Likes v. City of Rolla

• Decision Date: 03 April 1915
• Docket Number: No. 1471.,1471.
• Citation: 190 Mo. App. 140,176 S.W. 520
• Parties: LIKES v. CITY OF ROLLA.
• Court: Missouri Court of Appeals

176 S.W. 520

190 Mo. App. 140

LIKES v. CITY OF ROLLA.

No. 1471.

Springfield Court of Appeals. Missouri.

April 3, 1915.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by J. C. Likes against the City of Rolla. From a judgment for defendant, plaintiff appeals. Affirmed.

J. J. Crites, of Rolla, and Barbour & Mc-David, of Springfield, for appellant. Frank H. Farris, Holmes & Holmes, and Watson & Livingston, all of Rolla, for respondent.

STURGIS, J.

The facts in this case are not in dispute. The defendant is a city of the fourth class. It has the power to and did enter into a contract with this plaintiff to pave Eighth street in the defendant city. It is agreed that there are no infirmities in this contract, or the proceedings had relative thereto, up to the time the work was completed and tax bills issued. The plaintiff complied with the contract in every particular and paved the street in the manner and with the materials specified in the contract. The contract in question contains these provisions:

"It is also expressly agreed that the said party of the second part shall not be liable to pay directly or indirectly for said work or any part thereof except in special tax bills as hereinafter provided, and the party of the first part shall and does assume all risks as to the legality and illegality, validity or invalidity of said special tax bills, and take the same without recourse against the city of Rolla, Missouri. The city of Rolla, Missouri, hereby agrees to pay to the said party of the first part for the above work when the same is fully completed according to this agreement, and the ordinances, plans and specifications of this work, and to the satisfaction and acceptance of the city engineer and street commissioner, at the following rates, namely: Two dollars and forty-five cents per square yard, in special tax bills issued against the property liable for the cost of the work, and deliver the same to the party of the first part according to the laws and ordinances of the said city, and the receipt thereof shall be in full of all claims and damages against the city on account of said work."

On the completion and acceptance of the work done by plaintiff under this contract, the defendant city issued to him certain tax bills in payment of the same against various tracts of land fronting on the street in question, most of which have been paid. In this case plaintiff seeks to recover from defendant city the contract value of the paving done by him in front of four pieces of property on the street in question, on the ground that he contracted to and did pave said street, for which work he was to receive his compensation in tax bills issued against the abutting property; that the said tax bills issued by the defendant city did not give a correct description of these pieces of property, but by mistake were issued against other and different property, a part of which does not abut on this street, whereby he was unable to enforce the collection thereof against the property properly charged with their payment; that subsequently plaintiff demanded of the officers of said defendant city that they issue corrected tax bills covering the property liable therefor; that said city declined to do so, and on account of such refusal to issue additional and corrected tax bills for that portion of the work, plaintiff claims that the city thereby became responsible in damages for the amount due him on account of said work.

The parties admit that each of the five lots described in plaintiff's petition were, on June 16, 1909, when the work of paving was completed, liable for the amounts named in plaintiff's petition, respectively, as their proper share of the cost of the paving constructed by plaintiff on the street in question under the contract herein relied on. It is also admitted that the defendant city at that time issued and delivered certain tax bills to the plaintiff for the various amounts claimed to be due, and made an honest effort in doing so to cover, by said tax bills, the lots in question fronting on Eighth street, which were subject to assessment and to be legally charged for said improvement; that the defendant city issued and delivered such tax bills to the plaintiff as payment for the improvements made by him under said contract, and that plaintiff received and accepted the same, and has, since the 18th day of June, 1909, had possession thereof; that thereafter, plaintiff filed suits and tried to enforce the lien of some of said tax bills, and did not make formal complaint to the defendant city of any invalidity or legal defects in the tax bills received by him until about May 1, 1914, at which time there was a change in the personnel of the mayor and board of aldermen of said city, and that defendant had a different set of officers than at the time of making the contract and performance of the same by plaintiff, and that their knowledge of said contract and performance of same by plaintiff is only such as appears from the records of said city; that plaintiff made claim to the defendant city in writing about May 1, 1914; that the tax bills in question, theretofore issued on June 18, 1909, were void and noncollectible, and demanded that defendant, through its board of aldermen and other officers, issue other tax bills against and correctly describing the property set out in plaintiff's petition, and that the defendant city refused to do so. It is conceded that the tax bills issued by the city are invalid solely because of a misdescription of the property intended to be covered thereby, and that if the city had issued tax bills covering the correct property liable for these special tax bills, the same would be valid and enforceable against such property.

