City of Mexico v. Lakenan
| Decision Date | 18 February 1908 |
| Citation | 108 S.W. 141,129 Mo.App. 180 |
| Parties | CITY OF MEXICO, Respondent, v. LAKENAN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
AFFIRMED.
Judgment affirmed.
Clarence A. Barnes for appellants.
(1) Further, section 9 of sidewalk ordinances requires one week's advertisement for bids and the affidavit of the printer shows publication of advertisement for bids on "Sept. 3d, 4th, 5th, 6th, 7th, 8th and 10th" which was not a week for a week is a definite period of time commencing on Sunday and ending on Saturday." Leach v Burr, 188 U.S. 510, 47 L.Ed. 567; Ronkendorf v Taylor's Lessee (U. S.), 4 Pet. 360, 7 Law Ed. 882 886; Medland v. Linton, 60 Neb. 249, 82 N.W. 866, 869; City of New Orleans, 27 So. 592, 594; In re Tyson, 22 P. 810, 812, 13 Colo. 482, 6 L. R. A. 472; Steinle v. Bell (N. Y.), 12 Abb. Prac. (N. S.) 171, 175; Holmes v. Croy, 164 Mo. 69. (2) Defendant's instruction numbered 2 should have been given, because the right and authority to issue the taxbills and collect thereon is based wholly upon the proposition that the sidewalks benefited the lots. Thornton v. Henry County, 115 Mo. 557; Sterling v. Gault, 117 Ill. 11, 7 N.E. 471; Construction Co. v. Hauessler, 201 Mo. 400.
A. C. Whitson for respondent.
(1) The causes of action on these taxbills were properly joined under section 593, Revised Statutes 1899, being causes relating to the same subject of action and arising out of the same transaction, and being in their nature actions ex contractu, and affecting all parties to the action. Ann. Statutes of 1906, sec. 593 and cases cited. Bogges v. Bogges, 127 Mo. 305, 29 S.W. 1020; Garstide v. Garstide, 113 Mo. 348; Michael v. St. Louis, 112 Mo. 348; Donovan v. Dunning, 69 Mo. 436; Reinhart v. Long, 95 Mo. 396. (2) The petition is sufficient as in an action on a taxbill issued by a city of the third class it is sufficient to allege the making of the bill, its contents and date and that defendant owns the lot against which assessed, and it is not necessary to plead an ordinance on which predicated. Patterson on Pleading, secs. 475, 476; Carthage v. Bagley, 73 Mo.App. 123; Kansas City v. American Surety Co., 71 Mo.App. 315; Moseley v. Weakley, 86 Mo. 451; Turner v. Patton, 54 Mo.App. 653. (3) Taxbills are prima-facie evidence of their own validity and the doing of the work and furnishing of the materials charged for and the liability of the property to the charge stated therein. Ann. Stat. 1906, sec. 5858; Laws of 1901, p. 63; Ann. Stat. of 1906, sec. 5863; R. S. 1899, 5863. (4) This throws the burden of pleading and proof on defendants, and it is for them to plead and prove the absence of material steps to make such bills valid. Sedalia v. Montgomery, 109 Mo.App. 88, 88 S.W. 1014. On its introduction the bill constitutes presumptive proof of all essentials to recovery and burden is on defendant to establish the omission of some material step. Heman v. Payne, 27 Mo.App. 484; Ess v. Bounton, 64 Mo. 100. (5) The estimate of the city engineer was sufficient. It correctly approximated the cost and set it at a given amount, thirteen cents per square foot. Sedalia v. Scott, 104 Mo.App. 595, 78 S.W. 276; Independence v. Briggs, 58 Mo.App. 241; Springfield v. Knott, 49 Mo.App. 612. (6) A publication for one week may be made by publication for seven days though one day intervenes on which there is no issue of paper making the publication. Trenton v. Collier, 68 Mo.App. 494; Clopton v. Taylor, 49 Mo.App. 117; Bank v. Stump, 73 Mo. 315; State v. Green, 66 Mo. 631; St. Joseph v. Landis, 54 Mo.App. 320; Paving Co. v. Muchenberger, 105 Mo.App. 47, 78 S.W. 28. (7) The question whether or not property is benefited cannot be raised on a special taxbill action. Paving Co. v. French, 158 Mo. 534, 58 S.W. 934, 181 U.S. 324; Heman v. Ring, 85 Mo.App. 231; Heman v. Schulte, 166 Mo. 409, 66 S.W. 163; Warren v. Paving Co., 115 Mo. 580.
