Miners' Bank v. Clark

• Citation: 158 S.W. 597
• Parties: MINERS' BANK v. CLARK.
• Decision Date: 28 June 1913
• Court: United States State Supreme Court of Missouri

158 S.W. 597

MINERS' BANK v. CLARK.

Supreme Court of Missouri, Division No. 2.

June 28, 1913.

1. MUNICIPAL CORPORATIONS (§ 485)—PUBLIC IMPROVEMENTS—SPECIAL TAX BILLS— BURDEN OF PROOF.

Where special tax bills for a public improvement are regular upon their face, they make out a prima facie case, and the burden is upon defendant to show the defect in the proceedings or work rendering them void.

2. MUNICIPAL CORPORATIONS (§ 444)—PUBLIC IMPROVEMENTS—SPECIFICATIONS.

Special tax bills for paving cannot be held void on the ground that the ordinance and specifications did not fix the width of the roadway, where the resolution, ordinance, and contract all referred to a plan on file in the city clerk's office, which sufficiently designated the dimensions of the improvement under Sess. Acts 1907, p. 103, amending Laws 1901, p. 65, § 5859, so as to provide that when the council shall deem it necessary to macadamize streets, the contract may be let to the lowest and best bidder on plans and specifications filed with the city clerk.

3. APPEAL AND ERROR (§ 931) — REVIEW — PRESUMPTIONS—ABSTRACT.

In an action on tax bills, where the lower court found that the specifications filed with the city clerk were sufficient to designate the width of the pavement, its finding will be presumed correct, where the specifications were not included in the abstract.

4. MUNICIPAL CORPORATIONS (§ 284)—PUBLIC IMPROVEMENTS — IMPROPER DELEGATION OF POWER TO CITY ENGINEER.

An ordinance, under which municipal paving was done, provided that, a macadam course having been finished, the space between the stones shall be filled with clean mill tailings, or such other material as shall be directed by the city engineer or street committee. This was a general ordinance, and the notice for the particular pavement requesting bids did not show any attempt to change the material from mill tailings. Held, that as mill tailings were used in laying the pavement, tax bills therefor are not void, on the theory that the ordinance improperly delegated to the city engineer the power to select the material.

5. STATUTES (§ 77)—SPECIAL LAWS—CLASS LEGISLATION.

A statute is not special or class legislation if it apply to all alike of a given class, provided the classification is not arbitrary or without reasonable basis.

6. CONSTITUTIONAL LAW (§ 48)—INVALIDITY OF STATUTES—PRESUMPTIONS.

The courts, before pronouncing a statute void as in conflict with the Constitution, should be satisfied beyond a reasonable doubt of its vice; all presumptions being in favor of constitutionality.

7. STATUTES (§ 94)—SPECIAL LAWS—CLASS LEGISLATION.

Rev. St. 1909, § 9255, providing for protests against pavement by resident owners, but not giving nonresidents any such right, does not violate Const. art. 4, § 53, prohibiting special legislation; the statute being applicable alike to all resident owners, and the classification being reasonable because nonresidents naturally would not be interested in the improvement of the municipality.

8. CONSTITUTIONAL LAW (§§ 232, 290) — EQUAL PROTECTION OF LAWS—DUE PROCESS OF LAW.

Rev. St. 1909, § 9255, providing for protests by property owners against street paving, but not giving nonresident owners that right, is not in violation of Const. U. S. Amend. 14.

9. COURTS (§ 97) — RULES OF DECISION—FEDERAL COURTS.

A decision of the federal Supreme Court as to whether a statute is in violation of the fourteenth amendment is binding on the state courts.

10. MUNICIPAL CORPORATIONS (§ 442)—PUBLIC IMPROVEMENTS—EXEMPTION FROM ASSESSMENTS—POWER OF MUNICIPALITY.

Unless the law constituting its charter gives the right, a city cannot contract away its right and power to levy special assessments for street improvements.

