v. Jefferson City, 75 Mo.App. 683; Heidelberg v. St. Francois Co., 100 Mo. 74; McKissick v. Mt. Pleasant Tp., 48 Mo.App. 416; Crutchfield v. Warrensburg, 30 Mo.App. 456; Thrush v. Cameron, 21 Mo.App. 394; Cape Girardeau v. Fongen, 30 Mo.App. 551; Poplar Bluff v. Hoag, 62 Mo.App. 675; Nevada v. Eddy, 123 Mo. 558; Trenton v. Coyle, 107 Mo. 193; Irvine v. Devors, 65 Mo. 625. (3) And our Supreme Court held that a city is not liable to a property-owner for the change of grade in one of its streets, unless said grade was ordered changed by an ordinance, duly passed, and this, too, when the city council appointed a committee to superintend the work, and the work thus done by its committee, was accepted by the council and paid for. Thompson v. Boonville, 61 Mo. 282; Gehling v. St. Joseph, 49 Mo.App. 430; Beatty v. St. Joseph, 57 Mo.App. 251; Werth v. Springfield, 78 Mo. 107; Rowland v. Gallatin, 75 Mo. 134; Stewart v. Clinton, 79 Mo. 609; Kolkmeyer v. Jefferson City, 75 Mo.App. 682; Rives v. Columbia, 80 Mo.App. 176; Reid v. Peck, 163 Mo. 338; Koeppen v. Sedalia, 89 Mo.App. 648; Steubuer v. St. Joseph, 81 Mo.App. 273; Johnson v. School District, 67 Mo. 319; Cheeney v. Brookfield, 60 Mo. 53; State v. Treasurer, 22 Ohio St. 144; People v. Peters, 4 Neb. 254; Taylor v. Wayne, 25 Iowa 447; Clark v. School Directors, 78 Ill. 474; Bayha v. Taylor, 36 Mo.App. 437; Heman v. Payne, 27 Mo.App. 481. (4) The only way that a city can ratify an unauthorized act of its officers is by an ordinance, duly passed and approved. Eichenlaub v. St. Joseph, 113 Mo. 395; Tiedem. on Munic. Corp., sec. 170; State ex rel. v. Milling Co., 156 Mo. 634; Unionville v. Martin, (not yet reported). (5) No ratification pleaded in answer. Mize v. Glenn, 38 Mo.App. 104; Hudson v. Railway, 101 Mo. 29; Bliss on Code Plead., sec. 352; Ferneau v. Whitford, 39 Mo.App. 316; Webb v. Allington, 27 Mo.App. 571; Bank v. Armstrong, 62 Mo. 59; Noble v. Blount, 77 Mo. 235; Kirby v. Railway, 85 Mo.App. 350; Bank v. Westlake, 21 Mo.App. 572; Nichols v. Larkin, 79 Mo. 264; A. & M. Ass'n v. Delano, 108 Mo. 221; Musser v. Adler, 86 Mo. 449. (6) District must connect with public sewer. Kansas City ex rel. v. Ratekin, 30 Mo.App. 416; Bayha v. Taylor, 36 Mo.App. 427; Kansas City ex rel. v. Swope, 79 Mo. 446; St. Joseph ex rel. v. Wilshire, 47 Mo.App. 125; Heman v. Payne, 27 Mo.App. 481. (7) Necessity of engineer's report. R. S. 1899, sec. 5848; R. S. 1889, sec. 1542; Marshall ex rel. v. Rainey, 78 Mo.App. 421; Mills v. Detroit, 95 Mich. 423; Erie v. Brady, 150 Pa. St. 462; S. C. 24 A. 641; Merritt v. Porchester, 71 N.Y. 309; Erie v. Brady, supra. (8) Was Mr. Cauthorn city engineer? Section 159 of the city's Revised Ordinances for 1900. (9) The ordinance establishing the district sewer does not state the size, dimensions nor materials out of which said sewer is to be constructed; this is a fatal omission. St. Joseph ex rel. v. Wilshire, 47 Mo.App. 125; St. Louis v. Clemens, 43 Mo. 395; Gilbreath v. Newton, 30 Mo.App. 392; Dun v. McNealy, 75 Mo.App. 220; Manfg. Co. v. Hamilton, 51 Mo.App. 135; Cole v. Skrainka, 105 Mo. 308; 2 Dillon on Mun. Corp. (4 Ed.), sec. 811; Oster v. Jefferson City, 57 Mo.App. 493.
E. W. Hinton, Gillespy & Conley and W. S. Pope for respondents.
(1) When the city accepted the main sewer and paid for its construction with public funds regularly appropriated by ordinance for that purpose, it thereby recognized and established it as a main public sewer, and that, too, by ordinance. Foncannon v. Kirksville, 88 Mo.App. 279; Devers v. Howard, 88 Mo.App. 253; Dooley v Kansas City, 82 Mo. 444; State ex...
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