Doemker v. Richmond Heights
| Decision Date | 18 May 1929 |
| Docket Number | No. 27674.,27674. |
| Parties | THEODORE DOEMKER ET AL., Appellants, v. CITY OF RICHMOND HEIGHTS ET AL. |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. — Hon. G.A. Wurdeman, Judge.
AFFIRMED.
M.F. O'Brien and J.C. McAtee for appellants.
(1) The resolution and its publication are the foundation stones of all subsequent proceedings. Secs. 8510, 8524, R.S. 1919. Failure to comply strictly therewith renders all subsequent proceedings utterly void. Webb v. Strobach, 143 Mo. App. 459; Hinerman v. Wilhaus, 205 Mo. App. 364. A proceeding to compel the citizen to pay for improvements in front of his property is a proceeding in invitum, purely statutory, and therefore to be strictly construed; if the statutory requirements have not been rigidly followed and adhered to, then all proceedings thereunder are void. Webb v. Strobach, 143 Mo. App. 459; Stanton v. Thompson, 234 Mo. 7; McMeneny R.E. Co. v. Stillwell Co., 184 S.W. 467; Schulte v. Curry, 173 Mo. App. 578; Hartley v. Bryanton, 17 Fed. 873; Bigelow v. Chatterton, 51 Fed. 614; Cissell v. Puloski, 10 Fed. 891; Cohen v. Portland Lodge, 152 Fed. 357; Cohen v. Portland Lodge, 144 Fed. 267. And unless publication is for the required time the tax bills issued in payment for the work are void. Webster Groves v. McMahon, 233 S.W. 412; Thrasher v. Kirksville, 204 S.W. 804. (2) One of the principal objects of the resolution and its publication is to advise the property owner affected of what is contemplated by the proposed improvement so that they may have an opportunity to arrest the proceedings by a majority protest. Kirkwood v. Coleman, 103 Mo. App. 215; Schulte v. Curry, 173 Mo. App. 578; Leach v. Corgill, 60 Mo. 316; Fellows v. Dorsey, 171 Mo. App. 289; Brunswick ex rel. v. Bennecke, 289 Mo. 307. (3) Plaintiffs are entitled to the relief prayed for, for persons contracting with county courts or municipal corporations must be held to know the law and to know that contracts not entered into in compliance with statutory provisions are void. Hillside Securities Co. v. Minter, 254 S.W. 188; Rhodes v. Koch, 189 Mo. App. 371; Feurt v. Caster, 174 Mo. 289; State v. Kirchgraber, 186 Mo. 633. (4) There was no effort on the part of defendants to have the tax bills declared valid and existing liens on the property of plaintiffs, and the finding of the court is broader than the pleadings. Schneider v. Patton, 175 Mo. 684. (5) Even though the resolution of July 25, 1923, was a valid one and had been legally published, yet whatever proceedings had been started and had been attempted to have been started by said resolution were abandoned. City to Use of Colyer Bros. v. Wisdom, 127 App. 640.
Jourdan & English and Claud D. Hall for respondents.
(1) Special tax bills issued for street improvements are prima-facie valid. It is presumed that the improvements were properly made and that the property described is liable for the cost thereof, and, where the abutting lot owner does not wait to be sued on the tax bill but sues to cancel the same, he must point out the specific defect, if any, and the burden is upon him to show that the bill is invalid. R.S. 1919. sec. 8507; Huling v. Flag Stone Co., 87 Mo. App. 349; Exeter v. Kramer, 251 S.W. 918. As a corollary to this rule, special tax bills will not be canceled for mere irregularities not jurisdictional where there is substantial compliance with the charter provisions. State ex rel. v. Reynolds, 281 Mo. 1; Webb v. Strobach, 143 Mo. App. 459. (2) Laws and ordinances relating to street improvements and the issuance of special tax bills to pay therefor are to be reasonably construed, and the courts should not turn a municipal contractor out of court on mere technicalities where there has been substantial compliance by the municipal authorities with the laws authorizing the special tax. State ex rel. v. Reynolds, 281 Mo. 1; Gist v. Const. Co., 224 Mo. 369; St. Louis v. Kellman, 235 Mo. 687. (3) Where a resolution looking to a street improvement is duly passed and published the requisite number of times, jurisdiction becomes vested to make the improvement and levy a special tax. That jurisdiction does not become ousted by subsequent events. Laws 1923, p. 264; R.S. 1919, sec. 8524; Springfield v. Weaver 137 Mo. 650; Koch v. Norton, 261 S.W. 125; Webb v. Strobach, 143 Mo. App. 459; State ex rel. v. St. Louis County, 38 Mo. 402; State v. Jaeger, 157 Mo. App. 341; Tackett v. Vogler, 85 Mo. 480; Heman Const. Co. v. Lyon, 277 Mo. 628; Gist v. Const. Co., 224 Mo. 369: Pflueger v. Kinsey, 6 S.W. (2d) 604: 44 C.J. 273. (4) Statements in preambles of ordinances are surplusage. Jurisdiction of city officials to improve a street does not depend on the facts stated in the preamble of ordinances, and therefore if the city officials have in fact jurisdiction to enact the ordinances and make the improvements the statements in the preamble are immaterial. Bohle's Admr. v. Stannard, 7 Mo. App. 51; State ex