Haag v. Ward

• Decision Date: 22 December 1904
• Parties: HAAG v. WARD et al.
• Court: Missouri Supreme Court

85 S.W. 391

186 Mo. 325

HAAG v. WARD et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — SPECIAL ASSESSMENTS — CITY CHARTER — CONSTITUTIONALITY — ACTION ON TAX BILL — DEFENSES.

1. Where the protection of the Constitution was invoked in the trial court and denied, and proper exceptions saved thereto, a constitutional question was involved, so as to justify an appeal to the Supreme Court.

2. Kansas City Charter, art. 9, § 18, provides that every special tax bill shall be a lien on the lands on the date of the receipt to the board of public works therefor, which lien shall continue for two years, unless suit be brought to collect the same within two years, in which case the lien shall continue until the determination of the proceedings to collect, provided that every plaintiff shall, within 10 days after commencement of suit, file in the office of the city treasurer a statement showing the tax bill sued on, when and in what court, and against whom the suit is brought; that the city treasurer shall note on the record of the tax bill the substance of such statement; and that, if plaintiff fails to file such statement, the land described shall be free from the lien of any judgment in such suit. The proviso as to the filing of the statement first appeared in the charter of 1889, and public improvements are made in other parts of the state under statutes relative thereto, without any such provision. Held, that the proviso is not so interwoven with the other provisions but that it might be held unconstitutional without impairing the remainder of the section.

3. The proviso in regard to the statement, in so far as it requires the same to be filed, prescribes its contents, and requires the city treasurer to note the filing thereof, does not violate Const. art. 4, § 53, prohibiting the Legislature from enacting local or special laws creating, extending, or impairing liens, regulating the practice in the courts, or changing methods of enforcing judgments, or prescribing the effect of judicial sales of real estate.

4. Such portion of the proviso does not violate Rev. St. 1899, § 3713, providing that judgments and decrees rendered by any court of record shall be a lien on the real estate of the person against whom they are rendered, situate in the county for which the court is held.

5. Nor does it violate Rev. St. 1899, § 3714, providing that the lien of a judgment shall commence on the day of the rendition of the judgment, and shall continue for three years, subject to be revived as further provided.

6. Nor does it violate Const. art. 9, § 16, declaring that any city may frame a charter consistent with and subject to the Constitution and laws of the state.

7. In so far as the proviso undertakes to impose a penalty for a failure to file the statement, it is unconstitutional and void.

8. Where a statement was filed before the two-year lien had expired, and it stated that suit "has been brought," it was sufficient, though it did not state when.

9. Kansas City Charter, art. 9, § 2, vests in the common council the power to order sidewalk improvements, and requires the ordinance authorizing the work to state the extent and dimensions, materials, and manner of doing the work. Held, that a provision in an ordinance for the construction of a sidewalk providing that, where areas or vaults had not been roofed over, such arching as should be found necessary should be built by the contractor on plans and specifications to be furnished by the engineer, and the cost deemed a necessary part of the contract work, was illegal, since the council could not delegate such power to the city engineer.

10. Where an ordinance for the construction of a sidewalk was illegal in so far as it provided that, when areas or vaults had not been roofed over, the necessary arching should be built by the contractor on specifications furnished by the city engineer, and a tax bill issued under the ordinance recited that it was for constructing sidewalks, and said nothing about constructing arches, in an action on a tax bill the burden was on defendants to show that some part of the tax bill was invalid, as representing the cost of constructing arches.

11. In an action on a tax bill for an improvement, in the absence of a showing that a portion of the bill represented the cost of constructing arches, the invalidity of the provisions of the ordinance in regard to arches was no defense.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Suit by George Haag against Hugh C. Ward, as receiver, and others, to enforce special tax bills. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

O. G. Long and Scarritt, Griffith & Jones, for appellant. Hugh C. Ward and R. H. Field, for respondents.

MARSHALL, J.