11. MUNICIPAL CORPORATIONS (§ 442)—PUBLIC IMPROVEMENTS — STREET IMPROVEMENTS —DEFENSES.

Where a property owner granted land to a city for street purposes, the deed providing that all pavements should be laid at the expense of the city, or it should forfeit its right to the streets, the provisions of the deed which was accepted by the city, exempting the owner from liability for special assessments, cannot be set up to defeat such special assessment, even though the city's right to the land may be thus forfeited; for a municipality cannot, by contract, convey away its right to levy special assessments, and the mere fact that it may acquire land for street purposes does not authorize it to acquire land by surrendering its rights.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by the Miners' Bank against Edward M. Clark. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit upon eight special tax bills issued by the city of Joplin, a city of the third class, to the contractor for grading and macadamizing the roadway portion of Fifth street, from the east line of School street to the west line of Spring Park addition, in said city. The tax bills were sold and assigned by the contractor to the plaintiff bank, respondent herein. Trial was had in division 2 of the circuit court of Jasper county before the court, without a jury, resulting in a judgment in favor of plaintiff on each of said tax bills, from which judgment defendant (certain constitutional questions being involved) has appealed to this court. Plaintiff introduced in evidence said special tax bills, which appear to be regular in form. Defendant, the owner of the lots against which the special tax bills were issued, thereupon introduced evidence in support of his answer, pleading certain defenses. No question is raised as to the sufficiency of the pleadings, and there is little, if any, dispute about the facts. It is therefore unnecessary to deal with the facts at length here, but such of the facts as are necessary to a complete understanding of the errors assigned will be stated in the course of the opinion.

C. V. Buckley, of Joplin, for appellant. George J. Grayston and Haywood Scott, both of Joplin, for respondent.

WILLIAMS, C. (after stating the facts as above).

The special tax bills introduced in evidence were regular upon their face, and therefore made out a prima facie case for plaintiff. The prima facie case thus made is subject to rebuttal, but the burden is upon defendant to show the defect in the proceedings or work rendering the tax bills void.

I. Recognizing the above burden, appellant first contends that the tax bills are void because the width of that portion of the street to be graded and macadamized, designated as the "roadway," was not specified or definitely fixed by ordinance or proper plans and specifications. The resolution of the city council declaring the improvement necessary, the ordinance providing for the improvement, and the notice to contractors for bids on the work, and later the contract for the work, each and all state that the work shall be done according to plans and specifications on file in the city clerk's office. The evidence shows that the plan was filed in the office of the city clerk, showing that the roadway portion of the street was 24 feet in width, and that the improvement made conformed to that dimension. Where the resolution, ordinance, notice to contractors, and the contract itself, refer to a plan on file in the city clerk's office, that is sufficient, providing the plan so on file sufficiently designates the different dimensions of the improvement to be made. Asphalt Paving Co. v. Ullman, 137 Mo. 543, loc. cit. 571, 38 S. W. 458; Construction Co. v. Coal Co., 205 Mo. loc. cit. 68, 103 S. W. 93; McCormick v. Moore, 134 Mo. App. 669, loc. cit. 678, 114 S. W. 40; Session Acts 1907, pp. 103, 104.

Appellant's abstract of the record does not contain a copy of said plan, but the trial court found that the plan was properly filed in the city clerk's office, that it "fixed the width of the proposed improvement with sufficient certainty," and that the work was substantially performed by the contractor. Absent a copy of the plan from the abstract, we cannot review the court's finding in that regard, but will presume that the court properly and correctly so found.

II. Appellant's next contention is that the tax bills are void because the ordinance delegated to the city engineer the authority to select part of the material to be used. That portion of the ordinance thus attacked reads: "The macadam course having been finished, the space between stones shall be filled with clean mill tailings, or such other material as may be directed by the city engineer or street committee." The specifications for the work provide, first, that the roadway be excavated to a depth of 12 inches below the established grade line, and that into this excavation shall be put an eight-inch layer of stones four inches or less in diameter, which must be consolidated by rolling with a steam roller. Upon this foundation layer must then be placed a four-inch layer of macadam, consisting of stones two inches or less...