Miners' Bank v. Clark

• Decision Date: 28 June 1913
• Citation: 158 S.W. 597,252 Mo. 20
• Parties: MINERS' BANK v. EDWARD M. CLARK, Appellant
• Court: Missouri Supreme Court

158 S.W. 597

252 Mo. 20

MINERS' BANK v. EDWARD M. CLARK, Appellant

Supreme Court of Missouri, Second Division

June 28, 1913

Appeal from Jasper Circuit Court. -- Hon. David E. Blair, Judge.

Affirmed.

C. V Buckley for appellant.

(1) The work to be done, that is in this case, the space to be covered with macadam, must be specified; not only the length but the width and when it is specified it must be done as specified. If a less space than the contract calls for is actually covered by the contractor the tax bills are void. City v. Etterson, 120 Mo.App. 215; Grading Co v. Holden, 32 Mo.App. 490; Cole v. Shrinka, 105 Mo. 303; Brady v. St. Joseph, 84 Mo.App. 399; Kansas City v. O'Conner, 8 Mo.App. 655; West v. Porter, 89 Mo.App. 150; Louisiana v Shaffner, 104 Mo.App. 101. An ordinance for construction of sewer must contain plans and specifications or refer the public to some place where they may be found or the ordinance is void. McCormick v. Moore, 134 Mo.App. 669; Dickey v. Holmes, 109 Mo.App. 721. (2) Ordinances cannot delegate the authority to select the material to be used in a street improvement or any part thereof. It was violated in this case by allowing the engineer or the street committee to select the kind of sand to be used in the top, filler or binder course. City v. Eddy, 123 Mo. 563; Independence v. Knoepker, 134 Mo.App. 601. A city ordinance cannot direct sidewalks to be built of wood, brick or stone. Rich Hill v. Donnon, 82 Mo.App. 386. It cannot be said that the material selected is just as good or that it was immaterial. It was held that where the ordinance required crushed river gravel, if the river gravel used was not crushed, the tax bills were void. Kansas City v. Askew, 105 Mo.App. 84. The city cannot leave to engineer part of street to be improved. Council cannot delegate its (legislative) functions to a ministerial officer. Ramsey v. Field, 115 Mo.App. 620. (3) The appellant properly and in time protested against the improvement in question. The city had no power, in the face of such protest, to order the improvement. A majority of the front feet owners protested. The appellant at the time owned it all. Sec. 9255, R.S. 1909. (4) It was illegal for the city to order the improvement at the expense of the appellant. The city had agreed to do it and therefore was estopped by the deed to this street made to it by appellant. A city has power to acquire public highways within its limits by express grant. Wythe v. St. Louis, 153 Mo. 80. A city can make any contract for property or about any subject within its express or implied powers. 15 Am. & Eng. Ency. Law, p. 1080, sec. 14. The acquirement and control of its streets by a city is one of its principal privileges and if it cannot procure land for streets by grant from its owners, it can acquire such land by condemnation. Constitution, art. 2, sec. 21; Sec. 9261, R.S. 1909. Joplin, being a city of the third class, has power and authority to improve its streets at its own expense; and is not limited in the doing of said improvements, to taxing the same to the adjoining property owners. Sec. 9254, R.S. 1909. A city may be charged with improvements whether it has the money in its treasury or not; whether it has appropriated it or not. If it has the power to make the contract it is all that is required. Barber & Co. v. St. Joseph, 183 Mo. 451. It is estopped to deny any contract it has power to make. Unionville v. Martin, 95 Mo.App. 38. A city may buy land for any legitimate or authorized purpose. Vaughan v. Greencastle, 104 Mo.App. 206; Ely v. St. Louis, 181 Mo. 723; 15 Am. & Eng. Ency. Law, p. 1080, sec. 14. A case very much in point is where a city was held bound by its contract to maintain bridges across a mill race within its limits. State ex rel. v. Cowgill M. Co., 156 Mo. 620. The cases in this State that hold a city, or the State, cannot exempt persons from taxation, or even from special assessments is based on the doctrine that it is ultra vires of a city, because it would proportionally increase the burden of taxation upon others if some were returned; but that condition does not exist here. Here there is nobody but the city and Clark concerned; and we have seen from the above authorities that a city is charged with its obligations where no other person's rights are violated; where no unjust or unequal burden is thrown upon any other citizen.

George J. Grayston and Haywood Scott for respondent.

(1) Sufficiency of specifications of work to be done. The width to be improved need not be specified when shown by the plan. Hamilton on Special Assessments (1 Ed.), p. 359, sec. 407; Gafney v. San Francisco, 72 Cal. 146; Hedonburg v. Chicago, 44 N.E. 395. Reference to plans and specifications in resolution and ordinance is sufficient. Page & Jones on Taxation by Assessment (1 Ed.), sec. 833, p. 1418; sec. 849, p. 1446; Roth v. Hax, 68 Mo.App. 287; Galbreath v. Newton, 30 Mo.App. 381; Whitworth v. Webb City, 204 Mo. 598; Akers v. Kolkmeyer & Co., 97 Mo.App. 529; Paving Co. v. Ullman, 137 Mo. 571. "An ordinance or notice of an improvement is sufficient where it describes generally the kind of improvement proposed to be made and refers for a specific description to maps, plans, specifications or other detail thereof on file in a public office, accessible to interested parties." Walsh v. Bank, 139 Mo.App. 647; Hamilton on Special Assessments (1 Ed.) p. 304, sec. 358; Page and Jones on Assessments (1 Ed.), sec. 833, p. 1418; Clinton v. Portland, 26 Ore. 419; Greensburg v. Zoller, 60 N.E. 1007. Ordinance 2050 and the plan furnished all the plans and specifications necessary for such work. The trial court expressly found same to be sufficient, and as appellant has not furnished the plan in his record this court is not in a position to hold same insufficient. Probert v. Investment Co., 155 Mo.App. 344. (2) De Minimus. The ordinance provided that the 4-inch layer of macadam should consist of stone not to exceed two inches in diameter, and that it should be thoroughly consolidated by rolling with a 15-ton roller. The spaces then existing should be filled with mill tailings, or such other material as might be designated by the city engineer or street committee. Minor matters may be left to the discretion of the officials in charge of such work. Swift v. St. Louis, 180 Mo. 96; Gibson v. Owen, 110 Mo. 455; Guyer v. Rock Island, 215 Ill. 144. Another view of the matter is: The ordinance provided that those spaces should be filled with mill tailings or such other material as might be designated by the engineer or street committee. The attempt to delegate follows a provision, which is otherwise certain, as an alternative. If the attempt to delegate is ineffectual, then that provision should be disregarded as surplusage. Thus the requirement as to the use of mill tailings would be rendered certain and the ordinance would still be complete. Railroad v. Jacksonville, 114 Ill. 563. Mill tailings were in fact used. (3) Appellant's contention that the statute, limiting the right to protest against such improvements to resident property owners, is unconstitutional, has been decided against him by this court and by the Supreme Court of the United States. Buchan v. Broadwell, 88 Mo. 36; Field v. Asphalt Co., 194 U.S. 618. (4) The provision in the deed from appellant to the city of Joplin, which he claims exempts his property from taxation, was void for the reason that the city was not authorized to waive its right to improve its streets in either manner provided by law. Vrana v. St. Louis, 164 Mo. 146; Noblesville v. Railroad, 130 Ind. 1; City v. Railroad, 19 Wash. 518; Elliott on Roads and Streets (2 Ed.), sec. 148, p. 156. Richards v. Cincinnati, 31 Ohio St. 506, holds that in such cases the grant is valid but the condition void.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C.

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 Two 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.

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...