Barber Asphalt Paving Co. v. Hayward
| Decision Date | 28 February 1913 |
| Parties | BARBER ASPHALT PAVING COMPANY et al. v. FRANK G. HAYWARD et al., Appellants |
| Court | Missouri Supreme Court |
Appeal fro Jackson Circuit Court. -- Hon. Hermann Brumbach, Judge.
Affirmed.
Francis M. Hayward for appellants.
(1) Kansas City had no power under its charter to issue any tax bill for any improvement except for such as was authorized by an ordinance of Kansas City and made under a contract let in pursuance thereof. Secs. 2, 3, 5 and 23, art. 9, Charter of 1889; Asphalt Pav. Co. v. Field, 134 Mo.App. 663; Dill. Munc. Corp. (5 Ed.), sec. 237. (2) Kansas City, by annexing Westport, assumed the liabilities of Westport, and was by statute given the power to issue Westport bills for work authorized by Westport. R.S. 1899, sec. 6399; R.S. 1909 sec. 9743; Paving Co. v. Field, 134 Mo.App. 663. (3) Westport, when it passed the ordinance and let the contract under which the improvement in question was made, being a city of the fourth class, was controlled by the general statutes governing such cities which provided for the issue either of one bill or three annual installments, such bills not to bear interest in excess of eight per cent per annum. R.S. 1899, secs. 5984 and 5987; R.S. 1909, secs. 9406 and 9408; Oster v. Jefferson City, 57 Mo.App. 485. (4) The bill in question not being in one bill or in three annual installments bearing interest at not exceeding eight per cent per annum, but in four installments and bearing interest at ten per cent per annum in case of default, is contrary both to the law governing cities of the fourth class and to the contract of Westport authorizing the work, and being in a proceeding in invitum such bill is void. Michael v Mather, 172 Ill. 394; Kiley v. Oppenheim, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Guinotte v. Egelhoff, 64 Mo.App. 356; Verdin v. St. Louis, 131 Mo. 26; Wolford v. St. Louis, 115 Mo. 139; Murnane v. St. Louis, 123 Mo. 479; Wheeler v. Poplar Bluff, 149 Mo. 36; Rove v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535. (5) If Kansas City had power to issue the kind of bill sued on, such bill is void because the improvement was not completed till after the time fixed by the ordinance for doing the work had expired. Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535; Neil v. Gates, 152 Mo. 585; Barber v. Ridge, 169 Mo. 376; Smith v. Westport, 105 Mo.App. 221; Spalding v. Forsee, 109 Mo.App. 675. (6) The decree was erroneous in any view of the law, because judgment was rendered bearing interest at a rate of interest in excess of six per cent per annum. Asphalt Pav. Co. v. Field, 134 Mo. 663; Roofing Co. v. Fair Assn., 231 Mo. 589.
Scarritt, Scarritt, Jones & Miller for respondents.
(1) The plaintiff substantially complied with the terms of its contract as embodied in the contract and specifications between it and the city of Westport, and the ordinance of Westport relating to the time of completing the improvement. Spalding v. Forsee, 109 Mo.App. 675; Independence to use v. Knepker, 134 Mo.App. 601; Becker v. Washington, 94 Mo. 375; Asphalt Pav. Co. v. Ullman, 137 Mo. 543; Litson v. Smith, 68 Mo.App. 397; Westport ex rel. v. Jackson, 69 Mo.App. 148; Strottman v. Railroad, 211 Mo. 227; State ex rel. v. Harter, 188 Mo. 516; Gist v. Construction Co., 224 Mo. 369; Whittemore v. Sills, 76 Mo.App. 248; Sparks v. Land Co., 99 Mo.App. 489; Hund v. Rackliffe, 192 Mo. 312; Jones v. Paul, 136 Mo.App. 524. (2) Kansas City had the power to accept the work and issue the tax bill in question to pay the contract price of the improvement. Sec. 9743, R.S. 1909; Art. 1, sec. 4, Kansas City Charter 1889; Page & Jones on Taxation by Assessment, sec. 245; Gilpin v. Ansonia, 68 Conn. 72; Manley v. Emlen, 46 Kas. 665; Eyerman v. Blakesley, 13 Mo.App. 407. (3) There is no merit in the defense that the judgment is erroneous because it was rendered at a rate of interest in excess of six per cent per annum. The judgment bears the same rate of interest as the tax bill, as provided in the Kansas City charter. Sec. 18, art. 9, Charter of 1889; Asphalt Pav. Co. v. Ullman, 137 Mo. 543; Buchan v. Broadwell, 88 Mo. 31.
