Gibson v. Zimmerman

• Decision Date: 06 June 1887
• Parties: WILLIAM E. GIBSON, Appellant, v. E. C. ZIMMERMAN, Respondent.
• Court: Kansas Court of Appeals

27 Mo.App. 90

WILLIAM E. GIBSON, Appellant, v. E. C. ZIMMERMAN, Respondent.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Buchanan Circuit Court, HON. JOS. P. GRUBB, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action to recover from the defendant three several tax bills for macadamizing, done by plaintiff in front of defendant's property, under an ordinance of the city of St. Joseph. The contractor received, from the city engineer the tax certificates, as in such case by the charter and ordinance provided.

The answer pleaded that the work was not done properly, in accordance with the requirements of the ordinances; that the property had not been divided into lots, as assumed by the several tax certificates issued by the city engineer; and that the grade on the street so improved had not been previously established by the city, as by its charter required.

The reply tendered the general issue, and then alleged that the grade on this street, where the said work was done, was reë stablished, by ordinance of said city, in February 1884, which was subsequent to doing the work and issuing the tax certificates, which grade is as the street was macadamized, etc. At the trial, the plaintiff read in evidence the ordinance of the city authorizing the said work to be done; and introduced proof that Frank Fanning was the acting city engineer; and then read in evidence the certificates of said engineer, in due form, showing that the work had been done accordingly by the plaintiff, as contractor, and the sums assessed against the property of defendant. Here the plaintiff rested. The defendant demurred to the evidence, which the court overruled.

The defendant, to sustain the issues on his part, introduced evidence tending to show that the work done did not, in some respects, come up to the requirements of the contract, and that no ordinance could be found, after search made establishing the grade of this street prior to passing the ordinance authorizing the work in question.

There was other evidence offered by defendant, as to other issues made in his answer, but, as they are not material to the determination of this appeal, they are not noticed.

The plaintiff, in rebuttal, offered evidence tending to show that all the ordinances hitherto passed by the city had not been recorded; and read in evidence an ordinance dated February 7 1884, establishing the grade on this street on a straight line with the macadam, as claimed by plaintiff. At the close of the evidence, the court gave an instruction directing the jury to find for the defendant. Thereupon, the plaintiff submitted to a non-suit.

To reverse the action of the circuit court, this appeal is prosecuted by plaintiff.

JAMES W. BOYD and B. R. VINEYARD, for the appellant.

I. To recover for street improvements, under the charter of St. Joseph, the contractor can look alone to the property abutting on the street improved. The charter prohibits the city from becoming liable, " in any manner whatever," for work of this character. Acts of 1865, p. 435; Kiley v. St. Joseph, 67 Mo. 491. The contractor being remediless, unless he can recover from the lot owners, only a substantial compliance with the requirements of the charter and ordinances need appear. St. Joseph v. Anthony, 30 Mo. 542; St. Louis v. DeNoue, 44 Mo. 139; Sheehan v. Owen, 82 Mo. 465. Under the charter, the certified bills make a prima facie case. In the language of the Supreme Court, construing that charter, " The bills make a prima facie case of the facts and liabilities stated in them, and present a valid claim till rebutted by countervailing evidence." Neenan v. Smith, 60 Mo. 294; Ess v. Bouton, 64 Mo. 105; Bu chanan v. Broadwell, 88 Mo. 36; City, etc., v. Armstrong, 38 Mo. 33; Acts 1865, sect. 5, p. 435.

II. If the establishing of the grade on Union street, before letting the contract for the work had been necessary as a condition precedent to plaintiff's right of recovery, there was no such proof by defendant on that point, as to overcome plaintiff's prima facie case. At any rate, whether the prima facie case has been destroyed, was a question for the jury and not the court. But there was nothing in the charter or ordinances in evidence requiring the establishment of a grade before letting a contract for street improvements, absolutely nothing. The power given in the charter (Acts 1868, sect. 6, p. 237) to the mayor and council, " to establish a general plan for the location and graduation of streets," did not require the establishment of grades on any street, before undertaking to macadamize it. The ruling of the court below was an arbitrary exercise of judicial power, without any law or reason to sustain it. If the establishment of a grade had been necessary, the ordinance for the improvement of Union street, from Frederick avenue to Nineteenth street, at which points the grade had long previously been established, and the surface of the ground between these points being on a straight line, amounted to a municipal adoption of this line as the grade. On this line, or grade, the work sued for was done.

