City of St. Louis ex rel. Creamer v. Otto

• Decision Date: 31 October 1865
• Parties: CITY OF ST. LOUIS TO USE OF JAMES CREAMER, Respondent, v. OTTO ŒTERS, Appellant.
• Court: Missouri Supreme Court

36 Mo. 456

CITY OF ST. LOUIS TO USE OF JAMES CREAMER, Respondent,

v.OTTO ŒTERS, Appellant.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Circuit Court.

This suit was for building a sewer, brought on a special tax bill certified by Truman J. Homer, city engineer, “that the charge against the property in the bill described is correct and in accordance with § 14 of ‘An act amendatory of and supplementary to the several acts incorporating the City of St. Louis,’ approved March 14, 1850, and also § 4 of ‘An act supplementary to the several acts incorporating the City of St. Louis,’ approved January 16, 1860. The receipt attached, signed by James Creamer, contractor, will cancel the charge against the property named above.” Dated July 26, 1860.

The suit was brought under ordinances Nos. 4508 and 4635 of the City of St. Louis, and under § 14 of an act of the General Assembly of the State of Missouri, entitled “An act amendatory of and supplementary to the several acts incorporating the City of St. Louis,” approved March 14, 1859. The amount claimed was $104.45.

At the trial the plaintiff proved the signatures to the certified special tax bill, also those to contract No. -- of the files in the city engineer's office, whereby James Creamer purports to contract with the city for building a sewer in “West First street sewer district, north of Poplar street.” to be finished 1st April, 1860, and then offered the same in evidence; to both of which the defendant objected, which objection the court overruled, and they were received in evidence. Plaintiff also offered said ordinances and act of the General Assembly, as well as § 4 of an act of said General Assembly supplementary to the several acts incorporating the City of St. Louis, approved January 16, 1860, which, under like objections, were submitted by the court.

It was proved that said Homer had not charge of the work on the sewer, but that one Vokrath, a deputy city engineer had, and that said Homer knew nothing whatever of the quality, quantity, or character of the work; also, that there was a natural drainage of the surface of said district; also; that the sewer was not petitioned for by any property holders of the district. It was admitted that the board of health had not recommended the construction for sanitary purposes; and it was offered to prove that the work was inadequate to the purpose of a thorough drainage of the district; that it did not thoroughly drain the property of the defendant, and that it was unnecessary; which the court excluded.

It was also in proof that James Creamer did not do the re-paving, iron, and cut-stone work; that in this bill the repaving, iron, and cut-stone work was charged; that the latter items were done by other parties, under different contracts.

The “West First street sewer district, north of Poplar street.” was established by ordinance No. 4508, August 12, 1859. “North Poplar street sewer district No. 3” was established by ordinance No. 4635, March 24, 1860, and is a subdivision of “West Main street sewer district.” Judgment was rendered for $139, bearing 15 per cent. interest per annum, and declared a lien on the property.

Spies, for appellant.

I. The act directing the assessment of the costs of the sewer, as a special tax against the lots in the district in proportion to the area, &c., is unconstitutional--contrary to § 19 of art. 13 of our State Constitution, which requires all taxation to be in proportion to the value of the property.

II. There is no ordinance authorizing the construction of this sewer.

1. Ordinance 4508 authorizes and directs sewers to be constructed in West First street sewer district, north of Poplar street; but this suit is for a sewer in “North Poplar street sewer district No. 3.”

2. Ordinance 4635 only authorized sewers to be constructed in North Poplar sewer district No. 3. on two conditions, viz.: First, that the property holders have, or shall petition therefor; or second, that the board of health shall recommend it for sanitary purposes.

Neither of which had been done.

III. The ordinances, even if they were supposed to authorize this sewer, are defective.

1. No. 4508 cannot authorize the construction of this sewer before either a majority of the property holders of the district shall have petitioned therefor, or before the same shall have been deemed necessary for sanitary or other purposes. See p. 168, § 14. Laws of Mo., 159--all of which must affirmatively appear of record. Judson v. City of Bridgeport, 25 Conn. 426; also dissenting opinion of C. J. Church and J. Storrs in Nichols v. Bridgeport, 23 Conn. 213, and p. 208. But instead of this appearing, the contrary was proved.

