Field v. Barber Asphalt Pav. Co.

• Decision Date: 15 July 1902
• Docket Number: 2,407.
• Citation: 117 F. 925
• Parties: FIELD v. BARBER ASPHALT PAV. CO.
• Court: U.S. District Court — Western District of Missouri

117 F. 925

FIELD v. BARBER ASPHALT PAV. CO.

No. 2,407.

United States Circuit Court, W.D. Missouri.

July 15, 1902

R. H Field, for complainant.

Scarritt & Scarritt, for defendant.

McPHERSON District Judge.

Not being able to announce my views in the presence of counsel, I reduce my conclusions to writing, that they may be advised and a decree accordingly prepared.

This case is one in equity to cancel certain alleged tax bills which defendant asserts are liens on plaintiff's real estate. Under the Missouri statutes, plaintiff, in or out of possession, by proceedings in equity can remove any wrongful cloud upon his title, and this court may follow such procedure. Complainant is the owner of certain lots facing on three streets in the city of Westport, state of Missouri which, December 2, 1897, on due proceedings, was merged in and became part of Kansas City. Excepting as to one matter to be presently noticed, this date is not material, because all things done which are now the subject of controversy were done prior to that date, and when Westport was an independent and separate municipality. The jurisdiction of this court is challenged on the ground that an amount less than $2,000 is in controversy. This contention arises on the following facts: The complainant, R. H. Field, owns certain lots, and has the legal title thereto, in front of which paving was done. The tax bills for paving in front of those lots amount to less than $2,000. But complainant has an equitable ownership, at least, in certain other lots. The title was taken in another as a mere convenience, and a declaration of trust executed in favor of plaintiff as to those lots. Why complainant is not liable for those taxes I do not understand, and why he is not interested in clearing those lots of an alleged illegal tax has not been made to appear to me. Adding those tax bills to the others, all held by defendant, and the jurisdictional sum is in controversy. The paving was done on three streets in Westport, under certain resolutions and ordinances of Westport and contracts between that city and the defendant company. The paving and work was done, and the tax bills made out and signed by the proper officer, prior to December 2, 1897, on which day, by a general election, the town became part of Kansas City. But the complainant insists that, because the tax bills had not then been registered in the books of the city, and, of course, not delivered, such registry and delivery could not subsequently be made. I am content to state that in my judgment the statute is directory, and in no event could the failure of the city clerk to register the tax bills defeat the defendant, and deprive it of compensation for labor and material, if otherwise it would be entitled to such compensation. Such technicalities ought not to defeat substantial rights.

And it is urged that the three streets, or some of them, had not been brought to the established grade, and that for grading the streets tax bills could not be issued as against the adjacent lots. And such seems to be the law. But the evidence shows that the matter of grading was but little more, if any, than what was required as part of the paving; that is, evening the surface, and putting it in proper condition. And, at all events, there was no extra expense or charge for the so-called grading. I therefore conclude that this contention is without merit.

Section 95 of the Laws of 1895 (statutes of Missouri), under which the proceedings in question were had, in substance provides that the resolution for paving can be defeated or nullified by a protest filed by a majority of the resident owners liable to be taxed on account of such improvement; and by implication, at least, the nonresident owner cannot protest. Complainant was a resident of Kansas City, and therefore a nonresident of Westport; and he urges that this was an unjust and arbitrary discrimination in favor of a resident and against him and other nonresident owners, for the reason that resident owners, by protest, could defeat the resolution whereas the law would not allow the city officials to receive or recognize the protest from him and other nonresident owners. It is a well-recognized rule, and familiar to all, that parts of a statute may be void, as being in conflict with the constitution, and the balance of the statute will stand and be enforced; and it is likewise recognized that courts will not decide questions that are not practical, or necessary for the determination of the case, or some phase of the case. If rights of parties have been trampled upon by reason of this statute, and a property right accorded to a resident of Westport which is denied to a resident of Kansas City, it would be readily seen that there would be great force in the argument of complainant's counsel that the provision in question is in conflict with the federal constitution. But I fail to find any fact of record in this case that calls for a determination of the question so elaborately argued. It seems to me that the conclusive answer is that complainant had some knowledge of what was going on and what was being done, and he made no remonstrance, and did not file or offer to file a protest, although it may be that he had no actual knowledge until too late to protest. But he had notice the same as residents, to wit, by publication. If the resolution or proceeding could be defeated by protest, and if the complainant had the same right to protest, not by the statute, but under the constitution, as a resident owner had, then why did he not protest, or offer to protest? And must he not do that or offer to do that which was required of a resident, before he can claim that he is denied equal protection. It seems clearly so to me, and a discussion of or deciding the question is wholly...