City of Joplin v. Hollingshead

• Decision Date: 04 March 1907
• Citation: 100 S.W. 506,123 Mo. App. 602
• Court: Missouri Court of Appeals
• Parties: CITY OF JOPLIN ex rel. CARTHAGE DIMENSION & FLAG STONE CO. v. HOLLINGSHEAD.

100 S.W. 506

123 Mo. App. 602

CITY OF JOPLIN ex rel. CARTHAGE DIMENSION & FLAG STONE CO. v. HOLLINGSHEAD.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

1. MUNICIPAL CORPORATIONS—SPECIAL TAX BILLS—ACTIONS — PETITION — SUFFICIENCY.

A petition in an action on a tax bill issued by a city of the third class for a municipal improvement, which alleges that on a specified date the city issued the tax bill to a person named, who for a valuable consideration assigned the same to another, followed by a copy of the tax bill and the assignment, and which states that defendant is the owner of the lot against which the bill was issued, is sufficient under Rev. St. 1899, § 5858 [Ann. St. 1906, p. 2962], making special tax bills prima facie evidence of their validity.

2. SAME — CONSTRUCTION OF SEWER — ORDINANCE—SUFFICIENCY.

A municipal ordinance for the construction of a sewer, which provides that it shall be constructed of 570 lineal feet of 8-inch vitrified clay pipe, 48 Y junctions laid 25 feet apart, one manhole, one automatic flush tank of a specified capacity, with necessary appurtenances, is sufficient within Rev. St. 1899, § 5848 [Ann. St. 1906, p. 2956], requiring that sewers shall be of such dimensions and materials as may be prescribed by ordinance, as against the objection that it fails to specify the dimensions and materials of the manhole, flush tank, and appurtenances.

3. SAME—CONSTRUCTION OF SIDEWALK—ORDINANCES—PUBLICATION.

Under Rev. St. 1899, § 5860 [Ann. St. 1906, p. 2967, § 5859], providing that no publication of a resolution providing for the construction of a sidewalk shall be necessary, but, on the petition of a specified number of citizens, the council may by ordinance contract for the construction thereof, including the grading, the passage and publication of a resolution for the building of a sidewalk, including the grading therefor, is unnecessary.

4. SAME—SPECIAL ASSESSMENT—LEVY.

Under Rev. St. 1899, § 5858 [Ann. St. 1906, p. 2962], providing that the construction of a sidewalk, including the grading therefor, shall be paid for only by special assessment against abutting property, it is not necessary that the council providing for the construction of a sidewalk shall declare by resolution that the general fund of the city is insufficient to pay for the improvement before a special assessment may be levied.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by the city of Joplin, on the relation of the Carthage Dimension & Flag Stone Company, against Etta J. Hollingshead. From a judgment for plaintiff, defendant appeals. Affirmed.

Cole, Burnett & Williams and S. H. Claycomb, for appellant. Pearson & Butts, for respondent.

JOHNSON, J.

Action on two special tax bills issued by a city of the third class. The subject of the first count in the petition is a sewer bill, and that of the second a bill for the construction of a sidewalk. Plaintiff recovered judgment on each count.

It is insisted by defendant that neither count contains the statement of a cause of action. In the first, after alleging the incorporation of the city of Joplin as a city of the third class, the petition states "that on the 11th day of March, 1899, the said city of Joplin, by its proper officers duly authorized so to do, issued to one E. J. Overly a certain special tax bill, and that said E. J. Overly thereafter, and before the bringing of this action, for a good and valuable consideration, duly assigned the said special tax bill to the said Carthage Dimension & Flag Stone Company, a copy of which tax bill, together with the indorsements thereon, is as follows." Then appears the contents of the tax bill and assignment thereof, after which it is alleged that defendant is the owner of the lot against which the bill was issued. The second count is identical in form with the first. The recitals of the tax bills thus pleaded show the performance of the conditions essential to their validity. The pleading is sufficient to state a cause of action. The statute under which the bills were issued contains the provision: "Such special tax bills shall in any action thereon be prima facie evidence of the regularity of the proceeding for such special assessments of the validity of the bill, of the doing of the work and furnishing of the materials charged for, and of the liability of the property to the charge stated in the bills." Section 5858, Rev. St. 1899 [Ann. St. 1906, p. 2962].

Defendant, noting the absence from the statute of any provision similar to that found in Revised Statutes of 1889, relating to cities of the second class (section 1407), which declares that "it shall be sufficient for the plaintiff to plead the making and issue of the tax bill sued on, giving date and contents thereof, and assignment thereof in case of assignment, filing the same, and allege that the party or parties made defendants own or claim to own the land charged," etc., argues that the provision under consideration, which deals only with the character of the tax bills as evidence, has no relation to the pleading of a cause of action founded on such tax bill, and therefore the statement in the petition of such cause of action must be governed by the general rules of pleading, which require the allegation of constitutive facts, and do not permit the pleader to compel his adversary to resort to the inspection of instruments filed...