City of Webb City ex rel. v. Aylor

• Decision Date: 06 May 1912
• Parties: CITY OF WEBB CITY ex rel., Appellant, v. J. W. AYLOR, Respondent
• Court: Missouri Court of Appeals

147 S.W. 214

163 Mo.App. 155

CITY OF WEBB CITY ex rel., Appellant, v. J. W. AYLOR, Respondent

Court of Appeals of Missouri, Springfield

May 6, 1912

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Geo. V Farris, H. W. Currey and Clarence S. Palmer for appellant.

(1) The case was clearly decided in favor of the defendant upon the ground that the engineer's estimates were not filed prior to the adoption of the respective resolutions for the work. This was error. The estimates may be filed at any time prior to the letting of the contract. R. S. 1899, sec. 5859; Kirksville v. Coleman, 103 Mo.App. 215; State ex rel. v. Kansas City, 134 S.W. 1011; State ex rel. v Gordon, 217 Mo. 103; Probert v. Garth, 155 Mo.App. 387. (2) The court found that the specifications were sufficiently definite to designate the materials and manner of doing the work, without the plans. The failure to file plans with the city clerk in such a case constitutes no defense. Bituminous Paving Co. v. McManus, 144 Mo.App. 607; McCoy v. Randall, 122 Mo. 24. (3) The streets were paved at the grades established by ordinances and there was no substantial change from the old grades. Bridewell v. Cockrell, 122 Mo.App. 196; Muff v Cameron, 134 Mo.App. 610; Gibson v. Zimmerman, 27 Mo.App. 90; Clapton v. Taylor, 49 Mo.App. 117. (4) Even after the contract was entered into the council had the right to make the slight change of grade on Allen street. St. Louis ex rel. v. Schoeneman, 52 Mo. 348; People ex rel. v. Church, 192 Ill. 302, 61 N.E. 496; Hastings v. Columbus, 42 Ohio 585; Webb v. Strobach, 143 Mo.App. 459; Moran v. Lindell, 52 Mo. 229; St. Louis v. Bressler, 56 Mo. 350; McCartan v. Trenton, 57 N.J.Eq. 571, 41 A. 832.

McReynolds & Halliburton for respondent.

(1) A citizen whose property is to be taken in payment of a special taxbill is entitled to his day in court and the law is imperative upon this point as it is in taking a default judgment without service of process. Cooley on Taxation (2 Ed.), 365, 656. (2) It is settled law that valid ordinances bind not only the inhabitants of the corporation, but also strangers or non-residents coming within its limits. 2 Dillon on Municipal Corporations (5 Ed.), p. 963; State ex rel. v. White, 162 Mo. 533; St. Louis v. DeLassus, 205 Mo. 578; State ex rel. v. Severance, 49 Mo. 401; St. Louis v. Lane, 110 Mo. 256. (3) All the steps required by law to confer jurisdiction to order improvements must be complied with. Eager in re, 46 N.Y. 150; Hughes v. Ries, 40 Cal. 252; Himmelman v. Danos, 35 Cal. 441; 1 Desty on Taxes, sec. 106, pp. 515, 521; Zottmon v. San Francisco, 20 Cal. 102 35 Cal. 669; Kyle v. Malin, 8 Ind. 37; Massing v. Ames, 37 Wis. 645; Pound v. Superintendent, 43 Wis. 63; Allen v. Galveston, 51 Tex. 302. (4) The resolution required to be published by the charter and ordinance No. 516, is for the purpose of acquiring jurisdiction of the city council over the taxpayer, to the end that the city may levy a special tax against the property abutting the proposed public improvement and in order to do this the resolution should give information to the taxpayer, first, as to the nature of the improvement proposed; second, the grade upon which the proposed improvement is to be made; third, the cost of the improvement. When this information is given the taxpayer, either by the resolution or by reference made in the resolution as to where this information can be had, then it is with the taxpayer to determine whether he shall remonstrate against the improvement or acquiesce in it and pay the taxes when levied against his property. Nevada to use v. Eddy, 123 Mo. 546; Wheeler v. Poplar Bluff, 149 Mo. 36; Kolkmeyer v. Jefferson City, 75 Mo.App. 683; DeSoto ex rel. v. Showman, 100 Mo.App. 323; Brady v. Rogers, 63 Mo.App. 222; Kirksville ex rel. v. Coleman, 103 Mo.App. 215; Boonville ex rel. v. Rogers, 125 Mo.App. 149; Coulter v. Brick Co., 131 Mo.App. 230; Poplar Bluff v. Bacon, 144 Mo.App. 481; Paving Co. v. O'Brien, 128 Mo.App. 267.

