City of Independence v. Gates
| Decision Date | 31 May 1892 |
| Parties | City of Independence, Appellant, v. Gates, Executor |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
L. A Laughlin and J. G. Paxton for appellant.
(1) The city has the right to maintain this action. One who has a chose of action for collection has the right to maintain a suit in his own name. Webb v. Morgan, 14 Mo. 229; Beattie v. Lett, 28 Mo. 596; Simmons v Belt, 35 Mo. 461; Snider v. Express Co., 77 Mo 523. The city is the substantial plaintiff in actions on special tax bills. St. Louis v. Clemens, 36 Mo. 467. (2) The city had authority by law to let contracts for making street improvements as was done in this case. Power to a municipal corporation to make local improvements, though the expense be directed in the constituent act to be assessed upon the property benefited, gives the corporation, in the absence of provision, evincing a different legislative intent, the implied power to make general contracts therefor. 2 Dillon on Municipal Corporations [4 Ed.] sec. 810; Cumming v. Brooklyn, 11 Paige, 596; Mayer v. New York, 63 N.Y. 455; Lutes v. Briggs, 64 N.Y. 404; Galveston v. Heard, 54 Tex. 420. A municipal body, intrusted with the execution of a power, must be allowed some discretion in the choice of means, unless it appears that it was plainly intended to confine it to a prescribed mode. Page v. St. Louis, 20 Mo. 136; Railroad v. Marion Co., 36 Mo. 294. (3) Though ordinance 189 required property-owners on College street and the Lexington Road to grade, yet, on their refusal to comply, the city had authority to let a contract for grading only the Lexington Road. Kemper v. King, 11 Mo.App. 116; Eyerman v. Blakesly, 13 Mo.App. 407; Emery v. Gas Co., 28 Cal. 345; Moran v. Lindell, 52 Mo. 229; 1 Dillon on Municipal Corporations [4 Ed.] sec. 799. (4) The misdescription of defendant's property in the tax bill was not fatal, and could have been corrected by the court. A tax bill is not strictissimi juris, and acts for public improvements should be liberally construed. Where there has been an erroneous assessment for improvements, and the facts necessary to correct it appear in evidence, it should be corrected and judgment given accordingly. Neenan v. Smith, 60 Mo. 292; Bank v. Arnoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo. 418; Farrar v. St. Louis, 80 Mo. 379. (5) The defendant by procuring an injunction and stopping the work is precluded from setting up its non-completion as a defense. Parties must abide the consequences of their own acts. One who waits till an improvement is about completed before asserting his rights is guilty of such laches as amounts to an estoppel. Evansville v. Pfisteverer, 34 Ind. 45; LaFayette v. Fowler, 34 Ind. 146; Quinlan v. Myers, 20 Ohio St. 500; Ritchie v. Topeka, 38 Kan. 368; Byram v. Detroit, 50 Mich. 56.
Gates & Wallace for respondent.
(1) The only power or authority which the city of Independence had to require the work in controversy to be done was conferred, if at all, by section 4942 of Revised Statutes of 1879. This section, as it then stood (it has since been repealed; see Acts of 1889, page 42), was unconstitutional; because it requires each lot to bear the cost of the improvement opposite the same, instead of its proportion of the whole according to frontage, and because it also provides that a special tax shall be levied and collected from the owner or occupier of such property or lot. Constitution, 1875, art. 10, sec. 3; Cooley on Constitutional Limitations [5 Ed.] p. 630, and note, star p. 500; City to use of McGrath v. Clemens, 49 Mo. 552; Weber v. Schergens, 59 Mo. 392, 393; St. Louis v. Allen, 53 Mo. 44; Fowler v. St. Joseph, 37 Mo. 228; Higgins v. Ausmuss, 77 Mo. 351; Woodbridge v. Detroit, 8 Mich. 274. (2) The mode prescribed by the charter must be strictly pursued. Thompson v. Boonville, 61 Mo. 282. (3) If work is not substantially completed according to the ordinance and contract, there can be no recovery against the abutting property-owner. City to use v. Clemens, 49 Mo. 552; Bank v. Payne, 31 Mo.App. 512; Kiley v. Cranor, 51 Mo. 541; Meyer v. Wright, 19 Mo.App. 283; Cole v. Skrainka, 105 Mo. 303; Fruin-Bambrick Co. v. Geist, 37 Mo.App. 512. (4) A contract cannot vary the terms of the ordinance. Galbreath v. Newton, 30 Mo.App. 381. (5) A street to be improved cannot be divided into sections, and done under different contracts. Eyerman v. Hardy, 8 Mo.App. 311. (6) The city of Independence had no authority under its charter to improve its streets by contracts. It must either have the property-owner do it, or do it itself. Thompson v. Boonville, 61 Mo. 282; Mathews v. Alexander, 68 Mo. 115; Stewart v. Clinton, 79 Mo. 610. (7) The plaintiff, under its contract with Messrs. Ash & Gentry, was not liable to them on account of said work. It had no interest whatever in said tax bills, and, therefore, no right to maintain any suit upon them.
