Barber Asphalt Pav. Co. v. Ridge

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGantt
Citation169 Mo. 376,68 S.W. 1043
Decision Date27 May 1902
PartiesBARBER ASPHALT PAV. CO. v. RIDGE et al.<SMALL><SUP>1</SUP></SMALL>
68 S.W. 1043
169 Mo. 376
BARBER ASPHALT PAV. CO.
v.
RIDGE et al.1
Supreme Court of Missouri, Division No. 2.
May 27, 1902.

MUNICIPAL CORPORATIONS — TAXATION — TAX BILLS — FILING OF OBJECTIONS — CONSTITUTIONAL LAW — PROCEDURE.

1. Kansas City Charter 1889, art. 9, § 23, providing that the owner of realty shall within 60 days from the date of issue of tax bills file with the board of public works a written statement of all objections to the validity of such tax bills, and in suit on any tax bill no objections shall be pleaded other than those which have been so filed, is a violation of the constitutional inhibition against deprivation of private property without due process of law.

2. In a suit on a tax bill defendant pleaded objections to the validity of the tax which constituted a good defense, which answer was stricken out on motion of plaintiff because defendant had failed to file such objections within 60 days from the issuance of the tax bill, as required by Kansas City Charter 1889, art. 9, § 23. On motion for a new trial, defendant raised the point that the charter provision requiring objections to be filed was unconstitutional. Held that, plaintiff not having pleaded the charter provision, the raising of the constitutional question on motion for a new trial was timely.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by the Barber Asphalt Paving Company against William E. Ridge and others. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action to enforce the lien of a tax bill issued by Kansas City under authority of section 23, art. 9, of the city charter of 1889, in favor of plaintiff, June 7, 1893, for the paving of Tenth street, in said city, from Cherry to Olive street, under Ordinance No. 4,572. The bill is payable in four installments of $122.51 each, the last installment being payable on the 31st day of May, 1897. The petition is in the usual form. The answer is a general denial and three special defenses, as follows: "Defendants further allege that Ordinance No. 4,572 of Kansas City, Missouri, approved September 21, 1892, authorizing the doing of the

[68 S.W. 1044]

work mentioned in said petition, and the contract for the same, provided that said work should be completed within sixty days from the time the contract therefor should take effect and become binding; that said contract took effect and became binding on the 27th day of October, 1892, but that said work was not completed until the ____ day of May, 1893, long after the expiration of said sixty days; that said work in this respect was not done in compliance with the terms of said contract and said ordinance, and for this reason the tax bill issued in payment for said work is null and void. Defendants further allege that the tax bill sued on is null and void for the reason that the amount thereof includes the cost of maintaining, keeping, and repairing the work mentioned in the petition for a period of five years from May 31, 1893, the date of acceptance of said work by the engineer of said Kansas City; that the mingling of the cost of said paving and said keeping, maintaining, and repairing are in violation of the charter of said city. Defendants further allege that the tax bill sued on is void for the reason that the ordinance of said city authorizing the paving of said Tenth street and the keeping, maintaining, and repairing the same for the period of five years, is in violation of the charter of said city, in this: that it authorized a contract for keeping, repairing, and maintaining said street for a period in excess of two years; that it authorized the letting the whole of said work under one contract; and authorized the whole cost of said work to be apportioned against the lots adjoining said street, and tax bills issued therefor. Defendants further allege that all the objections mentioned to the validity of said tax bill came to the knowledge of said defendants after the filing of suit thereon. Wherefore defendants pray for judgment and costs." The plaintiff filed its motion to strike out the said special defenses for the following reasons: "First. Because it is not pleaded or charged in the said answer that the defendants, or any of them, or the owner or owners of any of the real estate charged with payment of the tax bills mentioned and described in plaintiff's petition, or the owner or owners of any interest in such tract or parcel of real estate, within sixty days from the date of the issue of the said tax bills, filed with the board of public works a written statement of each or all or any of the objections or facts stated in such answer, or any statement of each and all or any objections which they, or any of them, may have had or may have to the validity of such tax bills, the doing of the work, the furnishing of the material charged for, the sufficiency of the work or materials charged for, the sufficiency of the work or materials therein used, and any mistake or error in the amount thereof. Second. Because each and all of the said allegations and facts constitute no defense to the cause of action set out in the plaintiff's petition." The court sustained said motion, and struck out said defenses, to which action of the court defendants duly excepted. At the same term, the cause being reached in regular order, judgment was rendered for plaintiff. Within four days defendants filed their motion for a new trial, alleging, among other things, that by the construction placed upon the charter by the court they were deprived of their property without due process of law, in violation of section 30, art. 2, of the...

