Barber Asphalt Paving Company v. French

• Decision Date: 13 November 1900
• Parties: BARBER ASPHALT PAVING COMPANY v. FRENCH et al., Appellants
• Court: Missouri Supreme Court

58 S.W. 934

158 Mo. 534

BARBER ASPHALT PAVING COMPANY v. FRENCH et al., Appellants

Supreme Court of Missouri

November 13, 1900

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Ess & Georgen and Gage, Ladd & Small for appellants.

Scarritt Griffith & Jones for respondent.

GANTT C. J. Burgess, J., absent.

OPINION

In Banc

GANTT C. J.

This suit was instituted in the circuit court of Jackson county, returnable to the October term (1899) thereof, for the purpose of enforcing the lien of a taxbill issued by Kansas City in part payment of the cost of paving Forest avenue from Independence avenue to Twelfth street with an asphalt pavement. The petition is in the usual form.

The defense relied upon by the defendants, although stated in several different forms, may be resolved into two contentions: First, that the requirement of the ordinance and contract providing for the work in respect to the guarantee thereof for five years is ultra vires on the part of the city, and void; and, second, that the method of apportioning and charging the cost of the pavement violates the limitation of the Federal Constitution that no State shall deprive any person of his property without due process of law.

The work done consisted of paving with asphaltum the roadway of Forest avenue in the said city, thirty-six feet in width, from Independence avenue to Twelfth street, a distance of one-half of a mile. Forest avenue is one of the oldest and best improved residence streets in Kansas City, and all of the lots abutting thereon front the street and extend back therefrom uniformly to the depth of an ordinary city lot, to an alley. The lots are all improved and used for residence purposes, and all of the lots are substantially on the grade of the street as improved, and are similarly situated with respect to the asphalt pavement. The structure of the pavement along its entire extent is uniform in character and quality. There is no showing that there is any difference in the value of any of the lots abutting upon the improvement. The evidence of four witnesses was taken, each of whom testified that each and every lot fronting on that part of the street improved was specially benefited to an amount exceeding the cost of the pavement, and that each of the several lots abutting upon the improvement shared the total benefit sustained by all such lots in the proportion of the frontage of each lot thereon to the total frontage on the improvement of all such lots.

This paving procedure was inaugurated conformably to the requirements of the Kansas City charter, by the adoption of a resolution by the common council of the city, declaring the work of paving the street to a stated extent, and with a pavement of a defined character, to be necessary, which resolution was first recommended by the board of public works of the city. This resolution was thereupon published for ten days in the newspaper doing the city printing. Thereafter, the resident owners of the city owning a majority of front feet of lands belonging to such residents and fronting on that part of the street to be improved, had the right, within thirty days after the first day of the publication of the resolution, to file a remonstrance with the city clerk against the proposed improvement, and thereby to divest the common council of the power to make the improvement; and such property owners had the right, by filing within the same period a petition so to do, to have such street improved with a different kind of material or in a different manner from that specified in such resolution. In this proceeding neither such a remonstrance nor petition was filed, and the common council, upon the recommendation of the board of public works, enacted an ordinance numbered 5891, requiring the construction of the pavement. The charter requires that a contract for such work shall be let to the lowest and best bidder. Thereupon, bids for the work were duly advertised for, and the plaintiff being the lowest and best bidder therefor, a contract was, on the thirty-first day of July, 1894, entered into between Kansas City and the plaintiff for the construction of said pavement.

The contract expressly provides that the work shall be paid for by the issuance of special tax-bills, according to the provisions of the Kansas City charter, and that the city shall not in any event be liable for or on account of the work. The cost of the pavement was apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is, that the total cost of the work shall be apportioned and charged against the lands abutting thereon according to the frontage of the several lots or tracts of lands abutting upon the improvement. The charge against each tract of land is evidenced by a tax-bill. The tax-bill representing the assessment against each lot is, by the charter, made a lien upon the tract of land against which it is issued, and is prima facie evidence of the validity of the charge represented by it. Such lien can be enforced only by suit in a court of competent jurisdiction against the owners of the land charged. No personal judgment is authorized to be rendered against the owner of the land. The right is expressly conferred on the owner of reducing the amount of the recovery by pleading and proving any mistake or error in the amount of the bill, or that the work was not done in a good and workmanlike manner.

The judgment was for the plaintiff for the amount due on the bill and for the enforcement of his lien, from which defendants, having unsuccessfully moved for a new trial and in arrest of judgment, have appealed.

Prior to the decision of the Supreme Court in Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187, the method adopted in the charter and ordinance of Kansas City of charging the cost of paving Forest avenue against the adjoining lots according to their frontage had been repeatedly authorized by the Legislature of Missouri and such laws had received the sanction of this court in many decisions. St. Louis v. Allen, 53 Mo. 44; St. Joseph v. Anthony, 30 Mo. 537; Neenan v. Smith, 50 Mo. 525; Kiley v. Cranor, 51 Mo. 541; Rutherford v. Hamilton, 97 Mo. 543, 11 S.W. 249; Moberly v. Hogan, 131 Mo. 19, 32 S.W. 1014; Farrar v. St. Louis, 80 Mo. 379.

In the last mentioned case Judge Norton for the court said, "The liability of lots fronting on a street, the paving of which is authorized to be charged with the cost of the work according to their frontage, having been thus so repeatedly asserted, the question is no longer an open one in this State, and we are relieved from the necessity of examining authorities cited by counsel for plaintiff condemning what is familiarly known as the 'front foot rule.'"

Learned counsel for defendant concede such was the state of the decided law of this State and that the portion of the Kansas City charter known as the ninth article of the charter which authorizes the cost of a pavement to be assessed against the lots fronting on the improvement according to their respective frontage was framed after this court had fully considered and construed similar laws and sustained them against the charge of unconstitutionality and the assessment now challenged was made under the construction given by this court.

They say: "The question we present is whether under the decision in Norwood v. Baker, 172 U.S. 269, 43 L.Ed. 443, 19 S.Ct. 187, the provision of the Kansas City charter under which the tax-bill sued on was issued, is in violation of the constitution of the United States and therefore null and void. We do not and can not ask this court to reconsider or recast any of its former decisions on this subject. We simply present this controlling decision of the Supreme Court of the United States and ask that it be applied in this case."

If the facts of this case bring it within the case in judgment in Norwood v. Baker, this court is bound to follow that decision and will do so whatever views we may hold to the contrary.

In applying the principle of stare decisis and controlling authority we will be safe in following that doctrine as announced by the Supreme Court of the United States whose judgment on the question at bar will be final. In Cohens v. The State of Virginia, 19 U.S. 264, 6 Wheaton (U.S.) 264, 5 L.Ed. 257, Chief Justice Marshall said:

"The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court, in the case of Marbury v. Madison.

"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason for this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Further on he says, in reference to language used in Marbury v. Madison, "Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle," and he concludes this point with the announcement that "the general expressions in the case of Marbury v. Madison must be understood with the limitations which are given them in this opinion."

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