Dollar Sav. Bank v. Ridge

• Decision Date: 02 June 1904
• Parties: DOLLAR SAV. BANK v. RIDGE et al.
• Court: Missouri Supreme Court

82 S.W. 56

183 Mo. 506

DOLLAR SAV. BANK v. RIDGE et al.

Supreme Court of Missouri, Division No. 2.

June 2, 1904.

MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — SPECIAL ASSESSMENT — SPECIAL SESSION OF COUNCIL — PROCLAMATION OF MAYOR — ORDINANCES — TAX BILL — ISSUANCE — TIME — BURDEN OF PROOF.

1. In an action to enforce the lien of a tax bill for a municipal improvement, the burden of showing that the ordinance providing for the making of the improvement was not legally enacted was on defendant.

2. Where, in a suit to enforce the lien of a special tax bill for a municipal improvement, the issue was whether an ordinance providing for the publishing of a proclamation of the mayor calling a special session of the city council had existed prior to the date when such an ordinance was passed, the fact of the passage of such ordinance did not establish the fact that no such ordinance was in existence prior to that time.

3. In a suit to enforce the lien of a special tax bill for a municipal improvement, the issue was whether there had been in existence an ordinance providing for the publication of proclamations of the mayor, calling special sessions of the city council, such special sessions so called being authorized by the charter; and a witness was asked whether there was any ordinance with regard to calling special sessions by proclamation, to which he responded that he knew of none. Held, that such question and answer did not show the absence of an ordinance providing for publication of proclamations, but merely meant that the witness knew of no ordinance providing for the calling of special sessions.

4. Where a city charter required the board of public works to make a computation of the cost of the construction of a public improvement, and apportion the cost thereof, in an action to enforce the lien of a tax bill for an improvement the question whether the board of works computed the cost, etc., was one of fact.

5. Where a city charter provided that a tax bill for a public improvement should be issued within 20 days from the completion and acceptance of the work, and provided that a failure to issue within such time should not affect the validity thereof, and the charter also required the board of public works to compute the cost of a public improvement, and apportion the same, and a tax bill was issued in due time after the completion of an improvement, and protracted litigation followed, in which it was decided that the tax bill was void because the board had not apportioned the cost, and the board subsequently apportioned the cost and issued a second tax bill, the fact that it was not issued until nearly five years after the completion of the improvement was no defense.

6. A city charter required the board of public works to establish a system of sewers for the entire city, and required the approval of the board of public works to be indorsed on the ordinance providing for the improvement, and that the sewer and sewer district should conform to the system established. Held, that where an ordinance provided for the construction of a district sewer in and for the district therein described, and attached thereto was a certificate of the board that the sewer proposed to be established conformed to the system of sewers established by the board of public works, the certificate was sufficient.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Suit by the Dollar Savings Bank against Thomas S. Ridge and others. From a judgment in favor of plaintiff, defendants appealed. Transferred from the Kansas City Court of Appeals. Affirmed.

James G. Smart and Peak, Yeager & Strother, for appellants. E. L. Scarritt, Clarence S. Palmer, and R. J. Ingraham, for respondent.

FOX, J.

