Creamer v. Allen

• Citation: 3 Mo.App. 545
• Parties: JAMES CREAMER, Respondent, v. NATHAN D. ALLEN, Appellant.
• Decision Date: 24 April 1877
• Court: Court of Appeal of Missouri (US)

3 Mo.App. 545

JAMES CREAMER, Respondent, v. NATHAN D. ALLEN, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1877

1. A special tax bill is merely prima - facie evidence, does not determine the rights of the parties, and any statements made therein are subject to rebuttal.

2. It is not the duty of the city engineer, under section 12, page 480, Session Acts of 1870, in making out a special tax bill for the construction of a sewer, to give upon the face of the bill a detailed description of the methods by which he proceeded, the process of computation, or to state what he did in the language of the statute, and negative its exceptions; but, if the computation or method of assessment is not according to the statute, the defendant may show it.

3. The amount assessed against a lot as a special tax for the construction of a sewer must be in that proportion to the whole charge which the area of the lot charged bears to the area of the whole sewer district.

APPEAL from St. Louis Circuit Court.

Affirmed.

S Holmes and C. H. Chapin, for appellant, cited: Carroll v Eaton, 2 Mo.App. 479; Warren v. Grand Haven, 30 Mich. 24; City of St. Louis to use v. Clemens, 49 Mo. 554; Sess. Acts 1870, pp. 478, 480, 481, secs. 1, 12, 14, 15; Skrainka v. Allen, 1 Mo.App. 387; Zoeller v Kellogg, St. Louis Court of Appeals.

Matthew O'Reilly, for respondent, cited: Haegele v. Mallinckrodt, 3 Mo.App. 329; Neenan v. Smith, 60 Mo. 292; Seibert v. Allen, 60 Mo. 486; Roger v. City of St. Charles, 54 Mo. 232.

OPINION

HAYDEN J.

This is an action upon two special tax bills for constructing a sewer on Compton Avenue by authority of an ordinance approved June 16, 1873, under which the city engineer of the city of St. Louis let out to the plaintiff the construction of district sewers in Compton Avenue Sewer District, No. 21 between Morgan Street and Franklin Avenue and Garrison and Channing Avenues. The petition is in the usual form, and the answer puts in issue its material allegations. There was a trial before the court below, sitting as a jury, and a finding for the plaintiff, and judgment for the amount claimed against the respective lots. At the trial the plaintiff offered in evidence the tax bills, certified by the city engineer, and marked as registered and countersigned by the comptroller of the city, to the admission of which the defendant made numerous objections. These were that, in the bills, the city engineer did not certify that as soon as the district sewers were fully completed he computed the cost thereof; or that he assessed the whole cost against all the lots of ground in the district, respectively; or that he made any assessment of the whole cost of the sewers; and that nothing is said in the tax bills about the exclusion of highways and improvements. The tax bills in this case show the number of the block, the description of the property, the number of feet front, the number of feet deep, the area of square feet, the total cost of the sewer, the rate per hundred square feet, and the amount. The certificate is to the effect that the work was done and materials furnished as described in the bill, by the contractor named; and that the rates and price are correctly stated; that the aggregate cost was thereby and by law charged and assessed as a special tax and lien upon the property described, in favor of the contractor; and that for the payment and discharge of the lien the said Allen, the owner of the property, is liable, etc. The provisions which direct how the city engineer shall proceed are contained in the 12th section of the act to revise the City Charter of St. Louis, which is to be found in Session Acts of 1870, page 480, section 12. This section provides, among other things, that, " as soon as a district sewer is fully completed, the city engineer shall compute the whole cost thereof, and shall assess it as a special tax against all the lots of ground in the district, respectively, without regard to improvements, and in proportion as their respective areas bear to the area of the whole district, exclusive of the public highways, and said officer shall make out a certified bill of such assessment against each lot in the district, in the name of the owner thereof, which shall be collected and paid in the manner hereinafter prescribed," etc. The statute thus directs how the engineer shall proceed and what he shall do; it nowhere states that there shall appear on the face of the tax bill a detailed description of the methods or processes by which he proceeded, or that he shall state what he did in the language of the statute, and negative its exceptions. The argument is that because the word " such" is used in referring to the assessment, and the word " " said" is employed to designate the tax bill, these words imply that everything should appear on the face of the tax bill that the statute has directed to be done in reference to the assessment. With as much reason might it be argued that, because the word " said" is used in the section to designate the officer, if the statute prescribed certain qualifications of the officer, these also should appear on the face of the tax bill. What was stated by this court in the case of Haegele v. Mallinckrodt (ante, p. 329), though that case arose under the Charter of 1867, is applicable to these objections. The dicta of the learned judge who delivered the opinion in Carroll v. Eaton, 2 Mo.App. 479, were there distinctly disapproved, and the difference commented upon between a paper which is made merely prima-facie evidence and a certificate which would determine the rights of parties. That difference is palpable; yet the arguments of the appellant as to the construction to be placed upon provisions of the act of 1870 almost entirely ignore it. The process of computation is not required to appear in the tax bill, but if the computation or method of assessment is not according to the statute the defendant is at liberty to show it. If the whole cost was not computed, or the property was not charged with its proper proportion according to the whole work, as provided by the statute, the defendant may show it,...