Lansdown v. Kierns
| Decision Date | 07 March 1924 |
| Docket Number | 23990 |
| Citation | 260 S.W. 88,303 Mo. 75 |
| Parties | BAILEY W. LANSDOWN v. THOMAS KIERNS and CITY OF JEFFERSON, Appellants |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court; Hon. John G. Slate, Judge.
Reversed.
T S. Mosby and D. F. Calfee for appellants.
(1) The establishing of the sewer district and the location of sewers therein and the necessity thereof were legislative matters resting wholly within the discretion of the city council, and its reasonable exercise of such powers is not subject to judicial review. Akers v. Kolkmeyer, 97 Mo.App. 520; Prior v. Buehler Co., 170 Mo. 439; McGhee v Walsh, 249 Mo. 266; Johnson v. Duer, 115 Mo 366, 376; Heman v. Schulte, 166 Mo. 409, 417; Meier v. St. Louis, 180 Mo. 391, 409; Heman v. Allen, 156 Mo. 534; Kansas City v. Richards, 34 Mo.App. 521; Moberly v. Hogan, 131 Mo. 19; Williams v. Eggleston, 170 U.S. 304, 311; Parsons v. Dist. of Columbia, 170 U.S. 45; Skinker v. Heman, 148 Mo. 355; 3 Dillon, Mun. Corp. (5 Ed.) sec. 1148; 4 McQuillin, Mun. Corp., sec. 1834, p. 3937; 2 Beach on Pub. Corp., sec. 1175; Sec. 8305, R. S. 1919; McMurry v. Kansas City, 283 Mo. 479, 493, 498. (2) The question as to whether plaintiff's property was benefited by the sewer was a legislative question determinable alone by the city council. Prior v. Buehler etc., 170 Mo. 439, 451; Meier v. St. Louis, 180 Mo. 391; French v. Barber Asphalt Pav. Co., 181 U.S. 339, 343; Spencer v. Merchant, 125 U.S. 345, 353; 2 Cooley on Taxation (3 Ed.) p. 1172, note 1; 4 Dillon on Mun. Corp. (5 Ed.) sec. 1437, note 5; Shumate v. Heman, 181 U.S. 403; Heman v. Allen, 156 Mo. 534; McMurry v. Kansas City, 283 Mo. 479; 2 Beach on Pub. Corp., sec. 1175; Johnson v. Duer, 115 Mo. 366, 376; Heman v. Schulte, 166 Mo. 409, 416; McGhee v. Walsh, 249 Mo. 266, 283. (3) The constitutionality of the so-called "area rule" in computing assessments is not open to question: McGhee v. Walsh, 249 Mo. 283; Prior v. Construction Co., 170 Mo. 448; Barber Asphalt Co. v. French, 158 Mo. 534, 547; Same case, 181 U.S. 324; Meier v. St. Louis, 180 Mo. 391, 408; Heman v. Allen, 156 Mo. 534; Webster v. Fargo, 181 U.S. 394; St. Joseph v. Farrell, 106 Mo. 437; Spencer v. Merchant, 125 U.S. 345; 4 Dillon, Mun. Corp. (5 Ed.) sec. 1436. (4) Equity will not decree cancellation, where plaintiff fails to tender the amount reasonably and justly due. Yeats v. Ballentine, 56 Mo. 530; Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 570; Johnson v. Duer, 115 Mo. 366, 479; Arnold v. Hawkins, 95 Mo. 572; Overall v. Ruenzi, 67 Mo. 203; Porter v. Paving & Construction Co., 214 Mo. 1, 20; Marsh v. Richards, 29 Mo. 99, 105; Creamer v. Bates, 49 Mo. 523; Quest v. Johnson, 58 Mo.App. 54. (5) The defendants having shown a substantial compliance with the contract, it was not necessary to prove literal compliance in order to validate the tax bills. Steffin v. Fox, 124 Mo. 630, 635; Porter v. Paving & Construction Co., 214 Mo. 20; Whitworth v. Webb City, 204 Mo. 579, 603; Heman v. Girardi, 96 Mo.App. 231; Cole v. Skrainka, 105 Mo. 303, 309; 4 Dillon, Mun. Corp. (5 Ed.) sec. 1467, p. 2631. (6) In the absence of fraud or collusion, acceptance of the work by the city is conclusive. 28 Cyc. 1137, and notes 74, 75; 28 Cyc. 1185, note 24; 4 Dillon, Mun. Corp. (5 Ed.) sec. 1465.
Dumm & Cook and W. C. Irwin for repondent.
