Hill v. Swingley

• Decision Date: 18 December 1900
• Citation: 60 S.W. 114,159 Mo. 45
• Parties: HILL et al. v. SWINGLEY, Appellant
• Court: Missouri Supreme Court

60 S.W. 114

159 Mo. 45

HILL et al. v. SWINGLEY, Appellant

Supreme Court of Missouri

December 18, 1900

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Julian Laughlin and Thos. S. Meng for appellant.

(1) Respondents can not amend their petition by reply, and under the guise of an estoppel, recover for the breach of a contract not sued on. Hill v. Mining Co., 119 Mo 30; Cole v. Armour, 154 Mo. 350; Mohney v Reed, 40 Mo.App. 109; McMahill v. Jenkins, 69 Mo.App. 279. (2) It is a prerequisite to the validity of tax bills that a limit should be fixed by ordinance of the aggregate cost of doing the work. This not having been done the tax bill sued on is void. Charter, City of St. Louis, art. 6, sec. 28; Wheeler v. Poplar Bluff, 149 Mo. 42; City of Independence v. Briggs, 58 Mo.App. 241; Butler v. Detroit, 43 Mich. 555. (3) The city charter is in violation of the Constitution. Section 11, article 10, provides: "For city and town purposes, the annual rate on property in cities and towns having thirty thousand inhabitants or more, shall not, in the aggregate, exceed one hundred cents on the hundred dollars valuation. For school purposes, in districts forming the cities and towns, to an amount not to exceed one dollar on the hundred dollars valuation," and says: "Such restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness."

Collins & Jamison and David Goldsmith for respondents.

OPINION

In Banc

VALLIANT J. --

Suit upon a special tax bill issued by the city of St. Louis against defendant's property for the building of a district sewer. The answer of the defendant asserts the invalidity of the tax bill on several grounds. Those to which our attention is chiefly directed in the brief of appellant are that the ordinance and contract under which the sewer was built were in violation of the city charter, and that the provisions of the city charter relied on by plaintiffs are in violation of the Constitution of the United States and of this State.

There was a reply setting up an alleged transaction between plaintiffs and defendant relating to the connection of his private sewer with the sewer in question, whereby it was claimed that defendant was estopped to deny the validity of the tax bill. But upon the trial that issue seems to have been decided, if at all, in appellant's favor, and is not therefore for review on his appeal.

The evidence showed that the estimate of the cost of the sewer submitted to the municipal assembly by the board of public improvements was $ 92,000, and that when the work was done the total cost assessed against the property in the district was $ 108,438.

I. The clause of the city charter deemed by appellant to have been violated is section 28, article 6: "Every ordinance requiring such work to be done shall contain a specific appropriation from the proper revenue and fund, based upon an estimate of cost, to be indorsed by the president of the board of public improvements on said ordinance, for the whole of the cost of each street, part of street, or other object, respectively; and every contract shall contain a clause to the effect that it is subject to the provisions of the charter, that the aggregate payments thereon shall be limited by the amount of such specified appropriation," etc.

It is very apparent that that clause refers to contracts for work that is to be paid for out of the city treasury. The limit that is put on the price to be paid is the amount of the specific appropriation, not the estimate submitted to the assembly by the board of public improvements. The next preceding section, section 27, requires the board to "prepare and submit to the assembly estimates of costs of any proposed work," which is for the information of the assembly and applies as well to sewers as to streets, but a limit of cost is not fixed in that section. A preceding section in the same article, section 22, in regard to district sewers, provides that when such a sewer is completed "the whole cost thereof shall be assessed as a special tax against all the lots of ground in this district respectively."

There is no appropriation in such case called for or authorized and hence the limit specified in section 28 has no application. As argued by the learned counsel for appellant, there is no reason why the lawmakers should not have placed a limit on the...