City of Salem v. Young

• Decision Date: 07 February 1910
• Citation: 142 Mo. App. 160,125 S.W. 857
• Parties: CITY OF SALEM ex rel. RONEY et al. v. YOUNG.
• Court: Missouri Court of Appeals

125 S.W. 857

142 Mo. App. 160

CITY OF SALEM ex rel. RONEY et al. v. YOUNG.

Springfield Court of Appeals. Missouri.

February 7, 1910.

On Motion for Rehearing, February 28, 1910.

1. MUNICIPAL CORPORATIONS (§ 565) — PUBLIC IMPROVEMENTS — TAX BILLS — ACTIONS — DEFENDANTS — Co-owners.

The statute requiring a tax suit to be commenced against the record owner being to enable plaintiff to better ascertain against whom suit should be commenced, it is sufficient if the real owner is made defendant, and a judgment may be rendered against realty in an action on a special tax bill so as to bind the parties made defendant without making all the persons in interest defendants, the actual defendants having an action for contribution against the owners not made parties, so that where joint owners of land made verbal partition, and one of them constructed his part of the sidewalk, the other owner, in an action against him on special tax bills issued for the construction of sidewalks, could not complain that his co-owner was not made a defendant.

2. MUNICIPAL CORPORATIONS (§ 444) — SPECIAL ASSESSMENTS — REGULARITY OF PROCEEDINGS.

To recover an assessment for public improvements, only a substantial compliance with the law is required.

3. MUNICIPAL CORPORATIONS (§§ 488, 489) — PUBLIC IMPROVEMENTS — CONSTRUCTION OF SIDEWALKS — NOTICE OF OWNER — WAIVER.

Where a property owner attended a meeting of the board of aldermen at which an ordinance condemning a sidewalk adjacent to his property was passed and requiring the construction of a new sidewalk, and then notified the city that he would not pay for the construction of a new walk, he thereby waived the right to formal notice of the proceedings, and cannot set up want of such notice as a defense to a suit on tax bills; the object of notice being merely to allow the owner to make any objections to the proceedings, or to build the sidewalk himself.

4. MUNICIPAL CORPORATIONS (§ 29) — EXTENSION OF BOUNDARIES — EXTENSION OVER UNPLATTED LAND.

Under Rev. St. 1879, § 4932, authorizing the mayor and board of aldermen of a fourth-class city, with the consent of the majority of the qualified voters, to extend the city limits over any adjacent territory, such a city could extend the city limits over unplatted adjacent territory.

5. MUNICIPAL CORPORATIONS (§ 17) — ORGANIZATION — "DE FACTO CORPORATION."

Any actual organization of a municipality in ostensible possession and the actual exercise of municipal powers is a "de facto corporation."

6. MUNICIPAL CORPORATIONS (§ 35) — EXTENSION OF LIMITS — VALIDITY OF PROCEEDINGS — COLLATERAL ATTACK.

The de facto exercise of corporate powers by a municipal corporation must be assailed directly by the state in quo warranto and cannot be collaterally attacked, so that in an action on special tax bills issued for public improvements, made in territory over which the city had exercised jurisdiction for 22 years, as a part of the city, the validity of the extension of the city limits over such territory cannot be set up as a defense.

7. MUNICIPAL CORPORATIONS (§ 35) — TERRITORIAL EXTENT — EXTENSION OF LIMITS — REASONABLENESS.

The reasonableness of an extension of city limits may be inquired into collaterally in a suit to enforce rights claimed under such extension, as in a suit on tax bills for improvements made in the extension, but it will be presumed that the extension was a reasonable exercise of the municipal power, and the burden is on an objector to show the contrary; any doubt as to its reasonableness being resolved in favor of the city.

8. MUNICIPAL CORPORATIONS (§ 111) — ORDINANCES — VALIDITY — UNREASONABLENESS.

An ordinance may be declared void for unreasonableness, where it is oppressive, unequal, and unjust, or where it is wholly unreasonable.

9. MUNICIPAL CORPORATIONS (§ 567) — ACTION ON SPECIAL TAX BILL — DEFENSES — PLEADING.

In an action on special tax bills issued for the cost of a sidewalk constructed in territory annexed to a city pursuant to ordinance, in order to raise issues of the reasonableness of the extension of the city limits to such territory and of the ordinances requiring the construction of the sidewalk, defendant should specially plead such objections.

10. MUNICIPAL CORPORATIONS (§ 422) — PUBLIC IMPROVEMENTS — ASSESSMENTS — UNPLATTED GROUND — CONSTRUCTION OF SIDEWALKS — "LOT."

