City of Sedalia v. Smith

• Decision Date: 29 June 1907
• Citation: 206 Mo. 346,104 S.W. 15
• Parties: CITY OF SEDALIA ex rel. TAYLOR v. SMITH.
• Court: Missouri Supreme Court

104 S.W. 15

206 Mo. 346

CITY OF SEDALIA ex rel. TAYLOR v. SMITH.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

On rehearing, July 13, 1907.

1. MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — ORDINANCES — CONSTRUCTION.

An ordinance entitled one for "the grading and paving" of a certain street, providing that the street "be brought to the established grade and paved according to the specifications herein contained," will be construed as one for paving and "for doing all excavating and grading necessary for the same" (after the street had already been brought to grade), in which case, under Laws April 19, 1893, p. 91, § 108 (5), the ordinance would be valid, and not one for bringing the street to the established grade, in which case, under section 109, it would be invalid for want of necessary steps; the specifications in the ordinance being only as to the reduction of the street to a plane, the thickness of the pavement, below the established grade; the grade as established by a previous ordinance, referred to in the ordinance in question, as shown by the profile and testimony of the city engineer, being practically the same as the natural grade of the street; only "paving" being spoken of in the petition of the property owners for the ordinance; the notice to contractors being to "paving contractors," though speaking of "grading and paving" the street; the two estimates filed by the engineer, one for "paving," the other for "bringing to grade and paving," being the same in amount; and no substantial work being required to bring the street to the established grade.

2. SAME — COMPLETION OF WORK — DELAY — EFFECT ON TAX BILL.

Though a paving contract provided for the work being done within 100 days, yet it having stipulated for a forfeiture of a certain amount per day for any delay, and authorized the extension of time on good cause shown, the tax bills are not void because the work was not done in time.

3. SAME — PROVISION FOR REPAIRS.

An ordinance for street paving or the contract for the work is not invalidated by a provision for the contractor keeping the paving in repair for a certain time.

4. CONSTITUTIONAL LAW — EQUAL PROTECTION OF LAWS — SPECIAL ASSESSMENTS.

Neither Const. U. S. Amend. 14, § 1, forbidding a state to deny to any person the equal protection of the laws, nor Const. Mo. art. 10, § 3 [Ann. St. 1906, p. 275], providing that taxes shall be uniform on the same class of subjects, is contravened by Acts April 23, 1893, p. 92, § 109, providing that a city council may by ordinance include in a special assessment for street improvement the cost of bringing the street to the established grade, when in its opinion the general revenue fund of the city does not warrant an expenditure therefor.

Appeal from Circuit Court, Pettis County; George F. Longan, Judge.

Action by the city of Sedalia, on the relation of S. H. Taylor, against David H. Smith. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

Scarritt, Scarritt & Jones and Chas. E. Yeater, for appellant. John Cashman and Barnett & Barnett, for respondent.

GRAVES, J.

This is an action upon a special tax bill issued for improving a portion of Fourth street, in the city of Sedalia, the improved portion being from the west line of Thomson avenue to the east line of Park avenue. It is one of a number of cases growing out of the refusal of the property owners on said portion of Fourth street to pay the special tax bills issued to improve the street. The cases, therefore, are but slightly different in the essential facts, as well as in law, and three of them were argued here together. Another had previously gone to the Kansas City Court of Appeals. City of Sedalia v. Abell, 103 Mo. App. 431, 76 S. W. 497. In the Abell Case the Court of Appeals at first simply reversed the judgment of the lower court, which was for the plaintiff. Afterwards the opinion was so modified as to reverse the judgment and remand the cause for new trial. Much of the history of this case can therefore be gathered from the facts in the opinion of that case. After the adverse ruling of the Court of Appeals in that case, the plaintiff injected a constitutional question into this case, and for that reason we are to determine the validity of a very small tax bill. The ingenuity of able counsel seems to know no bounds, and through such ingenuity, lawfully exercised, however, as in this case, we are the unwilling servants to settle many extremely small suits. But constitutional questions must be settled when properly raised, and can be settled in a little as well as a big case, if we are able to find the said constitutional question.