(1) In a suit in equity, this court will defer to the finding of the chancellor who heard the cause; and while this court will weigh the evidence, it will not interfere with the finding of a chancellor if there is substantial testimony to support the same. Daudt v. Steiert, 205 S.W. 225; Davies v. Keiser, 246 S.W. 900; Williamson v. Frazee, 242 S.W. 962; McKinney v. Hawkins, 215 S.W. 250. (2) There being substantial testimony in this case that the sewer, for the payment of which the special tax bills involved were issued, was not built in substantial compliance with the plans and specifications, the chancellor properly decreed the cancellation of the special tax bill issued against plaintiff's property. Heman v. Gerardi, 96 Mo.App. 231, 235; City of Kirksville ex rel. v. Coleman, 103 Mo.App. 215; King Hill Brick Mfg. Co. v. Hamilton, 51 Mo.App. 120; Barton v. Kansas City, 110 Mo.App. 31. (3) No tender was necessary. Plaintiff's property was not connected with the sewer in question, since he already had ample sewer facilities, and he therefore received no benefit from the sewer for the payment of which the special tax bills were issued. (4) The ordinance levying and assessing the tax for the payment of the sewer in Sewer District No. 26, and the tax bills issued under said ordinance, are invalid and void, as being violative of the Fourteenth Amendment to the Constitution of the United States, in that said tax bills are grossly unequal, and constitute a taking of plaintiff's property without due process of law. Gast Realty & Investment Co. v. Schneider Granite Co., 240 U.S. 55, overruling Schneider Granite Co. v. Gast Realty & Investment Co., 259 Mo. 153; Wetterau v. Trust Co., 226 S.W. 941; Ruecking Const. Co. v. Withnell, 269 Mo. 546; Commerce Trust Company v. Blakely, 274 Mo. 52.
Suit in equity to cancel district sewer tax bill against Lots 1 and 2, Block Two, General Realty Company's subdivision to Jefferson City, Missouri. Judgment for plaintiff, from which defendant, the contractor, appealed.
The petition, among other things, alleged that Sewer District No. 26, in which plaintiff's property is located, was established by ordinance of said city No. 2013, passed October 8, 1920. That thereafter, on the same day, October 8, 1920, another ordinance was passed by said city, No. 2014, for the construction of a district sewer in said District No. 26, which ordinance "declared it to be necessary for sanitary purposes and for the health and convenience of the residents of said city" that sewers be constructed in said District No. 26, and ordered the city engineer of said city to prepare plans and specifications and an estimate of the cost of the work, to advertise for bids for the doing thereof, and that the work should be awarded by the city council to the lowest and best bidder, and that the mayor of said city was authorized to enter into contract with the successful bidder. That the work should be done under the supervision of the city engineer, and when completed he should compute the cost and apportion it against each lot in the district in proportion to the area of the whole district exclusive of highways. That in pursuance of said Ordinance No. 2014, the city engineer prepared plans and specifications and an estimate of the cost of the work and filed same in the office of the clerk. That the engineer advertised for bids, and on November 20, 1920, the city council accepted the bid of defendant Thomas Kierns, and on the same day said city, through the mayor, entered into a contract with defendant for the construction of said sewer, according to the plans and specifications, the bid of defendant being $ 11,226.27. That defendant undertook the construction of said sewer, and on February 7, 1921, the city engineer reported to the city council that said sewer had been completed according to the contract, plans and specifications, and that the total cost of said work amounted to the sum of $ 7544, which report was adopted and the work of constructing said sewer accepted by the city council by resolution of February 11, 1921. That said city engineer apportioned the cost against the lots in the district in proportion to the area of the whole district, exclusive of highways, and on February 11, 1921, the city council, by ordinance, levied a special tax against each lot in said district. On February 14, 1921, the city clerk issued special tax bills against each tract in the district, which were duly signed by the mayor and delivered to defendant Kierns in payment for the construction of said sewer. The one against the plaintiff's property was for $ 385.18.
The petition further alleged that said tax bills were a cloud on plaintiff's title, and were void for the following reasons:
That said Sewer District No. 26 was not necessary for sanitary purposes, nor for the health or convenience of the residents of said city, and that the party owners within said district already had ample facilities;
That said sewer was laid across private property without consent of owners or condemnation;
That a large part of said sewer had been dug up and cannot be used for sewer or any purpose;
That a large part of said sewer is laid on solid rock, contrary to the plans and specifications;
That the joints of said sewer are not cemented as required by the plans and specifications, and for that reason said sewer was useless;
That the manholes are not constructed of the material or in the manner to comply with the plans and specifications;
That no lamp holes are constructed at any point in said sewer as required by the plans and specifications;
That the cost of said sewer is excessive, prohibitive, is a confiscation of the plaintiff's property and the taking of the plaintiff's property without due process of law;
That said sewer cannot be used by plaintiff, nor by any of the property owners in said district;
That the plans and specifications for the construction of said sewer were violated in many other respects and the construction of said sewer has not been in any respect in substantial compliance with the plans and specifications.
The prayer of the petition is that said special tax bill be cancelled, set aside, and for naught held, and for all other and proper relief in the premises.
During the trial the court permitted the plaintiff to amend his petition by inserting the following paragraph: "That the ordinance of the ...
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