Hoffman v. Houck

• Citation: 282 S.W. 448
• Decision Date: 06 April 1926
• Docket Number: No. 19493.,19493.
• Parties: HOFFMAN v. HOUCK et al.
• Court: Court of Appeal of Missouri (US)

282 S.W. 448

HOFFMAN v. HOUCK et al.

No. 19493.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Appeal from Court of Common Pleas, Cape Girardeau County; Oscar A. Knehans, Judge.

"Not to be officially published."

Action by E. D. Hoffman against Louis Houck and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Giboney Houck, of Cape Girardeau, for appellants.

L. L. Bowman, of Cape Girardeau, for respondent.

DAUBS, P. J.

This is an action on a tax bill, issued against defendants' property in the city a Cape Girardeau, Mo., for street improvement. Plaintiff recovered, and defendants have appealed.

Plaintiff's petition is in usual form.

Defendants' answer, first, alleges that the statutory law was not complied with, in that a benefit district was not established for the payment of damages and fixing benefits arising from a change of grade in carrying out the improvements. It is then alleged that the ordinance does not contain any provision for a granitoid curbing, and that a charge is made in the tax bill for such work; that engineering expenses were allowed the contractor which caused the entire improvement to cost $107.3.5 in excess of the contract. It is alleged that the work was accepted by the city on October 11, 1919, and that the city clerk did not issue the tax bills until October 20, 1919, and that the tax bills therefore were void because same were not issued on the 11th day of October, 1919, and that, since the suit was brought on the 17th day of October, 1924, same was barred by the 5-year statute of limitation. The final allegation of the answer is that the work was not properly done.

The reply is a general denial.

Cape Girardeau is a city of the third class, operating under the commission form of government. The tax bill sued on is dated October 20, 1919, and suit was filed on October 17, 1924. Plaintiff's evidence in chief consists of the special tax bill and the assignment of same by the contractor to the plaintiff.

The defendants introduced in evidence the file papers of the proceedings of the city commissioners upon which the tax bills were issued, and the defects appearing in this record evidence, as insisted by the defendants, will be pointed out in the course of the opinion. One witness testified for the defendants to the effect that the pavement, after about 5 years had elapsed, contained cracks or breaks in front of defendants' property, and that the pavement had settled in places and was apparently disintegrating. The plaintiff, on rebuttal, introduced the city engineer, who testified that the street was properly constructed, and that it was in good condition. Other witnesses testified likewise. There was further evidence that the street was constructed with a crown in the center and a curb along the sides, and that the slope from the crown or center of the street formed a gutter where same joined the curb. There was abundant evidence that the street was built according to plans and specifications on file with the city clerk. The work was accepted by the city engineer, approved by the city commissioners, and an ordinance duly passed Which eventuated in the issuance of the tax bills.

Some of the assignments of error are so palpably without merit that we need but refer to them. The first question, however, is worthy of some discussion.

It is insisted that the court erred in overruling the objection of the defendants to the introduction of any evidence in the case, for the reason that there was no benefit district organized, as provided for by sections 8676 and 8677, Revised Statutes Missouri 1919. At first blush this may seem to be of some consequence. Upon an examination of the law, however, it is apparent that this objection fails.

Section 8676 of the statutes provides that, before a city makes a public improvement which causes "damage to private property for public use, within the meaning of section 21 of article 11 of the state Constitution, without the consent of the owner of such property," and upon a failure of agreement upon such compensation, on petition to the circuit court by either the city or the parties interested, the damages and benefits shall be determined by a commission of freeholders appointed by the court.

Section 8677 provides that it shall be the duty of such circuit court commissioners, in every case where damages are allowed, to provide for the payment of such damages by assessing against the city the amount of benefit, if any, to the public generally, by reason of the change, enlargement, or improvement so made, and the balance, if any, against the property which is especially benefited. In other words, the law clearly means that, where it is necessary, in making an improvement, property is taken or damaged for public use, compensation shall...