City of Sedalia v. Donohue

• Citation: 89 S.W. 386,190 Mo. 407
• Parties: CITY OF SEDALIA, to Use of SEDALIA NAT. BANK, v. DONOHUE.
• Decision Date: 01 July 1905
• Court: United States State Supreme Court of Missouri

89 S.W. 386

190 Mo. 407.

CITY OF SEDALIA, to Use of SEDALIA NAT. BANK, v. DONOHUE.

Supreme Court of Missouri, Division No. 1.

July 1, 1905.

1. COURTS—STARE DECISIS.

A decision of the Kansas City Court of Appeals is not binding on the Supreme Court, the doctrine of stare decisis not being applicable.

2. CONSTITUTIONAL LAW — CONTRACT — IMPAIRMENT OF OBLIGATION.

Where the Kansas City Court of Appeals decided that under Rev. St. 1889, § 1498, conferring power on municipal councils to provide for street improvements and levy taxes therefor, a tax bill issued by the clerk in pursuance of a resolution of the council was valid, tax bills subsequently issued by a city clerk, relying on such decisions, did not constitute contracts which were impaired by a subsequent decision of the Supreme Court holding them invalid.

3. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS —ASSESSMENTS FOR BENEFITS.

Rev. St. 1889, § 1498, confers power on the councils of cities of the third class to cause street improvements to be made, and to contract therefor, and to levy a tax therefor. Section

1495 confers on such cities the power to enact ordinances for the improvement of streets. Section 1496 provides that assessments for such purposes shall be levied as special taxes, and special tax bills shall be issued therefor, and shall be paid in a manner provided by ordinance. Act April 19, 1893 (Acts 1893, p. 65), requires the cost of street improvements to be levied as a special assessment on the abutting property according to the front-foot rule, and makes other provisions similar to those above recited. Held that, being vested in the city council to be exercised by ordinance, it was not competent for the council to delegate the power to levy and assess the cost of street improvements to the city clerk.

4. SAME.

Under Act April 19, 1893 (Acts 1893, p. 65), and Rev. St. 1889, § 1498, giving councils of cities of the third class power to cause street improvements to be made, to contract therefor, and to levy the tax for the payment thereof, the council must by ordinance levy the tax after the improvement has been completed and accepted.

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

Action by the city of Sedalia, to the use of the Sedalia National Bank, against Daniel Donohue. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Rehearing denied.

J. H. Bothwell and Charles E. Yeater, for appellant. Geo. W. Barnett and Montgomery & Montgomery, for respondent.

MARSHALL, J.

This is an action on a special tax bill for $41.35, being one-third of the total sum assessed against the defendant's lot for the improvement of Main street, between Moniteau and Washington avenues, in Sedalia. At the close of the plaintiff's case the court directed a verdict for the defendant, and judgment was entered upon the verdict, and thereupon the plaintiff appealed.

