Heman Construction Co. v. Loevy

• Decision Date: 10 February 1904
• Citation: 78 S.W. 613,179 Mo. 455
• Parties: HEMAN CONSTRUCTION COMPANY v. LOEVY, Appellant
• Court: Missouri Supreme Court

78 S.W. 613

179 Mo. 455

HEMAN CONSTRUCTION COMPANY v. LOEVY, Appellant

Supreme Court of Missouri, First Division

February 10, 1904

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Modified and affirmed.

H. A Loevy pro se.

(1) Ordinance 15,785 is void because (a) it does not prescribe the width of the sidewalks provided for, nor (b) the size kind or quality of the brick to be used, which can be fixed only by ordinance and not delegated to an officer nor the contractor. Charter, art. 6, sec. 15; Welty on Assessments, sec. 283; Elliot on Streets, p. 381. (2) The contract is void because it does not conform to the ordinance; it fails to require construction of sidewalk ordained, and therefore the tax bill is void. Cooley, Taxation, p. 656 and note 3; 2 Dill. Mun. Corp., sec. 800. (3) The president did not personally compute, levy or assess the cost of the work as a basis for a legal assessment but illegally delegated doing thereof. Kansas City v. Railroad, 81 Mo. 292; Endlich, Stats., 352; Sutherland, Stats., 405; 19 Am. and Eng. Ency. Law, 456, 463; 1 Beach, Pub. Corp., p. 191. (4) The work contracted for was not completed for one and one-half months after the time provided; and no deduction of penalty was made, wherefore the bill is void. The burden is on contractor to show that delay is reasonable, not on owner to show it was not. (5) The tax bill is void because it was issued before all the work ordered by the ordinance was done, namely, before sidewalks were laid. A tax bill can not be issued for part of the work ordained. Welty on Assessments, sec. 293; Cooley, Tax., p. 656; Cole v. Skrainka, 37 Mo.App. 423; s. c., 105 Mo. 308; Galbreath v. Newton, 30 Mo.App. 393. (6) The judgment is erroneous, being in part a personal judgment against the owner and surety on his appeal bond.

Hickman P. Rodgers for respondent.

(1) The tax bill made a prima facie case for plaintiff, and it devolved upon defendant (after the bill was put in evidence) to show some valid objection to its presumptive force. State ex rel. v. Mastin, 103 Mo. 508; Wolfort v. St. Louis, 115 Mo. 139; Moberly v. Hogan, 131 Mo. 19. (2) A valid special tax bill for work actually done may be issued in lieu of a void one, and when so issued is prima facie evidence. Eyermann v. Blakesley, 13 Mo.App. 407; Riley v. Stewart, 50 Mo.App. 594. (3) The work required by an ordinance for the construction of a street in the city of St. Louis may be subdivided and sub-let in parts to different persons. Eyerman v. Blakesley, 13 Mo.App. 407; Heman Const. Co. v. Loevy, 64 Mo.App. 430. (4) It is not every irregularity or omission that goes to the substance of an ordinance for local improvement. Sheehan v. Gleason, 46 Mo. 100; Cole v. Skrainka, 105 Mo. 303. (5) The form of the judgment may be corrected by mandate of this court, without reversal. Moberly v. Hogan, 131 Mo. 19.

OPINION

MARSHALL, J.

This is an action to enforce a special tax bill for $ 127.35, against parts of lots 29 and 28, in City Block No. 4571, in the city of St. Louis, owned by the defendant, issued for the improvement of Morgan street between Sarah street and Newstead avenue, pursuant to ordinance number 15,785, approved August 21, 1890, under contract No. 2748. The case is here upon a short transcript. The abstract of the record does not set out the pleadings or their substance. It speaks of a petition that was filed in a "justice's court," and quotes one allegation therefrom, but it does not show whether an answer was filed or not. The character of the defense interposed in the circuit court can only be ascertained by reference to the objections that were made upon the trial and to the instructions asked.