This is a suit to enforce two certain special tax bills, aggregating $152.92, for the construction of a brick sidewalk on Nineteenth street, between Main street and Tracy avenue, in Kansas City, pursuant to Ordinance No. 8232 of that city, approved April 14, 1897. The defendants are Hugh C. Ward, who was appointed receiver of the property by the United States Circuit Court for the Western District of Missouri, and who is sued herein by leave of that court, and Julia Mastin and Thomas H. Mastin and Elizabeth, his wife, who claim to own the property. The suit was begun on September 21, 1899, before M. A. Pursley, a justice of the peace for the Seventh District, Kaw township, Jackson county, Mo. The summons was returnable October 20, 1899, and was duly served upon all of the defendants. The defendants made default, and judgment was rendered for the plaintiff, establishing the lien. Ward alone appealed from that judgment. In the circuit court the plaintiff filed an amended petition, which recited and set out the tax bills; their issuance to the contractor, and the assignment thereof to the plaintiff; the fact that Ward was receiver, and the leave of the federal court to sue him; the claim of the other defendants to the land — and prayed for a judgment in rem against the land, and that it be sold to satisfy the lien. The defendants filed no written pleading.

At the trial the plaintiff offered the tax bills in evidence, which, under section 18 of article 9 of the charter of Kansas City, were prima facie evidence of the facts therein recited, and also offered the assignment of the tax bills to the plaintiff, together with oral proof that the plaintiff had purchased the bills. The appointment of Ward as receiver, and the leave of the federal court to bring this suit, were then admitted by the parties. Thereupon the plaintiff rested.

The defendants then offered in evidence the ordinance under which the work was done, being numbered 8232. The first section of the ordinance authorized the construction of brick sidewalks on both sides of Nineteenth street from Main street to Tracy avenue (with certain exceptions), which was shown by the oral testimony to be 13 blocks in length, "according to specifications for first-class sidewalks, approved February 18, 1895, and on file in the office of said board." The principal objection in this case is as to section 2 of the ordinance, which is as follows: "Sec. 2. Where areas or vaults occur, which have not been covered or roofed over with suitable brick, concrete or other necessary arches, resting on masonry or metal supports, or by some other equally safe or durable construction, then such arching or curbing as is found necessary for the support of the walk ordered to be built shall be furnished and constructed in accordance with special plans and specifications for the same, to be furnished or approved by the city engineer. Such special construction may include the arching and covering over all of the area or vault space included between the curbing and street lines, and the making thereof shall be deemed a necessary part of the construction of the sidewalks by this ordinance ordered to be built, and, if constructed by the public contractor, shall be estimated and paid for in special tax bills accordingly." Section 5 of the ordinance provided that so much of said work as may not be done by the owners of the property liable to be charged with the cost thereof should be done by the contractor, and should be paid for by special tax bills. Section 6 permitted such owners to have the work done by private contract, but required them to get a copy of the specifications and a permit from the city engineer's office.

The defendant then offered in evidence two notices, which were alike, except as to the amount of the tax bill and the property affected, and one of which was as follows:

"Kansas City, Mo., September 20, 1899. To Hugh C. Ward, Receiver, Julia Mastin, Thomas H. Mastin and all others interested: Take notice that the undersigned, George Haag, is the owner of tax bill No. 1, issued under Ordinance 8232, against Lot 4, Block 32, Mastin's Subdivision, for the sum of $72.10, that he has brought suit to collect the same before M. A. Pursley, Justice of the Peace of Kaw Township, Jackson County, Missouri, and that the same will be heard before said justice on the 20th day of Oct. 1899, and that he has joined as defendants therein Hugh C. Ward, receiver, and Julia Mastin and Thomas H. Mastin. George Haag, By O. G. Long, His Atty."

On the back are the following indorsements:

"Vol. 13, page 444. Bill 1. Ord. 8232. Geo. Haag vs. Hugh C. Ward, Rec. et al. Notice filed Sept. 21st, '99. At 3:30 p. m. J. Scott Harrison, Jr., City Treasurer."

The defendants further showed that said notices were filed with the city treasurer on September 21, 1899 — on the same day that this suit was instituted — and immediately after the suit was begun.

This was all the evidence adduced in the case.

The plaintiff then asked the court to declare the law to be as follows:

"(1) The court declare the law to be that, on the pleadings and evidence, the...