The petition alleges that the city of Sedalia is a city of the third class; that the Sedalia National Bank is a national bank organized under the laws of the United States; that on the 7th of August, 1893, the city of Sedalia passed an ordinance providing for the macadamizing of Main street, between Moniteau and Washington avenues, which ordinance was approved on August 8, 1893; that pursuant to the ordinance the mayor and council awarded a contract for the doing of the work to White Bros.; that they did the work; that the work was received, approved, and accepted by the mayor and council, by resolution duly passed on the 4th of January, 1894; that after the completion and acceptance of the work the cost thereof was duly computed and apportioned among the lots to be charged therewith according to law; that the council did by ordinance levy and assess the cost of the work on the abutting property in proportion to the front feet thereof; that the city clerk apportioned the cost of the work among the property holders, and made out and certified tax bills therefor; that pursuant to statute the defendant elected to pay the tax bills in three annual installments, and accordingly three tax bills, for $41.35 each, were issued against the property by said city clerk. The suit is to recover on the first of said three tax bills. The defendant's answer admits the passage of the ordinance and the letting of the contract, but denies that the work was completed or accepted by the city; denies that the council and mayor of the city by ordinance levied and assessed the cost of the work; denies that the city clerk apportioned the cost of the work among the property owners, but admits that the city clerk issued and delivered to the contractors the tax bills set out in the petition; denies any demand for the payment thereof; avers that the work was not done according to contract or in a workmanlike manner; avers that after the contractor had completed the work, to wit, on the 2d of June, 1894, he reported the same as completed to the city engineer, and thereupon the city engineer reported to the council that the work was finished, and the city council referred the report of the city engineer and the question of the acceptance of the work to the committee on streets and alleys, but that said committee had never made any report thereon; avers that on the 4th of June, 1894, the council passed a resolution directing the city clerk to issue the tax bills sued upon, and that the clerk then issued tax bills for such amount as he believed to be their just proportion for the work done, and that afterwards the contractors, not being satisfied with the tax bills and claiming that they were not large enough, returned them to the city clerk and had him declare them void, and so mark them on the records in his office, and issue new tax bills for a larger sum against the respective property owners, amongst them the tax bills sued on; avers that said tax bills are void and of no effect for said reasons; alleges that the mayor and city council did not by any ordinance levy any tax or make any assessment upon the defendant or his property, but that the tax bills sued on were issued without authority of law by the city clerk. The reply is a general denial, with express admissions and pleas, among which are that no ordinance was passed by the city, after the work was done, levying or assessing a special tax therefor; that the plaintiff purchased the tax bills on the faith of and reliance upon the decision of the Kansas City Court of Appeals in the case of City of Nevada ex rel. R. S. Gilfillan v. Morris et al., 43 Mo. App. 590, rendered February 2, 1891, and that said tax bills were issued upon the authority of that case; alleges that said case was, at the time plaintiff advanced money to the contractor to do the work and at the time plaintiff acquired the tax bills, the only adjudication in this state on the subject, and that that case held that the city clerk had authority to levy such special assessments and issue such tax bills; admits that thereafter, on the 26th of June, 1894, the Supreme Court of Missouri in the case of City of Nevada to the Use of R. S. Gilfillin v. Eddy et al., 123 Mo. 563, 27 S. W. 471, held that the city council had no lawful right to delegate to the city clerk the right to levy a special assessment for street improvements, and to issue special tax bills therefor, and expressly disapproved and overruled the decision of the Kansas City Court of Appeals in the Morris Case. But the plaintiff in said reply averred that the ordinance and work done thereunder, and the tax bills issued therefor, antedated the decision of the Supreme Court in said Eddy Case, and that "to apply the rule therein laid down to the facts in this case, as alleged in the petition and this reply, would give the same retroactive effect, and would impair the obligation of the contracts respectively entered into as aforesaid by said White Bros., contractors, and said bank, and would be in violation of the tenth section of the first article of the Constitution of the United States, prohibiting the impairment by a state of the obligation of a contract." Thus it will be observed that the petition charges that the council and mayor of the city by ordinance levied and assessed the cost of the improvement, whereas the reply admits that the council and mayor passed no ordinance levying and assessing the special taxes, but by implication admits the truth of the answer that the tax bills were issued by the clerk pursuant to a resolution of the council, and that the clerk levied, assessed, and apportioned the cost of the work, and avers that the tax bills so issued had been declared legal by the Kansas City Court of Appeals in the Morris Case, and that upon the faith of that case the plaintiff purchased said tax bills before the decision of this court in the Eddy Case, and that to apply the rule laid down by this court in the Eddy Case would impair the obligation of the contract between the city and White Bros., and between White Bros. and the plaintiff, and hence would violate section 10 of article 1 of the Constitution of the United States.

1. Stare decisis: The plaintiff invokes the doctrine of stare decicis: The contention of the plaintiff is that in the case of City of Nevada, to the Use of Gilfillan v. Morris, 43 Mo. App. 586, the Kansas City Court of Appeals held that it was competent for a city clerk of a city of the third class to levy, assess, and apportion the cost of a street improvement, and that it was not necessary, under section 1498, Rev. St. 1889, for the council and mayor by ordinance to levy and assess the same, but that the act of so doing was a purely ministerial act, which the council might delegate by resolution to a city clerk; that the contract with White Bros. was entered into after said decision, the work was all done and the tax bills issued by the clerk before the decision of this court in the Eddy Case, supra, and therefore, under the doctrine of stare decisis, this court...