City of Kirkwood ex rel. Baptiste v. Handlan
| Decision Date | 02 December 1920 |
| Citation | 225 S.W. 692,285 Mo. 92 |
| Parties | CITY OF KIRKWOOD ex rel. GEORGE BAPTISTE, Assignee of E. J. WELSCH, v. ALEXANDER H. HANDLAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. G. A. Wurdeman, Judge.
Affirmed.
H. A Loevy for appellants.
(1) The street improvement work for which the special tax bill sued on was issued was done on private property, therefore the tax bill is void. (2) The attempted statutory condemnation of appellant's 30 feet of ground is unconstitutional and therefore null and void, because: (a) Appellant was not made a party by name to the condemnation case. Wherefore he is not bound by same. (b) Section 9415 on which the city's condemnation proceedings intended to condemn the western 30 feet of appellant's lot for continuation of Dickson Street are based, is unconstitutional, being class legislation. (c) The method of notice provided for therein is not due process of law: It discriminates between residents of the city and other residents of the State, by providing for personal notice to the former by service by the city marshal and to the latter by publication as if they were non-residents of the State instead of citizens of the same State. (d) Publication to residents who cannot be found is not publication to non-residents and cannot be substituted. (e) It does not even describe his 30 feet of land nor even the entire lot which might have attracted his attention if he had ever seen the so-called newspaper. (3) There was no common law dedication thereof, because there was no intent by appellant to dedicate, there was merely use by the public of an undefined roadway, straggling within a sixty foot limit like any other country road without bonds, partly across the western end of his tract, and partly on his neighbors. That did not create a common-law dedication. Carpenter v. St Joseph, 263 Mo. 714. (a) Proof of intention by owner to wave his right is necessary. (b) A common-law dedication requires not only intent by owner but also acceptance by the city. Mere user does not establish a street. (c) If the right of way depends on user, the width of the way is measured by its character, for an easement cannot be broader than the user. (4) The semi-annual statement required by statute showing the city's general revenue and debts 1907-8-9 before special tax assessments can be levied, was not complied with. Hence the bill sued on is void. Sec. 9413, R S. 1909.
Frank J. Quinn and Geo. O. Durham for respondent.
(1) Appellant having failed to demur to the evidence or request a directed finding for defendant conceded that plaintiff had made a prima-facie case and cannot complain that the court did not of its own motion direct a finding for defendant. 38 Cyc. 1540; Dickey v. Porter, 203 Mo. 20. (2) Letting tax-bill in without objection and failing to demur to the evidence conceded ownership and assignment and in effect conceded respondent's ownership and right to maintain a suit for the tax-bill. Dickey v. Porter, 203 Mo. 1; Pratt v. Conway, 148 Mo. 299. (3) The evidence was sufficient to establish a common-law dedication and estoppel as against defendant, for: Appellant was claiming certain taxes alleged to have been illegally exacted of him and these taxes were not recoverable. Christy v. City, 20 Mo. 143; Roberts v. Latham, 134 Mo. 466; Pritchard v. Bank, 200 S.W. 666. And the return thereof by the City of Kirkwood was a valuable consideration which could be conditioned as the city saw fit. Under these conditions the city agreed to return the money in consideration of a dedication of Dickson Street. The money was paid and accepted. The terms of such payment and the condition with reference to the dedication was clearly brought home to appellant and he acquiesced therein, ordered his fence removed, had a new fence built on new line, and had property resurveyed and platted on new line. The whole constituted a dedication and estoppel to assert that the street was private property. Naylor v. Harrisonville, 207 Mo. 341.
OPINION
This is an action on a special tax bill for $ 254.69 and interest, issued by the officials of the City of Kirkwood, Missouri, which is a city of the fourth class, to pay, in part, for improvements made on a portion of Dickson Street. The improvements included the grading of the street, putting in curbing and guttering, and spreading and rolling macadam and gravel. The work was done by E. J. Welsch, to whom the tax bill in controversy was issued, but the action was instituted at the relation of George Baptiste, as the assignee of Welsch. The defendant resided in the City of St. Louis, but owned the lot in Kirkwood affected by the tax bill; a lot lying in Block, D, East Kirkwood, having a frontage of 127.65 feet on the north side of Main Street and a death along the east side of Dickson Street (which is its west boundary), back to Harris Street on the north, of 566 feet and 6 inches. The improvements were made in 1910, and the bill in suit was issued August 21, 1911.
One of the points raised against the judgment for plaintiff is that the tax bill was not put in evidence, nor the assignment of it by Welsch to Baptiste proved. Two judgments by default had been taken against the defendant and set aside over the protest of the plaintiff, which filed a motion to have vacated the order to set aside the second default judgment. The court overruled this motion on the ground that until a term ended a court could set aside orders or judgments it had entered during the term, and among others, default entries, if it was thought a hearing on the merits should be granted. In connection with a remark of the above purport, the court told the plaintiff's attorney to offer the tax bill, and thereupon the attorney said: "I now offer in evidence the tar bill, marked 'Plaintiff's Exhibit A';" and it was admitted upon proof of the signatures of the mayor and clerk of Kirkwood.
On the back of the bill was the following assignment:
No proof was made of the genuineness of the signature of Welsch to the assignment, but it was proved by E. W. Handlan, a son of the defendant, and who attended to his father's business when the father was away from St. Louis, that a collector for Baptiste had demanded payment of the bill and, that after looking into some correspondence, he (E. W. Handlan) refused to pay it for the reason that he found a letter written to his father by the city clerk of Kirkwood, under date of March 25, 1907, and a notation on the letter made by his father, which showed there was a dispute between the city and his father about whether his father owned thirty feet of the width of the improved street or had dedicated it to the city; further, that he (E. W. Handlan) afterward had a conversation with Baptiste himself and refused to pay the bill for the same reason -- namely, that his father's lot occupied thirty feet, or one-half the width of the property improved as Dickson Street where it bounded his lot, and hence the improvement was made on private property. These conversations and refusals to pay Baptiste occurred long subsequent to the issuance of the tax bill and conduced, along with the written assignment on the back of it, to prove Baptiste was the owner and holder of it -- a fact not really disputed; for the contention urged at the trial against the liability of the defendant related entirely to others matters.
I. A minor defense is that part of the cost of bringing Dickson Street to the established grade was included in the tax bill and that the board of aldermen could not impose this cost on the lots abutting on the street unless, in the judgment of said board, the general revenue fund of the city was not in a condition to warrant expenditure from it for bringing the street to grade. [R. S. 1899, sec. 5988; R. S. 1909, sec. 9410.] The ordinance, No. 877, approved May 16,...
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