State v. Smith

• Decision Date: 15 June 1903
• Citation: 177 Mo. 69,75 S.W. 625
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CURTICE v. SMITH et al., Judges.<SMALL><SUP>*</SUP></SMALL>

75 S.W. 625

177 Mo. 69

STATE ex rel. CURTICE v. SMITH et al., Judges.^*

Supreme Court of Missouri.

June 15, 1903.

MUNICIPAL CORPORATIONS — SPECIAL TAX BILLS—VALIDITY—OBJECTIONS—FAILURE TO FILE WITH BOARD OF PUBLIC WORKS—CITY ORDINANCES — APPLICATION — CONSTITUTIONAL QUESTION—APPEAL — JURISDICTION OF SUPREME COURT—PREVIOUS DECISION.

1. Kansas City Charter, art. 9, § 23, authorizes suits to enforce payment of special tax bills for street improvements, and provides that the owner of any land charged with the payment of such bills shall, within 60 days from the date of issuance thereof, file with the board of public works a written statement of all objections which he has to the validity of such tax bills, or the doing of the work, etc., and that in any suit on any tax bill no objection shall be pleaded or proved, other than those that have been filed as required. Held, that such section was not limited in its application to tax bills which were merely irregular, but applied as well to bills which were absolutely void.

2. In an action on a special tax bill, defendant, who had failed to file his objections before the board of public works as required by Kansas City Charter, art. 9, § 23, contended that such section, in prohibiting defenses to tax bills unless objections were made before the board of public works, was unconstitutional. The trial court so held, and permitted defendant to litigate various objections to the validity of the bills, which were overruled, and judgment rendered for plaintiff. On appeal to the Court of Appeals, it was held that one of the defenses urged was valid, and that the bills sued on were therefore absolutely void. Plaintiff thereupon prayed an appeal to the Supreme Court on the ground that the constitutionality of the charter provision was involved, which was disallowed. Held, that since no judgment could be rendered in favor of defendant unless such charter provision was held unconstitutional, as he had waived all objections by failing to make them before the board of public works as required thereby, the constitutionality of such section was involved, and the Supreme Court had jurisdiction of the appeal.

3. Where the constitutionality of a city ordinance was expressly raised, and determined by the trial court, the right to appeal to the Supreme Court on the ground that the cause involved a constitutional question at once attached, notwithstanding such ordinance had been previously declared unconstitutional by the Supreme Court.

In Banc. Mandamus by the state, on relation of J. M. Curtice, against Jackson L. Smith and others, judges of Kansas City Court of Appeals. Peremptory writ granted.

Scarritt, Griffith & Jones, for relator. N. F. Heitman, for respondents.

MARSHALL, J.

This is an original proceeding by mandamus, seeking to compel the respondents, as judges of the Kansas City Court of Appeals, to transfer to this court the case of J. M. Curtice v. Frank F. Schmidt and Mollie Schmidt, now pending in said Court of Appeals. The return to the alternative writ asserts the jurisdiction of the Kansas City Court of Appeals over said cause, and contests the jurisdiction of this court.