III. The court usurped the province of the jury, and declared that plaintiff's prima facie right to recover was overthrown by defendant's evidence. This ruling of the court is a new departure in the civil practice in this state. The evidence on the part of the defendant, as to every defence attempted, is very weak and unsatisfactory. No one of his witnesses claims or pretends to have made a thorough search for the ordinance which defendant claims did not exist. In fact, no one of said witnesses pretends that he examined, even superficially, all the ordinance books of said city. No witness pretended to have examined at all the files in the register's office, to ascertain if the ordinance was there. If the witness had sworn to having made a thorough examination of all the books and files, still the question as to whether their evidence was sufficient to overcome plaintiff's prima facie case would have been a matter for the jury to pass on, under appropriate instructions. The certified tax bills make a prima facie case for plaintiff; it is not for the court to say whether defendant's evidence destroyed plaintiff's case; that is a question for the jury. In this case the jury would have been warranted, by the evidence, in finding that defendant's evidence was not sufficient to rebut plaintiff's case, and yet the court arbitrarily and absolutely ordered a verdict in favor of defendant. We protest against this new departure, this overturning of the well-established, fundamental principles of the law in this country. We object to the abolishment of the jury system by the circuit court.

EUGENE C. ZIMMERMAN, for the respondent.

I. Was it necessary that the grade of Union street should be established by an ordinance prior to the doing of the macadamizing? The charter of St. Joseph provides (sect. 49, p. 45) that the mayor and council shall have the power to establish a general plan and graduation of streets and public ways within the city, etc., but with the proviso that when any street has heretofore been located or fixed; or when the grade thereof has been heretofore fixed or established, and the same shall be thereafter changed by the city; any person owning real estate upon the street shall have the right " to sue and recover from said city all damages he may sustain by reason of such change or alteration."

II. Chapter twenty-second, page one hundred and eleven, of the general ordinances provides that all grades made on the grade maps and profiles of the city, or named in any ordinance thereof as the intersection of the two streets, shall have a direct reference to and shall designate the relative heights of the points where the centre line or axis of said two streets intersect. Chapter thirty-seven, page one hundred and fifty, section one, provides " That whenever the mayor and city council shall, by ordinance, direct any street, and so forth, to be prepared for the macadamizing and so forth, those portions above grade shall be excavated and those below grade shall be filled up, under the direction and supervision of the city engineer, until the desired grade shall be attained." The ordinance further provides that the grading of each block shall be fully completed before any macadamizing is laid on. Fowler v. City of St. Joseph, 37 Mo. 230; Richardson v. Hegdenfeldt, 46 Cal. 68; Craw ford v. Commissioners of Elk Co., 32 Kas. 555; Thompson v. City of Boonville, 61 Mo. 282; City to use v. Armstrong, 56 Mo. 298; Roland v. City of Gallatin, 75 Mo. 134; Stewart v. City of Clinton, 79 Mo. 603; Perkinson v. City of St. Louis, 4 Mo.App. 322; S. C., 53 Mo. 152; Leavenworth v. Rankin, 2 Kas. 357; Saxton v. Beach, 50 Mo. 488; Fanning v. Schammel, 9 P. 427; Kyle v. Malin, 8 Ind. 34; Brookville v. Turnpike Co., 8 Ind. 393; St. Louis v. Clemens, 43 Mo. 396; St. Louis v. Gleason, 89 Mo. 67; Bean v. Inhabitants of Hyde Park, 9 N. W. Rep., 638; Boone v. City of Utica, 2 Barb. 104; Fulton v. City of Lincoln, 2 N.W. 724; Irwin v. Divorce, 65 Mo. 625.

III. Was the passage of the ordinance set forth in plaintiff's reply, dated February 7, 1884, curative in its effect, or, in other words, did its passage, after the work was done, and after the certificate was delivered to the contractor, make legal that which otherwise would have been illegal, and enable the contractor to enforce a bill for macadamizing which, without the passage of such ordinance, would not have been collectible? We think not, and with confidence refer to the following authorities: Ruggles et al. v. Jacob &amp Bixler, 43 Mo. 353; Const. Mo. sect. 48-65; Newman v. City of Emporia, 32 Kan. 456; Saxton v. City of...