rel. v. Smith, 302 Mo. 594; Fernald v. Gilman, 123 Fed. 797; Beatrice v. Edminson, 117 Fed. 427; D'Esterre v. New York, 104 Fed 605; Allen v. Davenport, 107 Iowa, 90; Lewis v. Port Angeles, 34 Pac. 914; Quincy v. Warfield, 25 Ill. 317. (5) To constitute an abandonment of proceedings for a street improvement regard must be had for the peculiar circumstances of the given case, and no abandonment of the original proceedings is present unless the city has gone to sleep over the matter. Jaicks v. Investment Co., 201 Mo. 111; Heman Const. Co. v. Lyon, 277 Mo. 638; California v. Kiesling, 180 S.W. 560. (6) Where the only error assigned is that the finding is wrong, the Supreme Court will not review the finding, especially in an equity case, where all the evidence is not before the court as shown on the face of appellants' abstract. Supreme Court Rule 7 Pfotenhauer v. Ridgeway, 307 Mo. 529; Patterson v. Patterson, 200 Mo. 335; Ford v. Laughlin, 285 Mo. 533; Mastin v. Ireland, 8 S.W. (2d) 900; State ex rel. v. Trimble, 8 S.W. (2d) 927.
This is a suit in equity to cancel certain tax bills issued against the respective properties of the plaintiffs for the improvement of Park Avenue, a public street in the city of Richmond Heights, which is a city of the fourth class and situated in St. Louis County. The aggregate amount in dispute is in excess of $7500. The ground alleged in the petition upon which it is asserted the tax bills are invalid, is want of jurisdiction by the city, to pass the ordinance for the making of the improvement, the letting of the contract, the acceptance of the work and assessment of the taxes. The plaintiffs aver that publication of the resolution declaring the work necessary to be done was had in only one issue of the newspaper, and that since the resolution was not published in accordance with the provisions of Section 8510 and Section 8524. Revised Statutes 1919, the subsequent proceedings were invalid. Section 8510 (Laws 1923, p. 265) requires such a resolution to be published "in some newspaper published in the city for seven consecutive insertions in a daily paper or two consecutive insertions in a weekly paper." Section 8524 provides that if there is no newspaper published in such city, the publication shall be "in the next nearest, newspaper published in the county in which such city is situated."
The evidence shows that on the 25th day of July, 1923, the council of the city of Richmond Heights adopted a resolution declaring the work of improvement of Park Avenue, necessary to be done. That resolution was published on July 27, 1923, and August 3, 1923, in the Maplewood News-Champion, a weekly newspaper published and printed in the city of Maplewood in St. Louis County. The city of Maplewood adjoins the city of Richmond Heights. There was no newspaper printed and published in Richmond Heights in the years 1923 and 1924. The council did not proceed immediately after the publication of that resolution to pass an ordinance for the making of the improvement. Certain conditions and incidents intervening between the publication and the passage of the ordinance, will be referred to later.
On February 6, 1924, the council of the city again adopted a resolution declaring the improvement of Park Avenue to be necessary. This resolution set forth the same improvement to be made as did the resolution of July 25, 1923. The resolution adopted February 6, 1924, was published only once, in the Maplewood Weekly News-Champion — its issue of February 22, 1924. Shortly after this publication by a single insertion, the council, on March 19, 1924, passed an ordinance for the making of the improvements, afterward advertised for bids, and later passed an ordinance for contracting with one Emmet Watson for doing the work; and in due course the contract was executed, the improvements were made, the work accepted, and assessments made against the properties of plaintiffs. The preamble to each of these ordinances referred to the resolution, as having been adopted on February 6, 1924, and did not make reference to the resolution adopted on July 25, 1923. It is admitted that the recitals made in the preambles of these ordinances, to the effect that the resolution adopted on February 6, 1924, was published by two consecutive insertions in said newspaper, were untrue. It is upon that ground, that the plaintiffs contend the city was without authority to proceed, as it did, to pass the subsequent ordinances, let the contract for the work, and issue the tax bills. The defendants contend that by the resolution adopted July 25, 1923, and its publication by two consecutive insertions in the Maplewood News-Champion, on July 27 and August 3, 1923, the city became vested with power to proceed, and that this power was not lost by delay or abandoned by adoption of the resolution of February 6, 1924, or by passage of the subsequent ordinances, which in their preambles, referred only to the resolution adopted February...
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