Heman v. Allen

• Decision Date: 04 June 1900
• Court: Missouri Supreme Court
• Parties: HEMAN v. ALLEN et al.<SMALL><SUP>*</SUP></SMALL>

57 S.W. 559

156 Mo. 534

HEMAN v. ALLEN et al.^*

Supreme Court of Missouri.

June 4, 1900.

PLEADING — DEFECTS CURED BY JUDGMENT — EVIDENCE — MUNICIPAL CORPORATION — SEWERS — CONSTITUTIONAL LAW — CITY ORDINANCE — NOTICE.

1. Rev. St. 1899, § 672, enacts that no judgment shall be reversed or affected for omitting any allegation, without proving which the triors of the issue ought not to have given such a judgment. A petition, not demurred to, to enforce a special tax bill for the construction of a private sewer, was defective, in failing to allege that the board of public improvements made the assessment of the entire cost of the construction of the sewer against the property in the district, and in alleging, instead thereof, "that the president of said board computed the cost thereof." The tax bill was put in evidence without objection, showing that the board of public improvements assessed the cost of the sewer of the district, as required by the St. Louis city charter. Held, that the defect is cured by a judgment enforcing the lien.

2. The objection to the testimony of the witness as to signatures to a special tax bill in suit is not an objection to the admission in evidence of the tax bill itself.

3. Under St. Louis City Charter, art. 6, § 22, authorizing the construction of district sewers whenever the board of public improvements shall recommend it as necessary for sanitary purposes, the fact that the construction of the sewer was for sanitary purposes does not make it a public sewer.

4. The fact that a district sewer is eight feet wide is not ground for objection to a benefit assessment to pay for its construction on the ground that it is a public sewer, since, under St. Louis City Charter, art. 6, § 22, the board of public improvements is the sole judge of its dimensions, and its acts are not subject to collateral attack.

5. Under St. Louis City Charter, art. 6, § 22, enacting that all district sewers shall be constructed with "all requisite laterals, inlets, and appurtenances," the fact that a sewer has lateral connections, of which it is a main stem, does not make it a public sewer.

6. The fact that several acres of land not included in the original sewer district have subsequently been drained into the sewer does not affect the liabilities of persons assessed for the construction of the sewer, where their drainage connections with the sewer were made since the sewer district was established, the building of the sewer ordered, the work done, and the tax bill sued on issued for the work.

7. The action of the city authorities of St. Louis in establishing a district sewer as such, under section 22 of article 6 of the city charter, is within their exclusive power, and will not be disturbed by the courts, in the absence of fraud.

8. St. Louis City Charter, art. 6, § 22, enacting that when a district sewer is completed the whole cost shall be assessed as a special tax against the lots of ground in the district, respectively, without regard to improvements, in proportion which their respective areas bear to the areas of the whole district, is not unconstitutional, as a deprivation of property without due process of law.

9. Notice of the passage of a St. Louis city ordinance establishing a district sewer, or of the assessment of the costs of such sewer, before issuing a special tax bill therefor, is not necessary.

In banc. Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Action by August Heman against Nathan D. Allen and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Grover & Grover, G. B. Webster, and Julian Laughlin, for appellants. H. P. Rodgers, David Goldsmith, and Collins, Jamison & Chappell, for respondent.

BURGESS, J.

This is a suit upon a special tax bill issued by the president of the board of public improvements against the property of defendants for the sum of $49.04, for its proportionate part of the cost of constructing a district sewer in Vandeventer avenue sewer district, No. 1, in the city of St. Louis. The answer sets up defenses which are equitable in their character, and then, by way of cross bill, asks for a decree canceling and annulling the tax bill and lien. The trial resulted in a judgment for plaintiff for the amount of his claim, and adjudged and decreed it to be a first lien against the property described in the petition. After unsuccessful motions for a new trial and in arrest, defendants appeal.

