Barber Asphalt Pav. Co. v. Kihlberg Karlsbad Bath Co.

• Decision Date: 19 April 1909
• Citation: 118 S.W. 519,136 Mo. App. 555
• Parties: BARBER ASPHALT PAVING CO. et al. v. KIHLBERG KARLSBAD BATH CO. et al.
• Court: Missouri Court of Appeals

118 S.W. 519

136 Mo. App. 555

BARBER ASPHALT PAVING CO. et al. v. KIHLBERG KARLSBAD BATH CO. et al.

Kansas City Court of Appeals. Missouri.

April 19, 1909.

MUNICIPAL CORPORATIONS (§ 567)—STREET IMPROVEMENTS—ASSESSMENT LIEN—SPECIAL TAX BILL—ACTION—PLEADING.

Rev. St. 1899, § 5986 (Ann. St. 1906, p. 3022), regulating cities of the fourth class, provides that special tax bills, and any action thereon, shall be prima facie evidence of the regularities of the proceedings for such special assessments, of the validity of the bill, of the doing of the work, and the liability of the property. Held, that under such section, construed in conjunction with the presumption that municipal authorities have proceeded according to law, a petition on a special tax bill, alleging that the duly authorized officers of the city had issued the bill to plaintiff, setting out its provisions, and that defendants are the owners of the land sought to be charged, was sufficient, without facts showing that the city had authority to pass the ordinance for the improvement in question.

Appeal from Circuit Court, Clay County; Francis H. Trimble, Judge.

Action by the Barber Asphalt Paving Company and another against Kihlberg Karlsbad Bath Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Craven & Moore, for appellants. Scarritt, Scarritt & Jones, for respondents.

JOHNSON, J.

This suit is for the enforcement of the lien of special tax bills issued by Excelsior Springs, a city of the fourth class, in payment of the cost of paving a public street. Defendants, the owners of the property against which the tax bills were issued, demurred to the petition on the grounds: First, that the petition fails to state a cause of action; and, second, that it does not show that the city "had any authority by law to pass its ordinance to pave the street therein mentioned, for the reason that said ordinance could only be passed after the proper publication of a resolution." The demurrer was overruled. Defendants declined to plead further, and, standing on the demurrer, brought the case here by appeal from the judgment rendered against them.

The petition is in three counts, but present purposes will be satisfied by a statement of the substance of one of them. It is alleged that an ordinance providing for the improvement was enacted and approved by the city; that pursuant thereto a contract was made by the city with plaintiff; that the work was completed in accordance with the terms of the ordinance and contract, and was accepted by the city; and that the assessment was levied, and the tax bill issued. There is an averment that "each and all of the requirements of the statutes and ordinance, in regard to the work and improvements and the tax bill herein referred to, were duly complied with." The tax bill is set out in hæc verba. It is conceded that the facts pleaded are sufficiently stated, but the objection urged against the petition is that it fails to state all of the facts constitutive of the cause of action. Defendants argue that it is just as essential that compliance with other statutory requirements relating to the levy of the assessment be shown in the petition as it is that the ordinance authorizing the improvement or the tax bill itself be pleaded; that each statutory step leading to the issuance of the tax bill is jurisdictional, and therefore is constitutive of a cause of action for the enforcement of the lien. Specific attention is directed to the omission from the petition of an allegation that a resolution was passed by the board of aldermen declaring the work necessary to be done, a step required by the provisions of the statute relating to cities of the fourth class. Section 5989, Rev. St. 1899 (Ann. St. 1906, p. 3024). The courts of this state have held in a number of cases that, in actions on special tax bills, the plaintiff is not required to plead compliance with the preliminary steps leading to the issuance of the tax bill. "It is sufficient for the plaintiff to allege in the first instance that the officers of the municipality duly authorized so to do have issued to him the special tax bill on which he sues, setting out its provisions, and stating...