Barber Asphalt Pav. Co. v. Ridge

• Decision Date: 27 May 1902
• Citation: 169 Mo. 376,68 S.W. 1043
• Court: Missouri Supreme Court
• Parties: BARBER 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 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 constitution of Missouri, and section 1, art. 14, of the amendments to the constitution of the United States, and because said charter so construed deprives them of that right and justice and the administration thereof guarantied by section 10, art. 2, of the constitution of Missouri. The motion being overruled, defendants appealed to this court.

James G. Smart, for appellants. Scarritt, Griffith & Jones, for respondent.

GANTT, J. (after stating the facts).

The circuit court struck out the defendants' special pleas "because defendants did not plead and show therein that they had filed with the board of public works, within sixty days after the date of the issue of the said tax bill, a written statement of `each or all or any objections or facts stated in such answer,' and because the said pleas constituted no defense to the action." The answer, it will be noted, pleaded that the work was not done within 60 days after the contract therefor became binding and took effect, as required by the ordinance, but long after the expiration of said 60 days, to wit, 5 months. Under the decisions of this court and the courts of appeals of this state, this answer stated a complete defense unless the failure of defendants to file a statement of such failure to complete the work within the time specified in the contract negatived the right to make such a defense. Neill v. Gates, 152 Mo. 585, 54 S. W. 460; Rose v. Trestrail, 62 Mo. App. 352; McQuiddy v. Brannock, 70 Mo. App. 535; Trust Co. v. James, 77 Mo. App. 616; City of Springfield v. Davis, 80 Mo. App. 574. We are thus brought to a construction of section 23, art. 9, of the charter of Kansas City of 1889, which provides: "Provided, however, that the owner or owners of any tract or parcel of real estate, or of any interest in such tract or parcel of real estate shall, within sixty days from date of issue of the tax bills, file with the board of public works a written statement of each and all objections which he or they may have to the validity of such tax bills, the doing of the work, the furnishing of the materials charged for, the sufficiency of the work or the materials therein used and any mistake or error in the amount thereof; and in any suit on any tax bill issued pursuant to this section, no objection or objections to it shall be pleaded or proved other than those that have been filed with the board of public works within the period aforesaid." Defendants assumed two positions in the circuit court:...