City of Grant City To Use of Joseph O'Neil v. Salmon

• Decision Date: 08 November 1926
• Citation: 288 S.W. 88,221 Mo.App. 853
• Parties: CITY OF GRANT CITY TO USE OF JOSEPH O'NEIL, RESPONDENT, v. ELSWORTH W. SALMON ET AL., APPELLANTS. [*]
• Court: Kansas Court of Appeals

288 S.W. 88

221 Mo.App. 853

CITY OF GRANT CITY TO USE OF JOSEPH O'NEIL, RESPONDENT, v. ELSWORTH W. SALMON ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri, Kansas City

November 8, 1926

Appeal from Circuit Court of Gentry County.--Hon. John M. Dawson Judge.

Judgment affirmed.

Dubois & Miller, J. W. McKnight and Clarence S. Palmer for respondent.

O. B Hudson and Fyke, Hume & Hall for appellants.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to enforce the lien of a special tax bill issued by Grant City, Worth county, Missouri, a city of the fourth class, on July 7, 1921, to Joseph O'Neil, for the construction of a district sewer, under the provisions of ordinance No. 297, of said city.

The petition alleges the tax bill in question was issued against land owned by defendant Elsworth W. Salmon, under the name of Solmon Worth, in the sum of $ 87.43. Sewer district No. 1 was established by ordinance No. 296 and the property embraced in said district included about two-thirds of the city's entire area. The suit was instituted in the circuit court of Worth county and on change of venue was taken to Gentry county, where it was tried to the court, resulting in a judgment for plaintiff. Motions for a new trial and in arrest were overruled and defendant has appealed.

The petition states that Elsworth W. Salmon and Saretta Salmon are husband and wife and own the property involved; that Grant City is a municipal corporation, organized and existing as a city of the fourth class, under and by virtue of the laws of the State of Missouri; that on July 7, 1921, the said city duly made out and issued to plaintiff Joseph O'Neil, contractor, a certain tax bill numbered 279, in part payment of the costs of constructing a district sewer in district No. 1 in said city; that said work was done in accordance with the provisions of ordinance 297 of said city, entitled "An ordinance providing for the construction of a district sewer and sewage disposal works in sewer district No. 1 in the City of Grant City, Worth county, Missouri; and providing for the method of paying for the same," approved July 9, 1920; that after the work provided for had been done in accordance with the contract, the cost thereof was computed and apportioned against the lots or pieces of ground, exclusive of improvements in said sewer district, in proportion to the area of the whole district, exclusive of public highways; and said computation and apportionment was reported to the board of aldermen of said city, and the respective amounts of said apportionment were levied and assessed as a special tax against each lot or piece of ground in said district, in the name of the respective owner thereof, under ordinance No. 298, entitled "An ordinance accepting the work of constructing district sewers in sewer district No. 1, and levying a special assessment to pay the cost thereof, and providing for the issue of special tax bills therefor. This ordinance was approved July 6, 1921, and said special tax bill issued against land owned by the abovenamed defendants in the sum of $ 87.43.

The petition sets out the said special tax bill, which we need not do here. The certificate is numbered 279 and is signed by the mayor of said city and attested by the clerk under seal. The said real estate is described by metes and bounds in the petition, and the petition recites that said tax bill with interest is due and unpaid and that plaintiff is the legal owner thereof. Judgment is sought in the sum of $ 87.43 with interest at the rate of eight per cent from August 6, 1921 to January 7, 1922, and at the rate of fifteen per cent from January 7, 1922.

The answer admits that Elsworth W. Salmon and Saretta Salmon are husband and wife, and under subdivisions 2 to 10 inclusive, specific denials are made of the allegations in the petition, but which may be considered jointly as a general denial. Further answering, defendants aver that if any sewer was constructed in said district, the same was a public sewer in law and in fact and not a district sewer, and for the construction of said sewer no special tax bill can be issued against defendants' property in payment therefor; that said tax bill is null and void for the reason that Elsworth W. Salmon, the owner of the property at the time the same was issued, was not named in said tax bill as owner, as required by law; admits that Elsworth W. Salmon at all times mentioned in the petition was the owner of the land mentioned therein, but that the defendant Saretta Salmon was not the owner thereof and had no interest therein, and is therefore an unnecessary party to this suit.

The reply is a general denial.

The tax bill was introduced in evidence and the trial court ruled that Solmon Worth might be read Worth Salmon, but that, although it was alleged in the amended petition and proved that Elsworth W. Salmon was commonly known as "Worth" Salmon, the name was not given with sufficient definiteness to make the special tax bill prima-facie evidence. Under this ruling, plaintiff put in evidence ordinance No. 296, establishing the sewer district, ordinance No. 297, providing for the construction of the sewer and sewage disposal works and directing the advertising for bids; the said last-named ordinance referring to the plans and specifications on file showing the location and details of the work to be done, and which were made a part of the evidence by their introduction; as was also the notice to contractors for the construction of sewers in district No. 1. There were also introduced in evidence an estimate of cost signed by R. P. Pringle the city engineer and the record of the board of aldermen showing the award of the contract to Joseph O'Neil, relator herein.

The testimony shows that the board of aldermen consisted of four members and on the vote on the motion to award the contract, two members voted for and two against and that the mayor voted for the motion. The contract for the work also was introduced in evidence. Plaintiff also offered in evidence ordinance No. 298, accepting the work and levying the assessment to pay the cost thereof; and as a part of said ordinance was the report signed by the city engineer of the computation of cost and the apportionment against the tract of land in said sewer district.

It was developed by cross-examination of plaintiff's witness, Albert P. Learned, that the estimate of costs was not actually prepared by Pringle, the city engineer, but was made by witness Learned in the office of Black & Veatch, engineers of Kansas City, Mo., who had been employed by the board of aldermen of Grant City to prepare plans and specifications for the work, and that this estimate was signed by said Pringle. After the evidence above referred to was introduced, plaintiff offered and the court admitted in evidence a copy of the tax bill. As we analyze defendants' answer, it includes as a chief defense the fact that the contract was awarded by the deciding vote of the mayor, there being an equal division of the four votes of the aldermen. It is also urged as a defense that the sewer was a public and not a district sewer. It was alleged in the answer that the plans and specifications, although a part of ordinance No. 297, were not sufficiently definite to indicate the work to be done and that the sewer and disposal works should have been constructed under separate contracts. It was also alleged that the final estimate of costs, although signed by the city engineer, was actually made up by another engineer who had been employed by the city.

Defendants raise the point that the court erred in depriving them of the right of a trial by jury. It appears from the record that a jury had been empaneled but upon objections of plaintiff,...