--Plaintiff, a municipal corporation, constructed sidewalks in front of two lots belonging to defendants and this action is on the taxbills issued for the work. One of the bills amounted to $ 57.65, and the other to $ 59.55, and plaintiff obtained judgment on both of them in the court below. The petition is in two counts and this is insisted on as being a misjoinder of causes of action. Defendants own both pieces of property and both taxbills were made out against them and hence the two causes of action might be united in one petition in separate counts. [R. S. 1899, sec. 593.]
It is further insisted the petition did not state a cause of action because it did not set out the general effect of the ordinances under which the work was done, but only pleaded them by their titles and date of approval. The action is on the special taxbills and each count states the construction of the walk in front of the respective lot, the issuance of the taxbill, the substance of its contents, that the defendants owned the lot against which the lien is sought to be enforced, that plaintiff is a municipal corporation and owns and allowed the taxbill which was issued in its name and to its use. These facts sufficiently state the case for plaintiff and the demurrer was properly overruled. [Turner v. Patton, 54 Mo.App. 654; Vieths v. Planet, etc., Co., 64 Mo.App. 207; City of Carthage ex rel. v. Badgley, 73 Mo.App. 123.]
It is further insisted that plaintiff's petition is not based on special taxbills inasmuch as the amounts expended for labor and material, etc., are not set out therein or attached thereto as an exhibit. Section 5863 of the Revised Statutes of 1899, says if no bids are received for laying a sidewalk after an advertisement for bids, the city may construct the walk, at its own expense and shall keep an accurate account of the amount expended for labor and material, including grading and filling opposite each lot. That section does not require the party suing on a taxbill to attach to his petition, or embody in it, a statement of the separate items of expense for the various kinds of labor and material used in building the walk. We do not understand what defendant's counsel means by saying the action is not on special taxbills because of the absence of a recital in the petition or of an exhibit attached to it of these items. The action is on taxbills, and for that reason it is unnecessary to enumerate the different items of cost, as, perhaps it would be necessary to do if the action was on an account for the value of work done and material furnished.
It is further objected that one of the taxbills did not allege the giving of notice for the construction of the sidewalk along the property described in the bill and, therefore, did not constitute prima-facie evidence in favor of the plaintiff. The notice to the property-owner to which this point refers, is provided for in section eight of the sidewalk ordinances of the city of Mexico, which says that before making a contract for the construction of a sidewalk, the city shall give the property-owners, or their legal representatives, twenty days' written notice, in person or by mail, in time to provide for the construction of the walk. No doubt notice to the property-owner is required by said ordinance; but the contention that the taxbill must recite the giving of notice is without legal support. A taxbill is made by statute prima-facie evidence of the regularity of the proceedings for the assessing of the special tax, the validity of the bill, the doing of the work, the furnishing of the material charged for and the liability of the property for the amount of the bill. [R. S. 1899, sec. 5863.] We have been pointed to no statute or decision requiring the giving of notice to a property-owner to be recited in the bill. Lack of notice might be set up as a defense, but the defendant would have to prove no notice, or an inadequate one, was given.
It is further contended no valid estimate of the value of the work was made before the city had it done. Section 5858 of the Revised Statutes requires an estimate of the cost to be made and submitted to the municipal authorities by the city engineer, or other proper persons, before a contract for municipal work is done; and for bids letting a contract for the work in excess of the estimate. The record shows a written estimate of the cost of this sidewalk was submitted by the city engineer to the mayor and city council before the letting of the contract. His estimate was for a brick sidewalk according to the ordinance at thirteen cents per square foot. In this connection complaint is made of the refusal of the court to allow the defendant to prove by the city engineer that it was the practice of the city of Mexico, for its engineer to place the estimate of the cost of constructing sidewalks above the approximate cost thereof, in order that the bids for...
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