The paramount question at issue is whether the defendant city is liable in damages for its refusal to issue corrected tax bills so as to cover and correctly describe the property liable therefor.

I. Preliminary to this it may be said that the power of the city to issue corrected tax bills under the circumstances now presented is not questioned, and cannot be, as will be seen from the authorities cited by appellant, some of which will be noticed in this opinion. In insisting, as defendant does, that mandamus is the proper remedy, the defendant must concede that the defendant city by its officers has the power to take the preliminary steps and to issue corrected tax bills; otherwise it could not be coerced by mandamus to do so. Defendant cites a long list of cases showing that mandamus to cancel void tax bills on property improperly described, and to compel the issuance of new tax bills against the property liable therefor, is a proper remedy. State ex rel. v. St. Louis, 211 Mo. 591, 604, 111 S. W. 89; State ex rel. v. Chillicothe, 237 Mo. 486, 141 S. W. 602; State ex rel. v. St. Louis, 183 Mo. 230, 235, 81 S. W. 1104. The power and duty of a city to issue tax bills against property liable therefor is not exhausted by an abortive attempt to do so.

II. The fact that the personnel of the city government changes between the time of doing the work—the time when correct tax bills should be issued to the contractor—and the time of demanding corrected tax bills cannot be material. This time might be short, and in fact it often happens that such change takes place between the time the contract is made for doing such work and the time when any tax bills are due to be issued. It would be strange indeed if one set of city officers could make a valid contract on behalf of the city and a second set promptly repudiate the same by refusing to carry it out. In Eyerman v. Blakesley, 13 Mo. App. 407, there was a change both in the personnel of the city officers and in the city charter itself, and the court held:

"Here the original tax bill was void, because it was made out against 11 lots in a mass as one tract. Being void, when the plaintiff sought to have new bills made out, his case stood precisely as though no bills had ever been made out; for a void act is the same as no act at all. * * * The city, having failed * * * to execute this contract by its proper officer at the time, by giving to this plaintiff; properly certified end valid tax bills, was bound to execute it on his demand by its officer in office, when the demand was made, upon whom the duty of executing such contracts had been devolved by the new charter."

In Barber Pay. Co. v. Field, 134 Mo. App. 663, 111 S. W. 907, it was held that an amended tax bill could be issued by the officers of Kansas City in lieu of an incorrect tax bill issued by the officers of the city of Westport after the former city had absorbed the latter and assumed its powers and duties. To the same effect is Barber Pay. Co. v. Hayward, 248 Mo. 280, 154 S. W. 140.

III. Closely associated with this contention is the one that the issuance of new tax bills involves the passage of an ordinance authorizing same and levying a special tax on these lots, a legislative act, and that the legislative powers of a city cannot be thus indirectly controlled or coerced by the courts. If this defense should prevail it would be far-reaching. It is inconsistent with defendant's position that mandamus is a proper remedy. If the defendant city cannot be held liable in damages for its refusal to issue corrected tax bills, because the issuance of same involves legislative acts which cannot thus be indirectly controlled or coerced by the courts, the courts certainly cannot directly by mandamus coerce and control such legislative acts. This leaves plaintiff without any remedy. So, too, if the issuance of corrected tax bills involves legislative powers which cannot to coerced by the courts, certainly the issuance of original tax bills is legislative and cannot be coerced or controlled, either directly or or indirectly, by the courts. The result would be that every contractor who `has done this kind of public improvement under a...