George C. Prendergast Construction Company v. Goldsmith

• Decision Date: 16 February 1918
• Citation: 201 S.W. 354,273 Mo. 184
• Parties: THE GEORGE C. PRENDERGAST CONSTRUCTION COMPANY v. DAVID GOLDSMITH et al., Appellants
• Court: Missouri Supreme Court

201 S.W. 354

273 Mo. 184

THE GEORGE C. PRENDERGAST CONSTRUCTION COMPANY v. DAVID GOLDSMITH et al., Appellants

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

David Goldsmith for appellants.

(1) Special findings under Section 1972, R. S. 1909, must be responsive to all the issues. Cochran v. Thomas, 131 Mo. 268; Fahy v. Grocer Co., 57 Mo.App. 76; Brant v. Robertson, 16 Mo. 129; Downing v Bourlier, 21 Mo. 149; Sisson v. Barrett, 2 N.Y 406; Clark v. Neumann, 56 Neb. 374; Phipps v. Harlan, 53 Cal. 87. (2) The findings of fact should be all the ultimate facts in issue, and not of evidenciary matters. Murdoch v. Finney, 21 Mo. 140; Sutter v. Street, 21 Mo. 157; Allison v. Darton, 24 Mo. 343; Powers v. United States, 119 F. 562, 56 C.C.A. 128. (3) The findings of fact made by the trial court in this cause are not responsive to the issues. (4) The findings of law made by the trial court in this cause are indeterminate and erroneous. (5) The finding, upon which the judgment of the trial court is based, relates solely to the motives of the Municipal Assembly of the city of St. Louis, and these motives are immaterial. Dreyfus v. Lonergan, 73 Mo.App. 345; Brown v. Cape Girardeau, 90 Mo. 383; Kansas City v. Hyde, 196 Mo. 507; Soon Hing v. Crowley, 113 U.S. 710; Kerfoot v. Chicago, 195 Ill. 232; 2 Dillon on Municipal Corporations (5 Ed.), p. 914, note 3; McQuillin on Municipal Corporations, sec. 378, pp. 831, 832; Potter v. McDowell, 31 Mo. 69; Reed v. Pelletier, 28 Mo. 178; Bump on Fraudulent Conveyances (4 Ed.), secs. 27, 243, 333 and 375, pp. 24, 282, 368 and 404. (6) The findings of fact made by the trial court, in connection with the undisputed facts, show conclusively that the ordinances, upon which the special tax bill in suit is based, are arbitrary; and this renders that tax bill invalid. Prior v. Construction Co., 179 Mo. 440; Heman v. Schulte, 166 Mo. 417; Heman v. Allen, 156 Mo. 550; State ex rel. v. Birch, 186 Mo. 219; Corrigan v. Gage, 68 Mo. 541; St. Louis v. Richardson, 76 Mo. 485; Masters v. Portland, 24 Ore. 161; Hanscom v. Omaha, 11 Neb. 43; Fraser v. Mulaney, 129 Wis. 385; Lawrence v. Grand Rapids, 166 Mich. 134; Trust Co. v. Chicago, 162 Ill. 509; Copcutt v. Yonkers, 31 N.Y.S. 659; Vandeventer v. Long Island City, 139 N.Y. 39; Denver v. Kennedy, 33 Colo. 81; Lenon v. Brodie, 81 Ark. 217; Beck v. Holland, 29 Mont. 234; State ex rel. v. District Court, 95 Minn. 71; Whitney v. Fawcett, Styles Rep., 13.