2. The ordinances must define the number of sewers to be constructed, their location, and, above all, their dimensions, (see same act of 1859,) which neither of said ordinances does.

IV. The tax bill is not prima facie evidence.

1. The law does not make it so; § 4, p. 383 of Acts 1859 and 1860 does not, for it is nothing but a blunder, referring to sections in a confused manner, and to words and lines not corresponding with the sections it refers to.

2. The work for which it purports to be was not done in the district stated in the tax bill, nor under contract for such work.

3. The pretended contract was made before this district was established, and this district, according to the ordinance, is no subdivision of the district for which the contract was made; and even if it were, it was not shown that such subdivision was made before the work was begun, as is required by said act of 1859, p. 168.

4. The tax bill is not good as prima facie evidence, for the act of January 16, 1860, is not relied on or plead in the petition.

V. At all events the tax bill is not more than prima facie evidence, and the same was fully disproved--Homer himself proving that he had no knowledge of the facts which the certificate implies. Hence the bill is to be regarded as one without a certificate, and as such no evidence, and there is no other proof of plaintiff's claim.

VI. Vokrath is the only person who could have made the certificate. The law contemplates that the person alone who has knowledge of the facts shall certify the same.

VII. The certificate is too general. It should state facts, not conclusions.

VIII. A thorough drainage of the district being a condition of the defendant's liability, both by said act of 1859 of the General Assembly of Missouri and said ordinances, proof that the sewer did not effect a thorough drainage should have been admitted.

IX. If the act of the General Assembly of Missouri of Jan. 16, 1860, (Laws of 1859 and 1860, p. 383,) were applied to this cause, such application would be retrospective; for the contract relied on was made Dec. 1, 1859, and said law went only into force April 17, 1860, and by contract the work was to be finished April 1, 1860. “It is a rule never to apply a statute retrospectively by mere construction. If not retrospective in its terms, or ambiguous in relation to its effects and application to past events, courts must consider it prospective merely.” (Jarvis v. Jarvis, 3 Edwards, 462, and cases there cited; Warren Man. Co. v. Æetna Ins. Co., 2 Paine, U. S. C. C. 501.) It is similar with ordinance 4635, which was passed March 24, 1860.

X. The judgment should not have been for the lien on the property, nor for 15 per cent., as the charge in the bill is one item, and some of the work, &c., done, not under Creamer's contract, nor done by him. (Edgar v. Salisbury, 17 Mo. 271.)

Mauro, for respondent.

I. This is an action on a tax bill issued by the City of St. Louis under the provisions of an act entitled “An act amendatory of and supplementary to the several acts incorporating the City of St. Louis.” approved March 14, 1859. (Acts of 1859, p. 165; Rev. Ord. of 1861, p. 213.) By the terms of that act the City of St. Louis has full authority to establish sewer districts at pleasure; to subdivide, enlarge or change the same by ordinance at any time before the construction of a sewer therein, and to cause sewers to be constructed therein whenever the common counsel shall see fit. (See § 14.)

II. By the terms of an act entitled “An [act] supplementary to the several acts incorporating the City of St. Louis,” approved Jan. 16, 1860, (see Rev. Ord. p. 228, § 4; Session Acts of 1860, p. 383, § 4.) section 14 of the act of March 14, 1859, is so amended that the special tax bill therein authorized to be issued is made prima facie evidence of the validity of the charge against the property, and the liability of the person named as the owner thereof.

The burden of proof, then, lies upon the defendant in this case to establish a valid defence to the action, which has not been done or attempted.

III. All other points in this case have been fully settled by the Supreme Court, in various decisions. (Lockwood v. City, 24 Mo. 20; Palmyra v. Morton, 25 Mo. 598; Egyptian Levee Co. v. Hardin, 27 Mo. 493; City of St. Joseph v. Anthony, 30 Mo. 539. See authorities referred to in Lockwood v. City, cited above.)HOLMES, Judge, delivered the opinion of the court.

This was a suit upon certified special tax bills for the cost of construction of a district sewer in the city of St. Louis, under the act of March 14, 1859. (Laws of 1858-9, p. 168, § 14.)

By this act the city has power by ordinance to establish a general system of sewers, to consist of public, district, and private sewers. District sewers are to be established within the limits of districts to be prescribed by ordinance, and the districts may...