City of Pleasant Hill v. Dasher
| Decision Date | 05 March 1894 |
| Parties | City of Pleasant Hill, Appellant, v. Dasher |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. C. W. Sloan, Judge.
Affirmed.
N. M Givan and H. A. Jones for appellant.
(1) Section 11 of plaintiff's charter, which provides that the city council shall have power by ordinance to cause the owners or occupiers of lots to pave and repair sidewalks adjacent to the property which they may own or occupy, and if they fail, the council may cause it to be done and recover the expense thereof by an action of debt, in the name of the corporation, is not in conflict with any provision of the constitution of this state. Cooley on Taxation, 398; Cooley on Const. Lim., 629, 734; 2 Dillon on Mun. Corp., sec. 798; Kansas City v. Huling, 87 Mo. 203; St. Louis v Richeson, 76 Mo. 470; St. Louis v. Ranken, 96 Mo. 500; Company v. Bobb, 37 Mo.App. 486; Goddard, Petitioner, 16 Pick, 504-509; Independence v. Gates, 110 Mo. 382. (2) The justice of the peace had jurisdiction to hear and try this action. The title to real estate or tenements was not in question or in issue in the cause. R. S. 6124, 6219; Williams v. Browning, 45 Mo. 475; Wilson v. Petty, 21 Mo. 418; Musick v. Chamlin, 22 Mo. 175; Seibert v. Allen, 61 Mo. 488; Stadler v. Roth, 59 Mo. 402; Blondeau v. Sheridan, 103 Mo. 134; Willard v. Woodland, 26 P. 284 (Utah) ; Stout v. Keyes, 2 Douglas, 184; Ohse v. Bruss, 45 Wis. 442; Bandlow v. Thieme, 53 Wis. 57; Williams v. McCartney, 69 Cal. 556.
James T. Burney and A. A. Whitsitt for respondent.
(1) Personal judgments against the owners of property in a city on account of assessments for improvement of streets, etc., are null and void, and statutes authorizing such judgments are unconstitutional and void. St. Louis to use v. Allen, 53 Mo. 44; Taylor v. Palmer, 31 Cal. 240; Louisiana v. Miller, 66 Mo. 467; Seibert v. Allen, 61 Mo. 488; Independence v. Gates, 110 Mo. 380; Neman v. Smith, 50 Mo. 525; Constitution of Mo. 1875, art. 2, sec. 21. (2) If the plaintiff seeks to charge the property of the defendant adjoining the street improved with this debt, then the title to real estate does come in question, and the justice of the peace has no jurisdiction to hear and try this action. R. S. 1889, sec. 6124; State ex rel. v. Hopkins, 87 Mo. 519; Tackett v. Vogler, 85 Mo. 480; Hunt v. Hopkins, 83 Mo. 13. (3) No legal notice was ever given defendant to build. He was entitled to ten days' notice in writing before he should begin building; said notice shall contain a description of each lot, and a general description of the character of the sidewalk, giving length, breadth and materials to be used, and not until the expiration of fifteen days after service of such notice can the council cause the same to be done at defendant's expense. R. S. 1889, sec. 1896. This statute must be complied with and proof made by plaintiff before there can be any recovery against defendant. (4) Defendant did not waive his right to object to the jurisdiction of the justice by failing to appear before him and file the affidavit mentioned in Revised Statutes, 1889, sec. 6219. Webb v. Tweedie, 30 Mo. 488; Dillard v. Railroad, 58 Mo. 74; Compton v. Parsons, 76 Mo. 455; Meier v. Thieman, 90 Mo. 433; Bennett v. McCaffery, 28 Mo.App. 220; Houston v. Gantzhorn, 52 Mo.App. 220; Bredwell v. Ins. Co., 76 Mo. 321; Patterson v. Yancy, 81 Mo. 380; State ex rel. v. Hopkins, 87 Mo. 579.
OPINION
The city of Pleasant Hill brought this suit before a justice of the peace to recover $ 19.23 for labor done and material furnished in building a plank sidewalk along a street in front of two lots owned by the defendant, Charles W. Dasher. The defendant failing to appear, the justice gave judgment for the plaintiff by default. Defendant in due time filed a motion to set aside the judgment and for a new trial, which was overruled, and he appealed. The circuit court gave judgment for the defendant and the case is here on the plaintiff's appeal.
In the view we take of this case it is not necessary to recite the evidence introduced on the trial in the circuit court. It is sufficient to say an ordinance was produced, providing for the plank walk in question. The defendant failed or refused to construct the walk in front of his lots, and thereupon the city caused the work to be done.
The city of Pleasant Hill has not elected to come under the general law relating to cities of its class. It was and is governed by the special act of the fourteenth of March, 1859 (Laws of 1858-9, p. 155), and the amendments thereto. The eleventh section of that act provides: "The council shall have power to cause the owners or occupiers of real estate to pave and repair sidewalks adjacent to the property which they may own or occupy; and if any such owner or occupier shall fail to pave or repair the same, as required by ordinance, the council may cause the same to be done, and may recover the full expense thereof by an action of debt in the name of the corporation."
The act of March 30, 1887 (Acts of 1887, p. 95), provides:
to be given, etc. The section goes on to provide that if the owner or owners do not do the work required to be done, "said council shall cause such sidewalk to be built or repaired at the expense of such town or city, the cost and expense of which shall constitute a lien on the property or lot along which said sidewalk may be built or repaired as aforesaid, and the said town or city may enforce the said lien against such property or lot in any court of competent jurisdiction."
The claim made by the city in the circuit court and repeated here is this, that the city was entitled to a personal judgment against the defendant for the work done and materials furnished in the construction of the sidewalk, and this claim stands on the eleventh section of the charter. The defendant insists: First, said eleventh section is unconstitutional and void; second, it was repealed by the act of 1887; and, third, the justice had no jurisdiction of this action.
One thing is too clear to admit of a shadow of doubt, and that is this: The act of 1887 applies to the city of Pleasant Hill; for that city has less than ten thousand inhabitants, and was governed by a special charter when the act of 1887 was passed. That city therefore has and possesses all the powers specified in the last named act. Now the eleventh section of the special act undertakes to give the city an action of debt to recover the cost of paving or repairing a sidewalk, when the work is done by the city; while the act of 1887 gives the city a lien on the adjoining property for the cost of such work and an action to enforce such lien, but it does not give the city the right to a personal judgment against the property owner. The question then arises whether the city has and possesses both remedies, or whether the enforcement of the lien is the only remedy. In short, does the act of 1887 repeal section 11 of the charter?
In disposing of this question it is well to bear in mind the former adjudications of this court. Neenan v. Smith 50 Mo. 525, was an action to collect tax bills for macadamizing a street. It was held that plaintiff was not entitled to a general judgment against the owner of the land, and doubt was expressed whether the legislature had the power to authorize a general judgment in such cases. The authorities on this question were reviewed in the subsequent case of St. Louis to use v. Allen, 53 Mo. 44, and it was held in clear and distinct terms that the legislature had no power to authorize a personal judgment against the property owner in suits to recover these local assessments. The ruling...
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