Haag v. Ward
| Decision Date | 15 February 1905 |
| Citation | 85 S.W. 391,186 Mo. 325 |
| Parties | HAAG, Appellant, v. WARD, Receiver, et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
Reversed and remanded.
O. G Long and Scarritt, Griffith & Jones for appellant.
(1) The notices filed with the city treasurer of Kansas City answer the purpose sought by the charter to be attained and were a substantial compliance with its terms. (2) That part of the Kansas City charter invalidating judgment liens in the absence of filing a notice of suit as therein required is unconstitutional and void for the reason that it is in conflict with section 53, article 4 of the Constitution of Missouri, and sections 3713 and 3714, Revised Statutes 1899 as an attempt to regulate the practice of the jurisdiction of courts and changing the methods of enforcing judgments and of prescribing the effect of judicial sales of real estate; and section 16, article 9 of the Constitution, which provides that the charter and amendments thereto of such cities as Kansas City shall always be in harmony with and subject to the Constitution and laws of Missouri. Barber Asph. Pav Co. v. Ridge, 169 Mo. 387. The charter provision attempts to give a judgment of the circuit court a different force and effect than that prescribed by the general statutes of the State. R. S. 1899, secs. 3713 and 3714; Badgley v St. Louis, 149 Mo. 122. (3) Ordinance No. 8232 is a valid ordinance. It is not contemplated by our jurisprudence that the original authorizing ordinance shall state with exactness the details or extent of the improvement to be made. St. Joseph to use v. Owen, 110 Mo. 445; St. Joseph ex rel. v. Landis, 54 Mo.App. 324; Hitchcock v. Galveston, 96 U.S. 341. This ordinance is not criticised for not stating the precise width of the walk, the character or dimensions of the brick, but is directed to language which refers to the base or support for the walk where areas or vaults used by the owners of adjacent property occur. The very language of this section indicates that it was within the contemplation of the lawmakers that such support or arching should be constructed by the owners of the land who use areas or vaults, for it provides how they shall be built and then recites that "if constructed by the public contractor shall be estimated and paid for in special taxbills accordingly." There is no showing in this entire record that any such vaults or areas occurred under that part of the sidewalk embraced within the contract of the public contractor. At most the provision in reference to these supports is but a slight detail of a brick sidewalk which is wisely left to the discretion of the municipal officer having the work in charge. The substance of the improvement is a pressed brick sidewalk. The details as to the construction of its support, where unusual conditions occurred, were wisely left to the discretion of the municipal officers. Hydes v. Hoyes, 4 Bush. 464; Murray v. Tucker, 10 Bush. 240; Richardson v. Heydenfeldt, 46 Cal. 68; Stansbury v. White, 121 Cal. 433; Railroad v. Chicago, 144 Ill. 391.
Hugh C. Ward and R. H. Field for respondents.
(1) This court has no jurisdiction of the appeal and it should be transferred to the Kansas City Court of Appeals. A question which involves a construction of the Constitution and confers appellate jurisdiction upon this court necessarily means not merely that such a question shall be raised, but also that it shall be a real and not a fictitious constitutional question and raised by a party entitled to raise such question. Hamblin v. Western Land Co., 147 U.S. 532; Gano v. Railroad, 114 Iowa 727; Electric Co. v. Dow, 166 U.S. 489. (a) The lien of the special taxbills is wholly of statutory creation. This lien has no existence aside from its creation in and by section 18 of article 9 of the Kansas City charter. Jefferson City v. Whipple, 71 Mo. 519; Johnson v. Van Horn, 45 N. J. L. 137. (b) Neither the contractor for the work nor his assignee for the special taxbills has any right to question the validity or constitutionality of the condition or contingency in question, coupled inseparably, as it is, with the city charter creation of his alleged lien and right to enforce the same. The contractor or his assignee suing upon the special taxbills as a lien created by section 18 of article 9 of the charter, asserts the validity of every condition therein made necessary to the existence or continuance of such lien, including the provision in question, and is estopped to assert the contrary. Gano v. Railroad, 114 Iowa 713; Daniels v. Tierney, 102 U.S. 421; Railroad v. Brown, 17 Wall. 452; Railroad v. Osborne, 193 U.S. 29; Ins. Co. v. Perkins, 125 F. 502. (c) The provisions in section 18 of article 9 of the charter are so inseparably connected with and made dependent upon each other, that if the appellant is correct in his claim that the provision in