Frago v. City of Irondale, 43427

• Decision Date: 11 January 1954
• Docket Number: No. 1,No. 43427,43427,1
• Citation: 364 Mo. 500,263 S.W.2d 356
• Parties: FRAGO et al. v. CITY OF IRONDALE et al
• Court: Missouri Supreme Court

Page 356

263 S.W.2d 356

364 Mo. 500

FRAGO et al. v. CITY OF IRONDALE et al.

No. 43427.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1954.

Richeson & Carr, Potosi, for appellants.

Kerth, Thies & Schreiber, Clayton, for respondent-intervener Missouri Petroleum Products Co.

R. B. Manley, Farmington, for respondents City of Irondale, and Glenn Forinash, Mayor, and Earl Spier, City Clerk, of said city.

LOZIER, Commissioner.

Plaintiffs sued to cancel tax bills, totaling $10,202.75, issued by defendant city against plaintiffs' properties for street work. Plaintiffs have appealed from an adverse judgment. This court has jurisdiction as the record affirmatively shows that the 'amount in dispute, exclusive of costs,' exceeds $7,500. Art. V, Sec. 3, Const., 2 V.A.M.S., Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509.

Plaintiffs-appellants here contend that the ordinances under which the tax bills were issued unlawfully provided that the costs of the work be paid out of the city's general funds instead of by a special tax assessed against the adjoining properties; and (as the 'aye' and 'nay' votes of the members of the board of aldermen, on final passage of the ordinance, were not initially entered in the minutes as required by law) that the trial court erred in ordering a nunc pro tunc correction of the minutes to show the votes by 'ayes' and 'nays.'

The first statute involved is Section 7200 (all section references are to RSMo 1939 unless otherwise stated), later Section 88.687 RSMo 1949, V.A.M.S., repealed and substantially re-enacted in Section 88.665 RSMo 1949, V.A.M.S., H.B.No. 353, 1953 Laws, p. __. Section 7200 authorized the board of aldermen of a fourth-class city (as is defendant city), by ordinance, to 'cause' the city's streets 'to be sprinkled, oiled, repaired, surfaced and resurfaced and the cost thereof to be provided for and defrayed by a special tax to be assessed in favor of the city on the adjoining property fronting or bordering on the streets * * * where such sprinkling, oiling * * * is proposed to be done, in proportion that the linear feet of each lot * * * bears to the total number of linear feet of all property chargeable with the special tax aforesaid * * *. The above work shall be done by said city and an accurate account of the cost thereof kept by said city or shall be contracted for annually by the board of aldermen at such time and under such terms as shall be provided by ordinance, and the city shall be divided into convenient sprinkling, oiling * * * districts for the above purpose, and each district shall be let separately. The special tax bills spoken of shall be and become a lien on the property charged therewith from and after the commencing, oiling * * * of such street * * * under the provisions of an ordinance provided therefor, * * * and may be collected of and from the owner of the land in the name of and by the city * * * and they shall be issued and collected in the manner hereafter provided by ordinance: Provided, that in no case shall the cost of such spinkling, oiling * * * exceed sixty cents per front foot per annum upon the property abutting upon any street * * *.'

On September 6, 1949, the board of aldermen (by a series of ordinances the titles to which referred to Section 7200) created and fixed the boundaries of four districts, 'by authority of the provisions of Section 7200 * * *,' appointed an acting city engineer and directed him to prepare plans, specifications and estimates of cost for the work and submit same to the board, 'said improvement to be performed as may hereafter be ordered by' the board 'under authority of Section 7200 * * *.' In a second series of ordinances (the titles to which also referred to Section 7200), the engineer's plans, specifications and 'estimate of the cost for furnishing of the labor and materials and doing the work, and other costs which will be assessed against the lots * * *' in the particular district were approved; the mayor was authorized, upon acceptance of a proposal by the board for furnishing the materials, 'to purchase the necessary materials according to such proposal for the purpose of repairing, resurfacing and oiling of said street, all as provided in Section 7200 * * * and in accordance with the plans and specifications aforesaid'; and the engineer was directed to keep a record of the costs of the labor and materials furnished by the city and the printing, engineering, supervision and other expenses incurred by the city, and 'upon completion of said improvement to report said items of costs to the mayor and the board of aldermen * * *. Payment for the furnishing of the labor and materials, as well as the other costs and expenses of the city, shall be made by special tax to be assessed in favor of the city against all of the lots, tracts and parcels fronting or bordering on said public streets' in the particular district 'in proportion that the linear feet of each of said lots, tracts or parcels fronting or bordering on said public streets bear to the total number of linear feet of all the lots, tracts and parcels chargeable with the special tax for said improvements in said district; said special tax bills shall bear interest and become a lien on said lots, tracts and parcels as provided by Section 7200 * * *; and it is further ordered that no special tax bill shall be levied against any lot, tract or parcel within said district for an amount in excess of 60 cents per linear foot.'

As to each of the four districts, a third series of ordinances recited that the Missouri Petroleum Products Company (instant intervenor) had submitted the lowest and best proposal 'for the furnishing of materials for the repairing, resurfacing and oiling of public streets in' the particular district, 'in accordance with authorization by Ordinance No. * * * (relating to that district) approved the 6th day of September, 1949,' the mayor was authorized to accept such proposal 'for the furnishing of the aforesaid materials in the manner approved by * * * (the last mentioned ordinance) and to pay for the same out of the general funds of' the city.

Upon behalf of the city, the mayor executed the contract with intervenor. Intervenor furnished and applied the materials. (Apparently, intervenor has been paid $1,533.42. Plaintiffs-appellants state in their brief that the city 'did not have general funds which could be used to discharge the alleged indebtedness for materials provided by' intervenor.) As to each district, the city engineer certified to the board that the city had 'furnished all the labor and materials required' for the work in each district 'under and by virtue of Section 7200 * * * and authorized' by the particular September 6, 1949, ordinance, viz., 'labor and materials furnished by the city under contract,' a certain amount. In each instance, the amount so certified was that incurred by the city under its contract with intervenor. The report recited that 'no charge' was made for the items of engineering supervision, printing, legal services or 'collector's fee.'

On February 7, 1950, the board passed four ordinances levying the special assessment against the adjoining properties and directed the clerk to issue the tax bills n favor of the city in accordance with the computations made by the city engineer, whose respective reports, referring to Section 7200, were set forth in full in the ordinances, the February ordinances, and the titles thereto, referred to the applicable September ordinances.

Plaintiffs-appellants filed their suit on August 17, 1950, ten months after completion of the work and six months after the issuance of the tax bills. They do not contend that the work was not done according to plans and specifications. 'In such a situation a court of equity will not and should not annul the tax bills unless the proceedings of the city council were so defective as to render the tax bills void.' Cunningham v. City of Butler, Mo., 256 S.W.2d 767, 768.

We do not agree with plaintiffs-appellants that the September ordinances provided that the cost of the work was to be paid for out of the city's general fund and that the February ordinances (levying the special tax and authorizing the tax bills) 'was apparently an afterthought.' The September ordinances, by repeated express references to Section 7200, clearly show that, from the very beginning, the board--in creating the districts, in causing the streets to be oiled, in buying and furnishing the materials--provided that payment of all of the costs was ultimately to be made by tax bills as required by Section 7200.

Plaintiffs-appellants argue that the February...