Neill v. Ridge

• Decision Date: 30 March 1909
• Citation: 220 Mo. 233,119 S.W. 619
• Parties: NEILL v. RIDGE et al.
• Court: Missouri Supreme Court

119 S.W. 619

220 Mo. 233

NEILL v. RIDGE et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

1. MUNICIPAL CORPORATIONS (§ 474)—SEWER IMPROVEMENTS—VALIDITY OF ASSESSMENT.

The omission from computation and apportionment of cost of a portion of land embraced within the sewer district does not render void the tax bills issued for the cost of the sewer.

2. MUNICIPAL CORPORATIONS (§ 474)—SEWER IMPROVEMENT—VALIDITY OF ASSESSMENT—OMISSION OF PROPERTY.

Kansas City Charter, art. 9, § 10, provides that the cost of any sewer shall be apportioned against the land in the sewer district, and in the proportion that their areas bear to the area of the whole district. Section 18 provides that every tax bill shall be prima facie evidence of the validity of the bill and of the liability of the land to the charge stated in the bill, but that defendant may plead, in reduction of any bill, any mistake in the amount thereof, and if any party shall plead such mistake, and that he before the suit tendered the full value of the work done, the recovery shall only be for the amount so tendered, and judgment for costs shall be rendered against plaintiff. Held, that any error in omitting a portion of the land embraced within the sewer district does not render the tax bill void; but the remedy of the landowner is to ascertain the amount for which his land is chargeable, and to pay or tender such amount, and, when sued on the tax bill, plead the error in partial defense, instead of pleading total invalidity of the bill.

3. MUNICIPAL CORPORATIONS (§ 490)—IMPROVEMENTS—INTEREST ON EXCESSIVE TAX BILL.

Though the tax bill for construction of a sewer be excessive in amount, the only way to stop the accruing of interest is to pay or tender the amount justly recoverable.

Appeal from Circuit Court, Jackson County.

Action by Robert Neill against Isaac M. Ridge and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This cause is now presented to this court by appeal upon the part of the defendants from a judgment of the circuit court of Jackson county in favor of the plaintiff upon certain tax bills issued for the work of constructing sewers in sewer district No. 61, in Kansas City, Jackson county, Mo. The bills aggregate $4,487.50. The sufficiency of the petition upon these tax bills is not challenged. Hence it is not essential that we burden this statement with a reproduction of it. The answer of the defendants, which was filed on June 18, 1901, was, first, a general denial of the allegations in the petition. Then follows the new matter in the answer, setting up other defenses. Such new matter is thus stated in the answer: "Further answering plaintiff's petition and each and every count thereof, these defendants say: That it is and was provided by the charter of Kansas City, Mo., by section 10 of article 9 thereof, that the cost of district sewers shall be by the board of public works apportioned and charged against the lots of land in the district exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district exclusive of the streets, avenues, alleys, and public highways, but that the pretended tax bills issued for the work done by said construction company, under said alleged ordinance No. 8,512, are not so apportioned, and are not issued against all of the property lying within the said district; that, among other property exempted from the lien of the tax bills so issued, is a large area of land or lots lying within said pretended sewer district No. 61, belonging to the Kansas City Belt Railway Company, which said land owned by said railway company was omitted altogether from the assessment by the board of public works against the property chargeable with the cost of said sewers; and that, by reason of such omissions, neglect, and failure of the said board of public works so to assess such land as aforesaid, the amount of the said special bills charged against each and every of the lots and parcels of the land of these defendants has been illegally and wrongfully increased beyond the sums and amounts authorized by the said charter of Kansas City, and in violation thereof. Also, the construction company is allowed in said pretended final estimate (for the tax bills) the sum of $2,817.60 for rock excavation, although in fact said construction company did not excavate 1,408.8 cubic yards of rock, as shown in said pretended final estimate, and did not excavate solid rock in excess of 500 cubic yards, and the price of excavating per cubic yard, to wit, $2, is largely in excess of a reasonable price therefor."