This is an action to foreclose the lien of a special tax bill on real estate of plaintiff's testator. The record shows that the city of Independence is a city of the fourth class, incorporated under the general laws of the state. An ordinance of the city, approved May 24, 1886, provided that "the board of aldermen, whenever they deem it necessary or advisable to construct or grade any street, lane, avenue or alley within the corporate limits of the city of Independence, they shall by ordinance, designate the particular location, length, breadth and grade of such street, and kind of material to be used in its construction and the manner in which it is to be made, and shall require each owner or occupant of any property, lot or lots fronting on said street, lane, avenue or alley upon which such work is to be done, to construct his proportional part of such work within thirty days after the taking effect of such ordinance."
On the thirteenth day of July, 1887, the city passed two ordinances, numbered 188 and 189. The former provided that a grade be established on College street and Lexington Road from Liberty street east to the eastern limits of said city in accordance with the profile as submitted by the city engineers; and the latter required the owners and occupiers of the property on College street between Liberty and Noland streets, and on Lexington Road between Noland street and the eastern city limits to grade the same to the established grade in front of their respective lots within fifteen days after the approval of the ordinance, and that, in case of neglect or refusal of any owner or occupier of property to do the work within the time required, the board of aldermen should cause the same to be done at the owner's or occupier's expense, and levy a special tax and collect the same by a special tax bill which should be a lien on the property.
On the first day of August, 1887, the city passed a general ordinance, number 195, authorizing the improvement of streets and repealing the ordinance approved May 24, 1886. By this ordinance it is provided that when the board of aldermen deem it necessary or expedient to grade any street they shall designate by ordinance the street or portion of the same to be improved, and shall specify therein the improvement to be made, whether by grading, paving, etc., and material, if any, to be used in the improvement, and shall by ordinance require property-owners to make the improvements in the manner and with the material specified in said ordinance, and to complete the same within the time required therein, not less than fifteen nor more than thirty days after the passage of the ordinance requiring the improvement to be made.
And then follow provisions for the work being done by the city if the property-owners fail or refuse to do it. On the ninth day of August, 1887, the city entered into a contract with Ash & Gentry, which recites that said Ash & Gentry are the lowest and best bidders for doing the work provided for by ordinance number 189, and that they covenanted and agreed to do the work mentioned in said ordinance in a substantial and workmanlike manner in obedience to the directions of the city engineer.
College street and Lexington Road constitute but one highway. Lexington Road is a continuation of College street from Noland street to the eastern limits of the city. The portion of College street specified in ordinance number 189 extends west from Noland street across Main to Liberty street. The engineer certified to the city council that Ash & Gentry had completed the work according to the contract, but the report of the engineer shows that they had done no work from Liberty street to Noland street, and that the work done by them was on Lexington Road alone from Noland street to the eastern limits of the city, and by an ordinance approved January 2, 1889, the total cost of the work was apportioned among the owners of the property abutting on Lexington Road, and among these owners was plaintiff's testator, whose land was taxed at $ 441.58 and a special tax bill issued therefor, which recited that the board of aldermen of the city had caused the work provided for by said ordinances numbers 189 and 195 to be done, and which was completed, and this suit was brought to foreclose the lien on the land supposed to have been created by that tax bill.
It also appears that a few of the owners of lots abutting on...
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