Barber Asphalt Paving Company v. Hayward

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Lamm
• Citation: 248 Mo. 280,154 S.W. 140
• Decision Date: 24 December 1912
• Parties: BARBER ASPHALT PAVING COMPANY et al. v. HAYWARD et al.

154 S.W. 140 248 Mo. 280 BARBER ASPHALT PAVING COMPANY et al.
v.
HAYWARD et al. Supreme Court of Missouri, Division No. 1. December 24, 1912. Rehearing and Transfer to Court in Banc Denied February 28, 1913.

1. MUNICIPAL CORPORATIONS (§ 36) — TAX BILL — AUTHORITY TO ISSUE.

Under Rev. St. 1909, § 9743, providing that, if the extension of the limits of cities with over 100,000 inhabitants includes the territory of any incorporated city, the corporate existence of such city included in the extension shall ipso facto cease, and all property and rights vested in such a corporated city shall, by operation of law, at once vest in the city extending its limits, a city which annexed the territory of another city which latter city had previously authorized construction of paving had power to issue tax bills for such paving, the words "ipso facto" meaning by the fact or act itself, or as the result of, the mere act or fact, by the mere fact, by the mere effect of an act or fact, and the word "rights" included "powers" (citing 7 Words and Phrases, p. 6220).

For other definitions, see Words and Phrases, vol. 4, p. 3767; vol. 8, p. 7790.]

2. STATUTES (§§ 174, 175) — CONSTRUCTION — MATTERS CONSIDERED — EFFECT.

It is permissible, in construing a statute, to argue from the convenience or inconvenience which a given construction will work.

3. MUNICIPAL CORPORATIONS (§ 522) — TAX BILLS — PAYMENT — INSTALLMENTS.

Under Rev. St. 1899, § 5987, providing that the cost of paving any street "may be paid in three annual payments," provided the owner "shall" within 30 days after letting the contract notify the city clerk that he desires to pay in that manner, in absence of such notice, owners cannot complain that the tax bill was made payable in four annual payments.

4. MUNICIPAL CORPORATIONS (§ 36) — SPECIAL ASSESSMENTS.

Since the town of Westport ipso facto ceased to exist upon its territory becoming a part of Kansas City after the annexation, a special assessment levy for street paving, authorized by the town before annexation, should be conducted according to the charter provisions of Kansas City in force when the levy was made.

5. CONSTITUTIONAL LAW (§ 106) — VESTED RIGHTS.

No vested right is destroyed by a change in the remedial procedure pending an action, if the proceeding is conducted under the changed law.

6. MUNICIPAL CORPORATIONS (§ 352) — PUBLIC IMPROVEMENTS — CONTRACTS — CONSTRUCTION.

The statute constituting the charter of a city should be read into a contract made by it for public improvements.

7. MUNICIPAL CORPORATIONS (§ 352) — PUBLIC IMPROVEMENTS — CONSTRUCTION OF CONTRACT.

Where an ordinance authorizing public improvements, as well as the contract therefor, calls for specifications, and the contract is confirmed by another ordinance, both the contract, specifications, and ordinances must be read together.

8. MUNICIPAL CORPORATIONS (§ 362) — PUBLIC IMPROVEMENTS — TIME OF COMPLETION.

Extension of the time for completing a public improvement beyond that fixed in the improvement ordinance is valid, if made before the expiration of the original time limited.

9. MUNICIPAL CORPORATIONS (§ 362) — PUBLIC IMPROVEMENTS — TIME OF COMPLETION — EXTENSION.

A municipality has power to extend the time for completion of a public improvement, where the time limited for completion was specified only in the contract, and not in the ordinance authorizing the improvement.

10. INTEREST (§ 22) — TAX BILLS — JUDGMENTS.

A judgment on a special tax bill bears the same rate of interest as the tax bill bears under the city charter, and not 6 per cent. interest, as provided by Rev. St. 1909, § 7181, providing for interest on judgments.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Action by the Barber Asphalt Paving Company and others against Frank G. Hayward and another, and from a judgment for plaintiffs defendants appeal. Affirmed.

The following are the cases cited for respondent, referred to by the court: Spalding v. Forsee, 109 Mo. App. 675, 83 S. W. 540; City of Independence, to Use, v. Knoepker, 134 Mo. App. 601, 114 S. W. 1129; Becker v. City of Washington, 94 Mo. 375, 7 S. W. 291; Barber Asphalt Pav. Co. v. Ullman, 137 Mo. 543,

[154 S.W. 141]

38 S. W. 458; Litson v. Smith, 68 Mo. App. 397; City of Westport ex rel. v. Jackson, 69 Mo. App. 148; Strottman v. Railway Co., 211 Mo. 227, 109 S. W. 769; State ex rel. v. Harter, 188 Mo. 516, 87 S. W. 941; Gist v. Construction Co., 224 Mo. 369, 123 S. W. 921; Whittemore v. Sills, 76 Mo. App. 248; Sparks v. Villa Rosa Land Co., 99 Mo. App. 489, 74 S. W. 120; Hund v. Rackliffe, 192 Mo. 312, 91 S. W. 500; Jones v. Paul, 136 Mo. App. 524, 118 S. W. 522.

Francis M. Hayward, of Kansas City, for appellants. Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondents.

LAMM, J.

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, § 9743; Kansas City Charter 1889, art. 1, § 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 the 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 8 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 installments, and not one payable in four installments, 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 6 per cent. Sufficient record to present those propositions understandingly will appear in connection with the consideration of each stated in our own way.

1. 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, R. S. 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 employés 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

154 S.W. 142

ab inconvenienti est validum in lege." There is another allowable...