This suit was brought July 1, 1896, in the circuit court of Jackson county Mo., at Kansas City, to enforce the lien of a special tax bill against defendants' land, issued in favor of Patrick Lyons, May 28, 1895, for the construction of a district sewer in Sewer District No. 151. The defenses relied on to this action were: (1) That the ordinance under which the work was done was passed by the common council at what were called "special sessions," and that those sessions were not legally convened, because at the time they were held there was no manner provided by ordinance for publishing the mayor's proclamation convening special sessions of the council, as required by the city charter. (2) That the mayor did not state, in his messages to the council at the so-called special sessions at which this ordinance was passed, that the council was convened to act upon such ordinance, as required by the city charter. (3) That the board of public works did not compute the cost of the work, and did not apportion it, as required by the city charter. (4) That the ordinance did not, prior to its passage, have indorsed on it a certificate in writing of the board of public works that the sewer district established by it conformed to the system of sewers established by said board, as required by the city charter. (5) That the work was completed on August 18, 1890, and an estimate and apportionment of the cost of the work was made by the then superintendent of construction, assistant city engineer, and city engineer, and that at that time the board of public works was composed of certain named persons; that when the new bill was issued there was a complete change in the personnel of the city engineer's office and board of public works; and that the latter did not compute the cost of the work, but merely used the old estimate made in 1890. (6) That the board of public works, as constituted in 1895, had no power or authority to issue the new bill; there having been no computation of the cost of the work or apportionment of it by the board of 1890 when the work was done. (7) That the new bill was issued and this suit is prosecuted under the provisions of the city charter as the same was attempted to be amended at the special election held on February 27, 1892, under Ordinance No. 3884, and that such ordinance was void, because it was passed at illegal meetings of the common council, and that said amendments were therefore not adopted as required by the Constitution, and that therefore the tax bill is void.

Opinion.

It will be observed that this is practically the second appeal in this cause; the only difference being that this action is predicated upon a tax bill issued by the board of public works of Kansas City in lieu of the one declared void in Bank v. Ridge, 62 Mo. App. 324. However, the parties and the origin of the litigation are the same. This appeal was first lodged in the Kansas City Court of Appeals, and upon application of defendant this court, by its peremptory writ of mandamus, ordered the cause transferred to this court, for the reason that from the petition, return, and plea to the return, a constitutional question was involved, and the Court of Appeals was without jurisdiction, under the provisions of the Constitution, to hear and determine such appeal. State ex rel. v. Smith et al., 150 Mo. 75, 51 S. W. 713.

The learned judge, in writing the opinion in this cause prior to its transfer to this court, referred to the former decisions of that court of Forry v. Ridge, 56 Mo. App. 615; McQuiddy v. Vineyard, 60 Mo. App. 610; Bank v. Ridge, 62 Mo. App. 324, and then says: "Counsel for defendants conceded at the argument that his object in making the point on the Constitution was for the purpose of ousting this court of appellate jurisdiction, that the case might be heard in the Supreme Court, where it was hoped and believed that the cases just referred to would be overruled." It is apparent that the concession made by learned counsel for appellant in the argument before the Court of Appeals was the true one; that the only purpose was to oust the jurisdiction of the Court of Appeals, with the view of insisting in this court that the cases mentioned should no longer be regarded as the law upon the subjects embraced in them.

Defendant cannot complain that the questions involved in this case have not been decided by the Court of Appeals, and that he is seeking an expression for the first time of an appellate court upon the proposition involved, for it is clear that the controverted propositions in this cause have had the careful attention of that court; hence this appeal must be predicated upon the theory of seeking additional light upon the subject. We confess that it is a worthy ambition of counsel for defendant to seek the correct interpretation of the law upon the important subjects involved, and it must be conceded that the question before us is presented in an able and logical manner — in fact, in just such a way that the proposition confronting us is narrowed down to the correctness or incorrectness of the conclusions reached by the Court of Appeals in the cases heretofore mentioned.

Upon the first contention in this cause, "that Ordinance No. 1801, which authorized the performance and construction of the work, for which the tax bill was issued, was passed by the common council at a special session illegally convened," the Kansas City Court of Appeals, in Forry v. Ridge, supra, had in judgment the identical question presented in this contention. The same charter provision was before the court for consideration. In a clear, able, and exhaustive opinion, that court sustained the contention of appellant in this case; but, with equal clearness, the court upholds the legality of the ordinance on another ground. In reaching the conclusion, it says: "Were it not, then, for other momentous considerations, we should feel bound to declare the special session of the Kansas City council held on February 10, 1890, to be illegal and the ordinance then passed, providing for this sidewalk, likewise invalid. However, since the city officers, the public lawyers, and judiciary have, in the practice of several years, acted upon a different...