At the beginning of the trial the defendant objected to the introduction of any evidence upon two grounds: first, "that the tax bill sued on does not show any levy and assessment on its face; and, second, objections raising constitutional questions decided since the trial adversely to contention of appellant." The court overruled the objections and defendant excepted. What those constitutional questions were is not stated in the abstract of the record, but it appears from the files in the case that the case was appealed to the St. Louis Court of Appeals, and that the appellant filed a motion in that court to transfer the case to this court because a constitutional question is involved, and that respondent's attorney conceded, in writing, endorsed on the motion, that a constitutional question was raised, to-wit: "the validity of special assessments for street improvements under the charter of St. Louis," and that the Court of Appeals ordered the case transferred to this court. In this way the jurisdiction of this court in this case is ascertained.

The case made is this:

August Heman testified that he is the president of the plaintiff company. He testified to the signatures of the president of the Board of Public Improvements and of the Comptroller on the tax bill. On cross-examination he said that the plaintiff is the contracting party with the city, in contract number 2748, dated October 4, 1890, and did the work called for by that contract; that the defendant's property lies in the second granitoid district of St. Louis; that the work mentioned in this tax bill was begun about the middle of April, 1891, but he did not remember at what time it was completed; that plaintiff did not lay any brick sidewalks under contract 2748 or under ordinance 15,785, and did not at any time lay any brick sidewalks in front of the defendant's property; that there is a granitoid sidewalk in front of defendant's property; that after plaintiff finished the work under its contract, it was inspected and accepted by the city, and a special tax bill was issued therefor; that after plaintiff's suit on that tax bill was dismissed, that tax bill was cancelled and a new tax bill was issued, being the special tax bill sued on in this case. The plaintiff then offered the special tax bill in evidence. The defendant objected thereto on the ground that the bill does not on its face contain any levy or assessment by the president of the Board of Public Improvements as required by the city charter. The objection was overruled, the defendant excepted and the tax bill was read in evidence. The tax bill shows that the total cost of the work done under the contract was $ 19,328.65; that the total frontage taxed was 4932.57 feet; that the rate per front foot was $ 3,918.58; that the front of defendant's property taxed was 32.50 feet, and that the amount charged against the defendant's property was $ 127.35. The certificate of the president of the Board of Public Improvements is that the rates, prices and amount are correct; that the person named as owner is liable for the bill; that the work was done and the materials furnished by the contractor, and that the special tax assessed against defendant's property does not amount to twenty-five per cent of the assessed value of the property.

Thereupon the plaintiff rested. The defendant demurred to the evidence, the court overruled the demurrer and the defendant excepted.

To sustain his case the defendant adduced the following evidence: He proved by Charles Varrelman, assistant street commissioner, that the plaintiff was given notice to begin the work on April 14, 1891, and he supposed it began about one week thereafter, and that ordinarily the entire work is finished about two weeks before it is measured. J. H. Scott, an inspector in the street department, testified that he inspected the work every day; that on August 18, 1891, he reported to the department that he had inspected the work and found it to be in accordance with the contract, and that it was ready for measurement; that it takes ten days to two weeks as a rule to measure work after it is accepted; that plaintiff did not lay any brick sidewalks under his contract. The defendant then offered in evidence the final measurement of the work, but the date thereof is not stated in the abstract. The defendant then offered in evidence ordinance number 15785, the first, second and fourth sections of which are the only sections that are material to the determination of this case, and they are as follows:

"Section 1. The Board of Public Improvements is hereby authorized and directed to cause Morgan street between Sarah street and Newstead avenue to be graded, curbed, guttered, a Telford pavement, with a binding material and top dressing, laid on the roadway, the crosswalks and the sidewalks to be constructed, and all proper connections and intersections with other streets and alleys to be made.

"Sec. 2. The curbing, guttering, crosswalks and Telford pavement shall be of limestone, the binding material shall be of sand, and a top dressing of gravel shall be used to cover the surface of the roadway. The material for the sidewalks shall be 'paving brick.' The lateral and cross gutters, the crosswalks and the sidewalks shall be laid on a bed of clean, coarse sand.

"Sec. 4. The cost of curbing, guttering Telford pavement, binding material, top-dressing, rolling, sidewalk paving, and all proper connections and intersections required, shall be charged as a lien upon the adjoining property fronting or bordering on the improvements herein provided for, and shall be paid by the owners thereof, except as hereinafter provided. When the work under any one contract is completed, the president of the Board of Public Improvements shall compute the cost thereof, and levy and assess the same as a special tax against each lot of ground chargeable therewith, in the names of the owners thereof respectively, in the proportion that the linear feet of each lot fronting or bordering on said improvement bears to the total...