Objection is taken to the petition upon the ground that it does not state a cause of action, in that it does not allege that the board of public improvements made the assessment of the entire cost of the construction against the property in the sewer district, but alleges that the president of said board computed the cost thereof, and levied and assessed the same as a special tax. Under section 22 of article 6 of the charter of the city of St. Louis, before a lien can attach to property in a taxing district for the cost of the construction of sewers, the board of public improvements must make an assessment of the entire cost of construction against the property liable for the cost of construction. The tax bill, which was put in evidence, shows that the board of public improvements did assess the cost of the sewers of said district, and, as no objection was taken to the petition by demurrer, the defect was cured by the judgment. Section 672, Rev. St. 1899, provides that no judgment, after trial, shall be reversed, impaired, or in any way affected, for omitting any allegation or averment, without proving which the triors of the issue ought not to have given such a judgment; and it is clear that the court ought not to have given the judgment that it did give, in the absence of proof of the assessment of the entire cost of the sewer by said board, so that this defect in the petition is now unavailable to defendant. But defendants say that, as the petition does not state a cause of action, the court erred in admitting in evidence, over their objection, the special tax bill sued upon. The record, however, fails to show that an objection was made to the introduction in evidence of this bill. It is true that it shows that when plaintiff, who was a witness in his own behalf, was testifying, and was handed the tax bill by his attorney, and asked as to the signatures of Flad and Campbelle, as president of the board of public improvements and comptroller, respectively, as shown by the tax bill, defendants objected upon the ground that the evidence was "incompetent, irrelevant, and immaterial"; but these objections did not go to the introduction in evidence of the tax bill itself, and cannot now be so considered.

It is argued by defendants that the sewer, for the construction of which, in part, the tax bill sued on was issued, is a public sewer, and should be paid for out of the public funds, and not by the assessment of property owners. That the municipal authorities undertook by ordinance to establish Vandeventer avenue sewer district, No. 1, is not questioned; but the contention is that the facts and circumstances in evidence show that the sewer is a public sewer, and that, as the cost for the construction of such sewers can only be paid out of the revenues of the city, the tax bill is void. Sections 21 and 22 of article 6 of the scheme and charter define public and private sewers. Section 21 provides that "public sewers shall be established and constructed along the principal courses of drainage, at such times, to such extent, of such dimensions and material and under such regulations as may be provided by ordinance, to be approved by the board of public improvements, and there may be constructed such branches to sewers already constructed, or to be constructed, as may be considered expedient by said board." Section 22 provides that "district sewers shall be established within the limits of districts, to be prescribed by ordinance as approved by the board of public improvements, and so as to connect with a public sewer, or some natural course of drainage. Such district may be subdivided, enlarged or changed, upon the recommendation of said board, by ordinance, at any time previous to the construction of the sewer therein. The assembly shall cause sewers to be constructed in any district wherever a majority of the property holders resident therein shall petition therefor, or whenever the board of public improvements shall recommend it as necessary for sanitary or other purposes; and the character, dimensions and material of such sewer shall be prescribed and may be changed, diminished, enlarged or extended, and such sewer shall possess all requisite laterals, inlets and other appurtenances." These sections provide for the payment of the cost of public sewers by appropriation out of the public revenue, and of the cost of district sewers by special tax bills against the property in the sewer district. It will be observed that by these sections almost unlimited power is vested in the municipal authorities in the location and building of public and district sewers, and as to the latter there is no restriction as to their size or cost. Yet it is argued by defendants that, because the construction of the sewer was a sanitary measure, it was a public benefit, and therefore a public sewer, and that because the main stem of the sewer is eight feet wide, and connected with lateral sewers of varying length, the main stem is at all events a public sewer, and the lateral sewers district sewers. As to the first proposition, it is refuted by the article and section of the charter which authorize the construction of district sewers whenever the board of improvements shall recommend it as necessary for sanitary purposes. It thus seems clear that at least one of the chief objects in the construction of the sewer in question (that is, for sanitary purposes) was that for which the city was authorized to construct it. With respect to the contention that, because the...