City of Kansas v. Huling

• Decision Date: 31 October 1885
• Citation: 87 Mo. 203
• Parties: THE CITY OF KANSAS v. HULING et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 203

THE CITY OF KANSAS

v.HULING et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Alderson & Young for appellants.

The provisions of the city charter and ordinances are unconstitutional and invalid, in that they permit an assessment against property without notice to the owner. Jordan v. Hyatt, 3 Barb. 275, 282, 283; Darling v. Gunn, 50 Ill. 424, 428; Empire City Bank, In Re, 18 N. Y., 199, 215; George v. Midough, 62 Mo. 549, 551; Philadelphia v. Miller, 49 Pa. 440, 448, 449; Ford, In Re, 6 Lans. 92; New Jersey Turnpike Co. v. Hall, 2 Harrison, 337, 339; State v. Newark, 1 Dutch, 399, 411; Overing v. Foote, 65 N. Y. 263, 269; Ireland v. Rochester, 51 Barb. 414, 431; Brewster v. Newark, 3 Stockton, 114, 118; Stuart v. Palmer, 74 N. Y. 183, 187, et seq.; Hood v. Finch, 8 Wis. 381, 387; Boonville v. Ormond, 26 Mo. 193, 195, 196; Dickey v. Tennison, 27 Mo. 373, 376; Owners, etc., v. Mayor, etc., 15 Wend. 374, 376; Lowery v. Rainwater, 70 Mo. 152; Cooley on Taxation, 265, 266; State v. Fon du Lac, 42 Wis. 287, 298; Gulf Ry. v. Shepard, 9 Kas. 647, 654, 655; State v. Jersey City, 4 Zabr. 662, 666; State v. Jersey City, 5 Vroom, 31, 41; Eustace v. Jahns, 38 Cal. 3, 15, et seq.; Brown v. Denver, 7 Col. 305, 311, et seq.; Gatch v. Des Moines, 18 N. W. Rep. 310, 311, et seq.; People v. Tallman, 36 Barb. 222.

Wash Adams and R. H. Field for respondent.

The charter and ordinances in question are not unconstitutional as contended by appellants. Full opportunity to question the validity of the tax bill, after its issuance, as well as the sum charged, is left open to the property owner. The tax bill in suit thereon being only prima facie and not conclusive evidence, the proposition of appellants is palpably untenable. Hagar v. Reclamation District No. 108; 111 United States Report, 701; St. Louis v. Richeson, 76 Mo. 470; see respondent's Charter, Laws 1875, pp. 253, 254, sec. 6; Id. Article, sec. 4.

HENRY, C. J.

This case was submitted to the circuit court of Jackson county upon an agreed statement of facts, substantially as follows: Defendants owned a lot in the City of Kansas, and repairs were made upon the sidewalk in front of said lot by the city authorities, and this suit is to recover the amount of a special tax bill for the cost of said repairs.

The charter authorized the city to require the property holder to make such repairs, or to do it at his expense. Art. 8, sec. 6, Charter. By its ordinance, the city made it the duty of the city engineer to keep all paving, sidewalks, etc., in good repair, and provides that: “The city engineer may require the owners or occupants of property, liable to be charged with the cost of any repairing, in this section mentioned, to make any or all such repairs, as he may, from time to time, deem necessary, and may, in such case, notify every such owner or occupant to do the repairing within such period as he shall designate. Whenever such owner or occupant cannot be conveniently found, or shall fail or refuse to comply with such requirement, or it may be by him deemed best, such engineer may make such repairs or cause the same to be made, for and on account of the city, without any notice to the owner or occupant of the property chargeable therewith.”

The contention is that the ordinance is unconstitutional, in that it authorizes an assessment against the property of an individual, without notice to him, and numerous cases are cited in support of the proposition, some of them bearing upon the question, and rather favoring that view, others of them wholly inapplicable, as, for instance, the cases of Boonville v. Ormrod's Adm'r, 26 Mo. 195; Dickey v. Tennison, 27 Mo. 373, and Lowry v. Rainwater, 70 Mo. 152. The first two were condemnation proceedings by which it was sought to take private property for public use. The last case was one in which the city authorities of St. Louis seized and destroyed a gaming table without a judicial hearing, etc. Many of the other cases cited by appellants' counsel were condemnation proceedings, and have no analogy to this case, nor is the reasoning of the courts therein applicable in the argument of the question before us.

We have, in repeated decisions, held that it is the duty of incorporated cities to keep their streets and sidewalks in a condition reasonably safe for public use, and that, to one injured in consequence of a neglect of this duty, the city was liable in damages. This duty of the city is imperative, and if she is bound to wait until, after reasonable notice to the property abutting upon the sidewalk, he fails to make the repairs, before she can proceed to put the sidewalk in a safe condition for the use of the public, would it be a defence to the city that she had notified the owner to do the work, and that the time allowed him to do it had not expired? Has such a defence ever been made, or sustained, in such an action, or has any court ever instructed that that would exempt the city from liability to one injured within the time allowed the owner to make the repairs, after notice given? The property owner is not deprived of a hearing. He...