Rev. St. 1899, § 5979 (Ann. St. 1906, p. 3020), authorizes fourth-class cities to open and improve streets, make sidewalks, etc., and gives them exclusive control of all streets within their limits. Section 5981 authorizes them to repair sidewalks and levy special assessments on all lots and pieces of ground abutting such improvements. Held, that an unplatted tract within the limits of a fourth-class city can be taxed for the construction of sidewalks, provided such exercise of the taxing power is reasonable under the circumstances; the word "lot" used in section 5981 including tracts or parcels of land, even if the section did not authorize assessments on all pieces of ground.

Appeal from Circuit Court, Dent County; Harry Clymer, Special Judge.

Action by the City of Salem, on the relation and to the use of William Roney and another, against W. W. Young. From a judgment for defendant upon a directed verdict, plaintiff appeals. Reversed and remanded for new trial.

This was an action commenced by the city of Salem as a municipal corporation organized under the provisions of chapter 91, art. 5, of the Revised Statutes of 1899 (Ann. St. 1906, pp. 2986-3031), as a city of the fourth class.

The petition is, in substance, as follows: On the 7th day of September, 1908, the board of aldermen of the city of Salem passed an ordinance condemning the sidewalk on the east side of Front street and providing for the removal of the same and the construction of a new sidewalk in place thereof, and levying the cost of work, grading, and excavating as a special assessment upon the land abutting said improvement. The respondent, as claimed by the city, was the owner of said land and refused to construct the walk as ordained by the city. The street commissioner estimated the cost of the walk at $126, and, the respondent having refused to construct the walk, the same was built by the city under a contract with William Roney and Jesse Ward, relators, as contractors. After its construction, a special tax bill was issued in due form in favor of the contractors for the amount due them for constructing the walk. This tax bill, by the provisions of the ordinances of the city, became a lien on the lot abutting said improvement.

To the petition the respondent answered that he was joint owner with one L. N. Coffman of the lot abutting the improvement, denying that said land was any part of the city of Salem, and alleging that the same was not within the corporate limits thereof and not subject to the jurisdiction of the city, and that it had never been laid out and platted; that under the ordinances of the city he was entitled to notice that such sidewalk had been ordered constructed; that no notice was in fact given him; that the tax bill was vague and indefinite and did not properly describe the land on which it purported to be a lien.

A trial was had before a jury, which was by the court peremptorily instructed to return a verdict for the respondent.

As to the ownership of the land, there was evidence showing that the respondent and one L. N. Coffman had entered into an arrangement whereby Coffman was the owner of the north one-half and respondent was the owner of the south one-half of the lot, and on the strength of this arrangement Coffman had constructed a sidewalk along the north side of the tract.

The points mainly relied on by respondent are that the land is not within the city, and that he received no such notice as he was entitled to under the ordinances of the city.

Relators introduced in evidence the tax bill and showed the title of respondent and demand for payment. The respondent introduced an order of the county court of Dent county, in which Salem is situated, dated November 8, 1881, incorporating the city of Salem and setting out its metes and bounds within the limits so incorporated; the land of the respondent not being within such limits. He also introduced an ordinance requiring that, in case of the condemnation of a sidewalk, a full description should be given of the lots or pieces of ground abutting on the same, and requiring an order to be served on the owner to remove the sidewalk so condemned. Respondent offered evidence to show the condition of the sidewalk condemned, the amount of travel on it, and its location with reference to other portions of the city.

At the close of respondent's case, the relators requested a peremptory instruction, which being refused, they offered in evidence a certificate in the ordinance book of 1898 containing an ordinance submitting the proposition to extend the limits of the corporation to the voters at the April election in 1886, which proposed extension included the land of respondent; also evidence showing that the city records prior to the year 1902 were lost or burned and could not be produced; that the proposition to extend the city limits was voted on and carried as submitted at the election in April, 1886. Relators also offered evidence to show that the city had exercised jurisdiction over such territory since that date, policing the same and collecting taxes, and that the residents of the included territory had voted at city elections and exercised the rights and franchises of citizens of the city. This last offer of evidence was rejected by the court.

J. D. Gustin, Fred J. Smith, and Wm. P. Elmer, for appellant. Miss Gratia E. Woodside and Lamar & Arthur, for respondent.

NIXON, P. J. (after stating the facts as above).

1. The question is raised by the respondent as to the proper parties defendant to the suit on the tax bill. It is contended that one L. N. Coffman was a joint owner...