On April 15, 1902, and during the January term, 1902, the plaintiff filed its motion for an order of the court to refer the cause to a referee which order was duly made, and the cause referred to the Honorable Edward P. Gates, to hear the evidence and report the evidence to the court, together with his findings of facts and conclusions of law. The evidence was taken by the referee, and on the 22d day of June, 1904, the said Edward P. Gates, referee, reported his findings of facts and conclusions of law to the circuit court of Jackson county, Mo., at Kansas City. There was no dispute about the facts. The computation of the cost of construction of said sewer was made and apportioned to the property lying within such sewer district, with the exception of the right of way of the Kansas City Belt Railway Company, a portion of whose right of way it is admitted lies within sewer district No. 61. We do not deem it necessary to reproduce in detail the report of the referee. It is sufficient to say that his findings were in favor of the plaintiff for the full amount of the tax bills, with the exception of a reduction in the tax bills of $1,408.60, which the referee found should be deducted on account of excessive estimate and charge for rock excavation. Defendants filed exceptions to the report of the referee, which exceptions, at the April term, 1904, of said Jackson county circuit court, were overruled, and judgment upon the finding and report of the referee was rendered against said defendants in favor of the plaintiff, to all of which defendants excepted and still except. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. From the judgment rendered in this cause defendants prosecute this appeal, and the record is now before us for consideration.

Lathrop, Morrow, Fox & Moore, for appellants. Arthur Miller and Karnes, New & Krauthoff, for respondent.

FOX, J. (after stating the facts as above).

The record in this cause discloses but two legal propositions which are submitted for our consideration:

First. On the part of the appellants, it is earnestly insisted that the tax bills upon which this action is predicated are void for the reason that certain portions of the right of way of the Kansas City Belt Railway Company, which was within sewer district No. 61, was omitted by the board of public works in making the computation and apportionment of the cost of the construction of the sewer in sewer district No. 61 in Kansas City, Jackson county, Mo. In other words, the defendants contend that, by reason of the omission of the right of way of the railway company by the board of public works in making computation and apportionment of the cost of the sewer, the tax bills issued against defendants' land were illegally and wrongfully increased beyond the amount authorized by the city charter for the construction of the sewer.

Second. It is next insisted by the appellants that the referee having found the amount of the tax bills respecting the rock excavation was excessive, and in his findings deducted $1,408.60, under that state of facts the court committed error in allowing interest upon the amount of the tax bills for rock excavation as found by the referee.

Third. On the other hand, the respondents contend that under the provisions of the charter of Kansas City the right of way of the railway company was not subject to assessment for any portion of the cost of the construction of the sewer, and that the board of public works correctly omitted such right of way located within the sewer district from their computation of the cost of such sewers.

Fourth. It is next insisted that, even though such right of way should have been included in the computation and apportionment of the cost of the construction of the sewers, the omission of it by the board of public works from such computation and apportionment did not render the tax bills void.

Fifth. Upon the proposition that the court erroneously allowed interest upon the amount found to be due by the referee respecting the rock excavation, after deducting the amount which was found by the referee to be an excessive charge, respondent insists that, the defendants not having tendered the amount due upon that item of cost, the interest was properly chargeable against them for the amount which was due for the work which was actually performed as found by the referee in his report.

1. Directing our attention to the first proposition as to the omission by the board of public works to include in their computation and apportionment the cost of the construction of the sewers, the land embraced in the right of way of the railway company which was located within the sewer district, it is apparent that the defendants tried this cause upon the theory that such omission rendered all of the tax bills void. That this was the theory upon which the defendants proceeded in the lower court is obvious from the answer filed by them, as well as the contentions urged in this court upon that proposition by learned counsel for appellants. In other words, it is not sought in the trial court to plead and offer any proof as to errors or mistakes in the computation and apportionment by the board of public works of the cost of the construction of the...