The city of Sedalia is a city of the third class, and the law governing it at the time involved in this action was the act of 1893, approved April 19, 1893 (Laws 1893, p. 65 et seq.). The sections applicable to this case are 108, 109, and 110. Section 108, among other things, provides: "The cities coming under the provisions of this act in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes and upon the conditions in this section specified, in addition to the other powers granted by law: * * * Second — To open and improve streets, avenues, alleys and other highways, and to make sidewalks and build bridges, culverts and sewers within the city, and to exercise exclusive control over streets and alleys, and establish grades therefor. Third — The cost of bringing to grade all streets, avenues and alleys and other highways, and for the building of bridges and culverts and public sewers and foot-walks across streets, avenues, alleys and other highways, may be paid out of the general revenue fund of the city, or an assessment shall be made therefor on all the taxable property within the limits of the city, not exceeding five mills on the dollar for these purposes in any one year. * * * Fifth — The cost of paving, macadamizing, guttering and curbing (where such curb is set out into the streets beyond the sidewalk) all streets, avenues, alleys and other highways, or any part thereof, or any connection therewith, and repairing the same, and for doing all excavating and grading necessary for the same (after said streets, avenues, alleys and other highways, or parts thereof or connections therewith, have been first brought to grade, as hereinbefore provided), shall be levied as a special assessment upon all lots and pieces of ground upon either side of such street, avenue, alley or other highway, or part thereof or connection therewith, abutting thereon, along the distance improved, in proportion to the front foot." By clause 9 of said section, the special tax bills issued in payment of work done "shall, in any action thereon, be prima facie evidence of the regularity of the proceedings for such special assessment, of the validity of the bill of the doing of the work and of the furnishing of the materials charged for and of the liability of the property to the charge stated in the bill." Section 109 is as follows: "The city council may, by ordinance, include in the special assessment the cost of bringing to the established grade any street, avenue, alley or other highway or square or area formed by the intersection or meeting of streets or other highways or part thereof, proposed to be improved as herein provided, when in its judgment or opinion the general revenue fund of the city is not in condition to warrant an expenditure therefrom for bringing the same to the established grade: Provided, that the resolution declaring such work necessary to be done, and published in some newspaper published in the city, shall, in addition to the other work of improvement therein provided for, include and describe the work of bringing such street, avenue, alley or other highway, or square, or part thereof to the established grade. In all such cases where such work is authorized by virtue of such a resolution, and is contracted for in pursuance thereof, the bringing to grade as above described shall be included in the same contract with the other work provided for therein and tax-bills shall be issued in payment for all said work as may be provided for by ordinance." Section 110 simply provides the proceedings to be followed in having public work upon the street done, and it is unnecessary to set it out in full here.

The petition is a usual one upon a special tax bill. Answer admits the ownership of the lot against which judgment lien is sought, but avers that the tax bill and all proceedings and contract in relation to the public work out of which it grew are void. These will be noticed in course of the opinion. The answer also contained a general denial. The reply pleaded much new matter, in which is the alleged constitutional question by reason of which the case is here for determination. But such of these matters as are necessary will be noticed in the course of the opinion. Plaintiff introduced the tax bill and rested their case. This tax bill was for paving the above-named street, and was in the sum of $166.57, and described the lot owned by defendant. Defendant thereupon introduced the resolution and ordinance passed by the city council, together with all the proceedings had with reference to this work, including the published notice and the contract. He also introduced evidence for the purpose of showing that the work was not done within time, this being one of the special defenses. Plaintiff then offered evidence in support of the matters set up in the reply, some of which was admitted and much excluded. All these matters can be more properly noted in the course of the opinion, and will be noticed in so far as necessary for a determination of the case. For the present, the above sufficiently states the case.

1. Defendant contends that the proceedings in this case are under section 109 of the act of 1893, supra, and are void and ineffective,

and the tax bill issued thereon is...