The record discloses the true status of the controversy to be this: J. M. Curtice sued Frank F. and Mollie Schmidt in the circuit court of Jackson county upon a certain tax bill, issued April 29, 1897, by virtue of Ordinance 7599, authorizing the paving of Nineteenth street between Tracy avenue and Olive street; said tax bill being issued against lot 58 of Elder's addition to Kansas City, and owned by defendants therein. The answer of the defendants in that case is: First. A general denial, except as otherwise expressly admitted in the special defenses. Second. An admission that the plaintiff owns the tax bill, and defendants own the land. Third. That the tax bill is void because the work was not completed within the time provided by the contract. Fourth. That the tax bill is void because the contract required the contractor to observe the eight-hour ordinance of Kansas City. Fifth. That the tax bill is void because the ordinance authorizing the paving of the street specified six kinds of materials that might be used in paving the street, and that the owners of a majority in front feet of the lands fronting the improvement selected, as they had a right to do, Trinidad Lake asphalt as the material to be used for such paving (it being one of the six materials mentioned in the ordinance from which a selection was to be made), but that the board of public works disregarded the selection of the property owners, and designated Pittsburg, Kan., Vitrified Brick Company's vitrified brick as the material to be used. Sixth. That, after the said board wrongfully designated such vitrified brick, specifications for work were prepared, and a contract therefor was let, and that the contract was confirmed by ordinances of the city, and that such designation, specifications, contract, and ordinances are illegal and void (1) because they are contrary to the Kansas City Charter, requiring said pavement to be let to the lowest and best bidder; (2) because they were unauthorized by the Kansas City charter, and in violation thereof, in excluding from use in the pavement in question all vitrified brick of similar quality, except Pittsburg, Kan., Vitrified Brick Company's vitrified brick. Seventh. That, prior to the passage of the ordinance authorizing the improvement, the board of public works made a pretended designation of the materials which the property owners might select from, but that said designation did not comply with the charter of Kansas City, and that the details specified in the said designation of such materials "all specify some particular, special kind of material in such way as to promote monopoly and prevent competition, and that such designation violates the charter of Kansas City, which requires such work to be let to the lowest and best bidder." The reply is a general denial, with a special plea as follows: "Further answering, plaintiff states that none of the defendants nor any owner of the tract of land described in the petition and in the tax bills therein referred to, nor the owner of any interest therein, did within sixty days from the issue of the said tax bills described in the petition file with the board of public works of Kansas City a written statement of each and all objections which he or they had to the validity of such tax bills, the doing of the work mentioned in said tax bills, the furnishing of the materials charged for, the sufficiency of the work or materials therein used, or of any mistake or error in the amount thereof, or a statement of any of the objections of facts alleged in the amended answer, and that by reason of the premises the defendants ought not to be heard to plead or prove all or any of the facts alleged in their amended answer." When the case came on for trial, the plaintiff introduced a resolution of the board of public works relating to the issuance of special tax bills, and the special tax bill sued on, and then rested. The defendants offered in evidence the ordinance authorizing the improvement, and also section 811 of the Revised Ordinances of Kansas City for 1898, regulating the advertising for bids for public work, and requiring the time for the completion of the work to be specified. Thereupon the following proceedings were had: "By Mr. Scarritt: We object to the introduction of any evidence on behalf of defendants relative to objections to the tax bills sued on, for the reason that no objections thereto have been stated in writing and filed with the board of public works of Kansas City by the defendants, or any of them, or those under whom they claim, within sixty days after the date of the issue of such tax bills; and especially we object, for the same reasons, to any evidence as to the petitions addressed to the board of public works in respect to the material with which the street should be paved, and also as to the time consumed in the execution of the work. (Which objection was by the court overruled, to which ruling of the court plaintiff then duly excepted.) By Mr. Heitman: It is admitted that no objection whatever to the tax bills sued on was stated and filed with the board of public works of Kansas City within sixty days after the issue of those tax bills." The court then permitted the defendants to introduce evidence in support of their several defenses, and also heard evidence offered by the plaintiff bearing upon the several defenses.

At the close of the evidence the plaintiff asked the court to declare the law to be as follows:

"(1) The court declares the law to be that under the pleadings and the evidence the finding and judgment should be for the plaintiff.

"(2) The court finds the facts to be, under the pleadings and admissions of the parties, that none of the defendants, nor any owner of the land described in the petition, or of any interest therein, did, within sixty days after the date of the issue of the tax bill sued on, file with the board of public works of Kansas City a statement of any objections which he or they had to the validity of the tax bill sued on, the doing of the work mentioned therein, the furnishing of the materials charged for, the sufficiency of the said work or materials therein used, or any mistake or error in the amount thereof.

"(3) The court declares the law to be that all the evidence offered and introduced tending to prove that the work of paving Nineteenth street, for which the tax bill sued on was issued, was not completed within ninety days after the contract therefor became binding, is irrelevant and immaterial, under the pleadings and admissions of the parties, and is not considered by the court in determining the issues in this case.

"(4) The court declares the law to be that the contract between Kansas City and Fred Feigel for paving Nineteenth street, in evidence, is a valid contract; that...