Barber Asphalt Pav. Co. v. City of St. Joseph.

• Decision Date: 01 July 1904
• Citation: 82 S.W. 64,183 Mo. 451
• Parties: BARBER ASPHALT PAV. CO. v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

82 S.W. 64

183 Mo. 451

BARBER ASPHALT PAV. CO. v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 1.

July 1, 1904.

MUNICIPAL CORPORATIONS—STREET IMPROVEMENTS —LIABILITY—STATUTES—CONSTITUTIONAL LAW — JUDGMENT — INTEREST — APPEAL AND ERROR.

1. Rev. St. 1899, § 5682, providing that property owned by a city shall be subject to assessments for street improvements, and that in case of default in payment by the city, and suit to collect, judgment shall be the same as ordinary judgments for the recovery of money on contract, authorizes a general judgment against a city on special tax bills for the city's proportionate part of improving a street, abutting on which it has property.

2. In an action against a city predicated on Rev. St. 1899, § 5682, authorizing a general judgment against a city for its proportionate part of improvements of streets on which it owns abutting property, where there is no evidence as to the income and revenue of the city, it is in no position to assert that the section on which the action is based is repugnant to Const. art. 10, § 12, providing that no city shall be allowed to become indebted to an amount exceeding in any year the income and revenue provided for such year, without the assent of the voters thereof.

3. Rev. St. 1899, § 5682, authorizing a general judgment against a city for its proportionate part of improvements of streets abutting on which it owns property, is not repugnant to Const. art. 10, § 6, exempting the property of municipal corporations from taxation.

4. Rev. St. 1899, § 5682, authorizing a general judgment against a city for its proportionate part of improvements of streets abutting on which it owns property, is not repugnant to Const. art. 10, § 10, forbidding the General Assembly to impose taxes on cities for county, city, town, or other municipal purposes.

5. Rev. St. 1899, § 5682, authorizes a general judgment against a city for its share of improvements of streets on which it owns abutting property. Section 5557 forbids the council to appropriate money in excess of the revenue of that fiscal year actually collected and unappropriated, and provides that neither the council, nor any city officer, shall have authority to contract so as to burden the city by any liability to pay money until a definite amount of money shall first have been appropriated for any pecuniary liability of the city under the contract, and that the amount of the appropriation shall be the maximum limit of the city's liability thereunder. Held, that a contention in an action, predicated on section 5682, for a city's proportionate part of street improvements, that as no definite amount of money was first appropriated for the liquidation of the cost of the improvement, prior to the letting of the contract, the tax bills sued on were void, is untenable, since the city's liability does not arise out of contract, but because its property has been benefited.

6. In an action against a city for its proportionate part of the cost of street improvements, predicated on Rev. St. 1899, § 5682, authorizing a general judgment in such cases, the judgment, under the direct provisions of section 5664, is properly made to bear interest at the rate of 10 per cent. per annum.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by the Barber Asphalt Paving Company against the city of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed.

James M. Wilson and G. L. Zwick, for appellant. Scarritt, Griffith & Jones, for respondent.

BRACE, P. J.

This is an appeal by the defendant from a general judgment of the Buchanan circuit court in favor of the plaintiff against the city for the sum of $1,631.70, in an action on five special tax bills issued under the provisions of section 5661 et seq. of article 3, c. 91, Rev. St. 1899, governing cities of the second class, to which the defendant belongs, for the proportionate amount of the cost of constructing the curbing, guttering, and roadway of Third street from the north line of Jule to the south line of Franklin street, in said city, charged against five lots, owned in fee simple absolute by the city, fronting on said street and improvement, and used for the purposes of a city workhouse. There is no dispute about the facts. The judgment was rendered in pursuance of the following provisions of section 5682 of said statute: "When the city owns in fee simple absolute any lot or parcel of land liable to be charged for work by special tax bill, and in any case of improvement alongside of a public square, or other place held for public use other than a street, avenue, alley or highway, the city shall out of the general revenue of the city, pay its proportionate share of the cost of the work mentioned in section 5661, a tax bill against the city to be issued, in which the city may be sued in default of payment; but no property held for public use shall be sold, and the judgment shall be the same as ordinary judgments for the recovery of money on contract." The objections to the judgment will be considered in the order presented by counsel for appellant:

1. It is contended that the demurrer to the evidence ought to have been sustained because the petition counted upon special tax bills which charged the proportionate cost of the improvement upon the lots in question, and in such an action a general judgment can not be rendered, and in support of this contention the following cases are cited; Neenan v. Smith, 50 Mo. 525; City of St. Louis v. Allen, 53 Mo. 44; Kansas City Grading Co. v. Holden, 107 Mo. 311, 17 S. W. 798; City of Clinton ex rel. Thornton v. Henry County, 115 Mo. 569, 22 S. W. 494, 37 Am. St. Rep. 415; City of Pleasant Hill v. Dasher, 120 Mo. 679, 25 S. W. 566. In all these cases, except City of Clinton v. Henry County, 115 Mo. 569, 22 S. W. 494, 37 Am. St. Rep. 415, the suits were against private property owners. In that case the suit was against the county on special tax bills against the Courthouse Square. That case was well considered, and, reviewing the precedent cases, it was said per Black, P. J., speaking for the court: "It was held in the case of St. Louis, to Use, v. Clemens, 36 Mo. 468, under a law making tax bills a lien on the property assessed, and providing that the contractor might collect the tax bills by `ordinary process of law,' that the proceeding was one in personam, and that the contractor was entitled to a general judgment, to be enforced by a general execution. But that case was overruled by the subsequent cases of Neenan v. Smith, 50 Mo. 526, and St. Louis, to Use, v. Allen, 53 Mo. 44. These cases hold that local assessments can be upheld alone on the ground of compensation in benefits to the particular property assessed, and in view of which it was held that the words `ordinary process of law' meant such process as was adapted to the enforcement of the lien. The case last cited goes much further, and holds, and holds distinctly, that a law attempting to authorize a general judgment over against the property owner on a special tax bill would be unconstitutional and void. Since the ruling made in those cases, it has been repeatedly held that the judgment must be, and can only be, one enforcing the lien against the particular property. Such is the settled law of this state. Carlin v. Cavender, 56 Mo. 286; St. Louis, to Use, v....