Prior to December, 1897, Westport was a city of the fourth class. During that month, by proceedings unchallenged, its territory was taken into Kansas City and its corporate existence ceased, by virtue of the charter of Kansas City and the general statute. [R.S. 1909, sec. 9743; Charter of Kansas City of 1889, art. 1. sec. 4.] In September, 1897, by its ordinance, Westport required the paving of its street, known as Thirty-sixth street. Presently the Barber Asphalt Paving Company, as successful bidder, was awarded the contract and had begun performing it when said merger took place. Presently, in 1898, the work was completed and accepted by Kansas City and by an ordinance of the latter a special tax was levied and assessed against abutting lots -- one of them, the property of defendants. A tax bill issued to Paving Company was not paid and suit was brought thereon. From a judgment in its favor, defendants appeal.
The following propositions are maintained by appellants:
(a) The first proposition goes to the power of Kansas City, under its charter, to issue a tax bill for any improvements not authorized by an ordinance of Kansas City and let under a contract in pursuance of such ordinance. They affirm that cannot be validly done.
(b) Their next three propositions are interdependent, their sum being this: Kansas City should have issued a "Westport tax bill" for work authorized by a "Westport ordinance." This, under the general statutes governing cities of the fourth class providing for eight per cent interest and not one drawing a greater interest as (it is alleged) the bill in question does; and providing either for one bill or three annual instalments, and not one payable in four instalments, as the bill in question does. Therefore the bill is void.
(c) Their next is that the bill is void because the work was not completed in the time fixed by the ordinance.
(d) Their final proposition is that the judgment was erroneous because it bears interest in excess of six per cent.
Sufficient record to present those propositions understandingly will appear in connection with the consideration of each, stated in our own way.
I. Had Kansas City, after the merger, the power to issue a tax bill for paving authorized by an ordinance of Westport and let to a contractor prior to the merger?
In our opinion, yes. This, because:
In section 9743, Revised Statutes 1909, anent extending the limits of cities with over 100,000 inhabitants, it is provided, among other things, that if the extension includes the territory of any incorporated city (as happened in this case) then "the corporate existence of such incorporated city, town or village so included in such extension shall, ipso facto, cease, and all property and rights of every kind and nature belonging to and vested in such incorporated city, town or village, shall, by operation of law" (i. e., ipso jure) "at once pass to and vest in the city making such extension of its limits, and it shall be the duty of all officers and employees of such incorporated city, town or village having custody or control thereof, to surrender and deliver the same to such city so extending its limits; and such city shall also, by operation of law, become liable to pay all debts and liabilities of such incorporated city, town or village."
By the words, "ipso facto," the lawmaker must be held to mean: By the fact or act itself; by, or as the result of, the mere act or fact; by the mere fact; by the mere effect of an act or a fact. [Bl. L. Dict., tit. "ipso facto;" Web., same title.]
The General Assembly, being presumably composed of scholars, is entitled to the presumption that it used those learned words in a scholarly sense; ergo, the lawmaker must be held to mean that the corporate existence of the city or town, whose territory is taken in by the extension of another city's limits, ceases at once by the mere fact or act of the extension of such limits. By that coup de grace it, to all intents and purposes, is bereft of life and has left to it no power to be or do. If appellants' position then be correct, we have this anomalous and absurd situation: Kansas City can do nothing towards accepting the work in paving Thirty-sixth street or issuing tax bills, because unauthorized; Westport could do nothing after the act of extension, because it has no existence de facto or de jure. But if anything is to be done it must be done by one or the other. Ergo, nothing can be done at all in that behalf.
That specious syllogism recalls old Zeno's that one could not prove motion by reasoning. If a thing moves (he is said to have said) it must either move in the place where it is, or in the place where it is not. But it cannot move where it is, nor can it move where it is not. Therefore it cannot move.
Appellants' construction would be bound to result in distress and injury. But the law does not stand puzzle-headed and helpless before such practical difficulty. The inconvenience arising from such construction of the statute precludes adopting it provided any other course be open in reason. Argumentum ab inconvenienti est validum in lege. There is another allowable construction which courts are called on to make, to-wit, that of construing the word "rights," in the quoted part of section 9743, as broad enough in meaning to include "powers." In Barber Asphalt Paving Company v. Field, 134 Mo.App. 663, 111 S.W. 907, such construction was arrived at on the inherent reason of the thing and on precedent. In that case an amended tax bill, issued by Kansas City, was in suit. ...
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