City of Laclede v. Libby
| Decision Date | 14 June 1926 |
| Citation | 285 S.W. 178,221 Mo.App. 703 |
| Parties | CITY OF LACLEDE TO USE OF JOHN ABELL, RESPONDENT, v. OL F. LIBBY, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Linn County.--Hon. J. E Montgomery, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
C. A Johnson for respondent.
O. F Libby, per se, and Charles K. Hart for appellant.
Trimble, P. J., absent.
This is an action to enforce payment of a special tax bill assessed against certain lots in the city of Laclede, alleged to be the property of defendant.
The facts of record are that Laclede is a city of the fourth class, in Linn county, Missouri, and that said city by its certain ordinance No. 201, established oil district No. 2, within the corporate limits of said city, for the purpose of having the streets of said district oiled and road oil, and providing for the oiling thereof, the cost to be assessed and levied as a special tax bill upon the several lots, tracts and parcels of land fronting and abutting upon the streets to be so oiled; that in pursuance of the provisions of said ordinance, the board of aldermen of said city awarded to one John Abell the contract for oiling the said streets within the established district, in accordance with the terms thereof. The oiling was done by said Abell, under contract and under the terms specified by the ordinance. After completion of the work of oiling, the cost thereof was duly assessed and apportioned against the several lots, tracts and parcels of land chargeable therewith, in proportion to the frontage upon the streets so oiled. Thereafter, on December 1, 1921, the city issued to John Abell its tax bills of that date, according to the said assessment and apportionment, in payment for the work of oiling said streets.
The petition alleges that the defendant O. F. Libby is the owner of abutting frontage of 100 feet on Olive street in said oiling district No. 2, in front of which said street was oiled, under the ordinance and contract, being lots 3 and 4, block 2, Bell's Addition to said town of Laclede. The amount apportioned and assessed against said lots was $ 5.57; that among the tax bills issued to said Abell was the one involved in this suit; that said bill was payable at once with eight per cent interest from date; that the same is now due and payable and is unpaid. The suit was instituted in the name of the city of Laclede to the use of John Abell.
The answer, after admitting the corporate status of the city of Laclede, is a general denial. As further answer it is alleged that the city of Laclede has no interest whatever in the tax bill sued on and is not a necessary party to the suit; that there is, therefore, a misjoinder of parties plaintiff; that there is also a misjoinder of parties defendant in this, that the petition alleges defendant is the sole owner of the property sought to be charged with said tax bill, when in truth and in fact, defendant is not the sole owner thereof, but that the record title is in defendant Oscar F. Libby and Rebecca J. Libby, husband and wife, as an estate in the entirety; denies that the mayor and board of aldermen had any authority to enact ordinance No. 201 referred to in the petition, and also denies that any of the subsequent ordinances, contracts, resolutions and assessments made or attempted to be made were in accordance with any lawful authority, and that the same are binding as a valid law of the city to organize oiling district No. 2, or to sprinkle oil on the street in front of the lots described in said petition and issue a special tax bill for the oiling of said street in front of defendant's property. Further, defendant denies that any estimate was made of the amount of oil to be used and the cost of oiling said street, as provided by law and reported to the board of aldermen, or that any contract was ever made with any person to oil said street, as required by law.
The answer further states that it is not true, as stated in the petition, that lots 3 and 4, block 2, Bell's Addition to the town of Laclede, from Olive street on, are within oiling district No. 2, as alleged; that Olive street is one of the streets in the original town of Laclede, but not one of the streets in Bell's Addition to the town of Laclede where defendant's property is located. And defendant further says that the sprinkling of oil upon the street in front of said lots is not an improvement or betterment to the adjacent property of a permanent character for which a tax bill might be lawfully issued, and that all the ordinances relied upon by plaintiff in its petition are oppressive, against common right, and an attempt to take defendant's property and subject it to unreasonable burden without due process of law, as defined by the Constitution of the United States and of the State of Missouri; denies that any tax bill was ever made out, or presented to defendant for payment prior to the commencement of this suit.
The reply of plaintiff was a general denial.
A jury was waived and the cause was tried to the court. The issues were found for plaintiff and judgment was rendered against defendant in the sum of $ 5.57, with interest at eight per cent per annum from December 1, 1921, and the tax bill sued on was made a lien against the property described in the petition and for costs. Motions for a new trial and in arrest were unavailing and an appeal to the Supreme Court was allowed. That tribunal decided it was without jurisdiction and the cause accordingly was transferred to this court for consideration.
The tax bill sued on is as follows:
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Johnson v. McKinney
... ... See 48 Am.Jur. 748, Sec. 233; and ... 752, sec. 241; 31 Am.Jur. 401, 405, 407, 408; City" of ... Laclede, to Use of Abell v. Libby, 221 Mo.App. 703, 285 ... S.W. 178 ... \xC2" ... ...
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