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35 practice notes
  • Deitz v. Deitz, No. 37999.
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1943
    ...518, 4 L. Ed. 629; Ex parte Nelson, 251 Mo. 63, 157 S.W. 794; In re Clark, 208 Mo. 121, 106 S.W. 990; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043. (3) Mental capacity is established in so far as the deed is concerned if the grantor (plaintiff) had "sufficient mental cap......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...Wade, 254 U.S. 64; Norwood v. Baker, 172 U.S. 269; Embree v. Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey, 301 Mo. 1. (a) Section 2 of......
  • Crabtree v. Aetna Life Ins. Co., No. 34871.
    • United States
    • United States State Supreme Court of Missouri
    • December 17, 1937
    ...and Federal Constitutions. St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 211, 211 S.W. 671; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384, 68 S.W. 1043; Ex parte Nelson, 251 Mo. 106, 157 S.W. 794; Scott v. McNeal, 154 U.S. 34, 38 L. Ed. 896; Pennoyer v. Neff, 95 U.S. 733, 24 L. Ed. 565. (4) The ......
  • Platte City Special Road District v. Couch, No. 26682.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1928
    ...in due course," because tax bills are not negotiable instruments. [Richter v. Merrill, 84 Mo. App. 150; Barber Asphalt Co. v. Ridge, 169 Mo. 376, 383, 68 S.W. 1043; 2 Page & Jones, Taxation by Assessment, sec. 1133, p. From the facts and legal conclusions above set out we are well ......
  • Request a trial to view additional results
35 cases
  • Deitz v. Deitz, No. 37999.
    • United States
    • United States State Supreme Court of Missouri
    • June 7, 1943
    ...518, 4 L. Ed. 629; Ex parte Nelson, 251 Mo. 63, 157 S.W. 794; In re Clark, 208 Mo. 121, 106 S.W. 990; Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043. (3) Mental capacity is established in so far as the deed is concerned if the grantor (plaintiff) had "sufficient mental cap......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...Wade, 254 U.S. 64; Norwood v. Baker, 172 U.S. 269; Embree v. Road District, 240 U.S. 242; Jones v. Yore, 142 Mo. 38; Asphalt Co. v. Ridge, 169 Mo. 376; St. Louis v. Railways, 211 S.W. 671; State ex inf. v. Colbert, 273 Mo. 198; State ex rel. Inv. Co. v. McKelvey, 301 Mo. 1. (a) Section 2 of......
  • Crabtree v. Aetna Life Ins. Co., No. 34871.
    • United States
    • United States State Supreme Court of Missouri
    • December 17, 1937
    ...and Federal Constitutions. St. Louis v. Mo. Pac. Ry. Co., 278 Mo. 211, 211 S.W. 671; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 384, 68 S.W. 1043; Ex parte Nelson, 251 Mo. 106, 157 S.W. 794; Scott v. McNeal, 154 U.S. 34, 38 L. Ed. 896; Pennoyer v. Neff, 95 U.S. 733, 24 L. Ed. 565. (4) The ......
  • Platte City Special Road District v. Couch, No. 26682.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1928
    ...in due course," because tax bills are not negotiable instruments. [Richter v. Merrill, 84 Mo. App. 150; Barber Asphalt Co. v. Ridge, 169 Mo. 376, 383, 68 S.W. 1043; 2 Page & Jones, Taxation by Assessment, sec. 1133, p. From the facts and legal conclusions above set out we are well ......
  • Request a trial to view additional results

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