question qualifying the continuance and duration of the lien of the special taxbills must fall as void, for conflict with the Constitution, the other provision of the same section creating the lien of the special taxbills must fall therewith as void, because to allow the provision creating the lien to remain standing and be enforced, unqualified by the provision in question, would be contrary to the intention of the makers of the Kansas City charter. It is sometimes permissible to reject the unauthorized and retain the authorized provisions of a legislative act, but not where, as here, the section of the legislative act was manifestly intended to operate and be effective as a whole and not in detached portions. City of Kansas v. Cook, 69 Mo. 127; State ex rel v. Wardell, 153 Mo. 323; Utsey v. Hiott, 30 S.C. 360; Dexter v. Boston, 176 Mass. 247; Connolly v. Sewer Pipe Co., 184 U.S. 565; Virginia Coupon Cases, 114 U.S. 304; Spraigue v. Thompson, 118 U.S. 94. If the provisions aforesaid of section 18 thus fall void, the alleged lien thereby created also necessarily falls as null and void. O'Brien v. Wheelock, 184 U.S. 450; State ex rel. v. Railroad, 74 Mo. 163; Brown v. Denver, 7 Col. 305; Anderson v. Hill, 54 Mich. 478; Ulman v. Mayor, 72 Md. 587; Stuart v. Palmer, 74 N.Y. 183; Deitz v. City, 91 Wis. 422; State v. Thomas, 138 Mo. 99. It is a statutory condition to any right of appeal that the appellant must be aggrieved by the decision and judgment appealed from. R. S. 1899, sec. 806. The appellant could not be aggrieved by the circuit court's refusal of his declarations of law to the effect that the charter provision in question was unconstitutional. For if the law be as declared in these refused declarations asked by appellant, no lien of the special taxbills could remain, because in that event the provision of this section of the charter making the taxbills a lien would also inevitably fall with the provision in question. (2) The notices of this suit, filed with the city treasurer, did not affirmatively or otherwise state when this suit was brought; hence they could not be held a compliance with the provision of the Kansas City charter. (3) The ordinance ordering the sidewalk in question was ultra vires and void, because it did not prescribe, but delegated to the city engineer to decide, the manner and extent of the work. Lundberg v. Chicago, 183 Ill. 572; Grant v. Barber, 135 Cal. 188; Hawthorne v. East Portland, 13 Ore. 271; State ex rel. v. Mayor, 38 N. J. L. 411; State v. Clark, 69 Conn. 371. It is a begging of the question to say "there is no showing in the entire record that any such vaults occurred under that part of the sidewalk embraced within the contract." Neither is there any showing that there were no such vaults or areas "under that part of the sidewalk within the contract." If the objection to section 2 could be obviated by testimony, the burden to do so was surely upon the appellant. This section of the ordinance making provision for areas or vaults, etc., is at least prima facie evidence of their presence in some part of the sidewalk ordered. The sidewalk was laid thirteen blocks, a distance of seven-eighths of a mile, on both sides of the street, lined with residences and business houses. But the validity of the ordinance is not to be judged by what was done, or necessary to be done, but it is so determined by what the ordinance authorized to be done thereunder. It is not required to defeat an unauthorized city ordinance to prove that the illegal thing therein authorized was done. Brown v. Denver, 7 Col. 305; Dexter v. Boston, 176 Mass. 247; Colon v. Lisk, 153 N.Y. 194; St. Louis v. Allen, 53 Mo. 55; Collins v. New Hampshire, 171 U.S. 34; Minnesota v. Barber, 136 U.S. 313; Mayor v. Reynolds, 20 Md. 1; Whitesides v. United States, 93 U.S. 257; Hawkins v. United States, 96 U.S. 691; King-Hill Brick Mfg. Co. v. Hamilton, 51 Mo.App. 120; Trenton v. Collier, 68 Mo.App. 483; Piedmont Paving Co. v. Allman, 136 Cal. 88; Inge v. Board of Public Works, 135 Ala. 200. (4) There is no principle of law on which any life or efficiency or right of action can be given to such void proceedings. Certainly no mere silence or inaction of an owner of lands as may be imagined during that time, could be made the basis of an estoppel to attack or resist the taxbills in question. Perkinson v. McGraff, 9 Mo.App. 26; Keane v. Klausman, 21 Mo.App. 485; Galbraith v. Newton, 20 Mo.App. 380; St. Joseph v. Dillon, 61 Mo.App. 317; State ex rel. v. Railroad, 74 Mo. 163; Verdin v. St. Louis, 131 Mo. 98; Wood v. Kansas City, 162 Mo. 389; Batty v. City of Hastings, 63 Neb. 31; Hawthorne v. East Portland, 13 Ore. 282; Smith v. Minto, 30 Ore. 351; Town of Clay City v. Bryson, 66 N.E. 498; Steickert v. East Saginaw, 22 Mich. 111; Winnebago F. & M. Co. v. Fond du Lac Co., 113 Wis. 72; Mulligan v. Smith, 59 Cal....
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