OPINION

COX, J.

Action to enforce collection of certain taxbills issued to relator Franks in payment for paving certain streets in the city of Webb City, which is a city of the third class. The defendant resisted collection on the ground that the taxbills were void. Trial by court, judgment in defendant's favor and plaintiff has appealed.

The objection urged against the validity of the taxbills is that the statute and the ordinances of the city were not complied with by the city council and for that reason the council did not acquire jurisdiction to make the contract for the work. The proceedings of the council may be summarized as follows: The council passed resolutions declaring it necessary to pave the streets in question. These resolutions were passed at different dates and each applied to a certain specified portion of the street. These were all published as required by the statute. No protests were filed. Estimates of the cost of each were then prepared and filed by the city engineer, bids were advertised for in the proper way and the contract for the work awarded to the relator Franks. The work was performed as the contract required and the taxbills in suit were issued. The other essential facts necessary to be considered in this case are conceded and are as follows: The first of the resolutions above referred to related to a portion of Allen street and was passed July 18, 1904. This resolution after declaring it to be necessary to pave Allen street with vitrified brick proceeds to particularize the manner of doing it as follows: "By sub-grading and paving at grade the same with the best quality of vitrified brick to the full width thereof; and the same shall be done according to the plans, specifications and estimates of the city engineer on file in the office of city clerk and general ordinance No. 517 of the city of Webb City. . . . The grade herein specified refers to the grade heretofore established for said street and the grading required to bring said street to said established grade is hereby declared necessary to be done. To pay for said improvement, a special assessment shall be made and special taxbills issued in accordance with ordinance No. 516 . . . and the council hereby declares that the said street shall be graded in all respects as aforesaid . . . and the cost thereof shall be included in the special assessment for paying for said paving and the taxbills to be issued therefor, the general revenue fund of the city, in the opinion of the council, not being in a condition to warrant an expenditure therefrom for that purpose." The other resolutions which were passed at later dates were in the same form and applied to other streets.

The objection of most weight against the validity of these taxbills is that no estimate of the cost of the improvement was filed by the city engineer until after the time allowed to the property owners within which to protest had expired. It is conceded that such an estimate was made and filed before the contract was entered into but it is insisted that the property owners were entitled to the benefit of this estimate of the cost to assist them in determining whether or not they would protest against the improvement being made, and that the making and filing of this estimate was for their benefit and therefore jurisdictional and since this information was not furnished them, the council could not legally proceed.

The statute in force at the time, as far as this question is concerned, was sections 5858 and 5859, Revised Statutes 1899, as amended in 1901, Session Acts 1901, page 63 et seq. Section 5859 provides "when the council shall deem it necessary to pave . . . the roadway of any street . . . for which a special tax is to be levied as herein provided, the council shall by resolution declare such work or improvement necessary to be done and cause such resolution to be published in some newspaper printed in the city for two consecutive insertions in a weekly paper or seven consecutive insertions in a daily paper and if the majority of the resident owners of the property liable to taxation therefor . . . shall not within ten days thereafter file with the clerk of the city their protest against such improvements then the council shall have power to cause a contract for said work to be let to the lowest and best bidder on plans and specifications filed therefor with the city clerk by the city engineer or other proper officer."

Section 5858 provides: "Eighth: Before the council shall make any contract for . . . paving . . . any street . . . an estimate of the cost thereof shall be made by the city engineer or other proper person . . . and no contract shall be entered into for any such work or improvement for a price exceeding such estimate." This estimate must be prepared and submitted to the council before the contract can be let by the council for the statute expressly so provides and all the authorities agree that a contract entered into without such estimate is void. [City of De Soto ex rel. v. Showman, 100 Mo.App. 323, 73 S.W. 257; City of Kirksville ex rel. v. Coleman, 103 Mo.App. 215, 77 S.W. 120; City of Boonville ex rel. v. Rogers, 125 Mo.App. 142, 101 S.W. 1120.]

The statute does not provide either expressly or by implication that the engineer's estimate of the cost of the improvement is to be made and filed for the inspection or benefit of the property owner nor is there any provision for giving notice to him of this estimate. The only provision for notice to the property owner is found in the requirement for publication of the resolution declaring the improvement necessary. It is clear therefore that if we confine ourselves to the statute,...