A. R. & Howard Taylor for respondent.

(1) The special tax bill sued on, re-issued, has the prima-facie proof of validity as if originally so issued. Galbraith v. Newton, 45 Mo.App. 312; Vieths v. Planet Co., 64 Mo.App. 207. (2) The special tax bill in suit is prima-facie evidence of the liability of appellants as owners to pay the bill. Charter of St. Louis, art. 6, sec. 25; Woerner's Revised Code of St. Louis. (3) Under the admissions of the answer, the work was done according to contract and accepted by the city. (4) The only issue presented by the answer, then, is, was the passage of the ordinances for the construction of the sewer and for the assessment district the result of fraud, wilful discrimination and intent to oppress the owners of land in the assessment district, by omitting to include Tower Grove Park in the assessment district, and under the rule of decision in this court, there being no evidence or even contention that the plaintiff was in any manner cognizant or privy to said alleged fraudulent action of the city and its officers. Such fact, if true, is no defense to this action. An objection to any evidence under the answer would have been properly sustained. Paving Co. v. Field, 188 Mo. 206; Jaicks v. Merrill, 201 Mo. 110; Warren v. Paving Co., 115 Mo. 580; Bank v. Woesten, 147 Mo. 483; Improvement Co. v. St. Louis, 257 Mo. 305. (5) In the absence of evidence of fraud, oppression or palpable injustice, the exercise of the discretion confided to the city to pass ordinances establishing sewers and sewer districts is conclusive and not subject to collateral attack. McGee v. Walsh, 249 Mo. 286; Heman v. Allen, 156 Mo. 543. If there was connection made with this sewer after the sewer was constructed and tax bill issued, it in no manner affects the validity of the tax bill. Heman v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 451. (6) An inspection of the court's finding of facts shows that every constituent fact involved in the controversy, as well as the final constitutive facts of the affirmative defense alleged in the answer, were found by the court with painstaking care. The findings of facts find all material facts in controversy relating to the feasibility of the drainage of the area of Tower Grove Park through the sewer in question and do find that it was feasible to drain a considerable part of such area through the sewer, but the court did not find and plainly could not find, that the whole of such area could be so drained, because the habit of water to seek the lower level is obstinate, and thus the area of at least 300 feet by 300 feet, being much lower than Kingshighway, could not be drained into this sewer. And the court does properly find and was bound under the evidence to find, that the evidence did not show that drainage by way of this sewer was the only or exclusive manner of draining this area of the park. The court, in its finding, passed upon each and every constitutive fact alleged in the answer as a ground for assailing the validity of the assessment as oppressive or fraudulent. This was a full compliance with the statute, the manifest object of which is that such essential facts are to be found in order that the appellate court can determine whether or not the conclusions of law made are warranted by the facts found.

ROY, C White, C., not sitting.

OPINION

ROY, C.

This is a suit to enforce the lien of a special tax bill of $ 1297.60 for the construction of sewers. Plaintiff had judgment for $ 1394.83, and defendants have appealed.

The property has a front of 486 feet 1 1/2 inches on the west side of Kingshighway Boulevard, with a depth of 171 feet, bounded north by Bischoff Avenue and south by Old Manchester Road. About a quarter of a mile south of defendant's land is Tower Grove Park, fronting west on the east side of said boulevard, and extending south 1477 feet to Arsenal Street. The entrance to the park is two hundred feet wide, the south side of the entrance being about eight hundred feet from the southwest corner of the park. The park drive from the entrance runs west about 300 feet before it divides. There is no further showing by the evidence as to the location of the park drives. There are gutters along the park drives, but the evidence does not show any other gutters in the park.

Edwin Jolly, city engineer of grades and surveys, a witness for defendants, stated that by reason of a depression in the southwest part of the park the surface water of the park flowed north about 600 feet to the north side of the park, and that the middle of such depression is about 200 feet from Kingshighway. Beyond that the park rises to the east. At another place in his testimony he said: "The head of this sag is right here at the south side of the park entrance." That part of the park north of the entrance and for a distance of 600 feet east has a fall of 18 feet west to Kingshighway. What if any northern slope it has is not shown except that Kingshighway has a very gradual slope to the north along the entire front of the park.

In 1904 the city established Manchester Road Joint Sewer District, and caused a joint sewer about a mile and a half long to be constructed in the northern and lower part of the district. That sewer is nine feet in diameter at its east end and half that diameter at its west end. It is five and a half feet in diameter on Bischoff Avenue where it passes along the north end of defendants' property. Opposite defendants' property across the boulevard is "Shaw School," and east of that are the extensive grounds of the Missouri Botanical Garden. The plat of that joint sewer district is before us, and a rough estimate shows that about eighty acres of the park and about a hundred and twenty-five acres of the Botanical Garden are in that joint district.

In 1905 the city established Manchester Road Sewer District Number Three, and provided for the construction of sewers therein. It is for that construction that the taxes herein are sued for. That district Number Three as shown by the plat lies on both sides of the boulevard. On the west side it extends from Arsenal Street to Bischoff Avenue, but on the east side the lands of the park and of the Botanical Garden are left out. All other tracts within about 670 feet of the boulevard and on the east thereof are in the district. Among the district sewers thus constructed is one in the boulevard from Arsenal Street to Bischoff Avenue. It is twenty-five inches in diameter at Arsenal Street, twenty-seven and a half inches in diameter at the park entrance and at the northwest corner of the park. It is four feet two inches in diameter in front of defendants' property, and empties into the joint district sewer at Bischoff Avenue. A sewer twenty-five inches in diameter was laid in Old Manchester Road from the sewer in the boulevard west along defendants' south boundary. A fountain and a hydrant are in the park near the entrance. Before the construction of the sewer the water from the fountain and hydrant and from the gutters in the park passed through a pipe under the boulevard into a gully on the west side. The water now flows into the sewer near the entrance. The evidence does not show when or by whom that connection was...