The Barber Asphalt Paving Company v. Field
| Decision Date | 11 January 1909 |
| Citation | 111 S.W. 907,134 Mo.App. 663 |
| Parties | THE BARBER ASPHALT PAVING COMPANY et al., Respondents, v. RICHARD H. FIELD et ux., Appellants |
| Court | Kansas Court of Appeals |
May 26 1908.
Rehearing Granted 134 Mo.App. 663 at 668.
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
REVERSED AND REMANDED (with directions).
Judgment affirmed.
R. H Field for appellants.
(1) The statutes governing Westport as a fourthclass city undoubtedly authorized and required a levy of the cost of a street pavement, by ordinance, against the abutting lands, before any taxbill was authorized to be issued or become a lien on any of such lands. R. S. 1899, secs. 5982, 5983, 5984; Westport v. Mastin, 62 Mo.App. 647; Westport v. Jackson, 69 Mo.App. 148. (2) It is alleged in the petition, therefore is conceded, that the board of aldermen of Westport made no levy by ordinance; also that no taxbill was issued by the city engineer of Westport against lot 2, block 49, Hyde Park. Had Kansas City, as successor of Westport, the power to enact the ordinance No. 9418, levying this assessment, and to issue the taxbill, sued on, against this lot omitted in Westport proceedings? (3) The power given to Westport, in sections 5982, 5983 and 5984, R. S. 1899, to levy the cost of a street paved, by special assessments against abutting lands was not continued nor transferred to Kansas City by the extension of Kansas City's limits, because both the statute authorizing the dissolution of the corporate existence of Westport and the Kansas City charter failed to reserve any of the charter powers of Westport for exercise by Kansas City. Harris v. Water Valley, 28 Miss. 659; Barkley v. Levee Com'rs, 93 U.S. 258; Dallas v. Ellison, 10 Tex. Civ. App. 28; County of Menard v. Kincaid, 71 Ill. 587; Cicero v. Hill, 193 Ill. 229; Vance v. Rankin, 194 Ill. 625; Sigur v. Crenshaw, 8 La. Ann. 401; Jefferson City v. Edwards, 37 Mo.App. 617; Kansas City v. Clark, 68 Mo. 588. (4) Kansas City's charter power to issue taxbills, for street pavement, is for work done under order and contract of Kansas City; not for work done under order and contract of Westport. K. C. Charter, art. IX, sec. 15; 13 Mo.App. 412; K. C. Charter, 1889, art. XVII, sec. 10; Haesler v. Sammelman, 101 Mo. 619; State ex rel. v. Fisher, 119 Mo. 351; St. Louis v. Laughlin, 49 Mo. 559; St. Louis v. Ag. & Mech. Assn., 108 Mo. 221.
Scarritt, Scarritt & Jones, for respondent, filed argument.
Action to enforce the lien of a special taxbill issued on account of the paving of a public street on which abuts the lot sought to be charged. The cause is here on the appeal of defendants, owners of the lot, from a judgment sustaining the lien.
In 1897, Wyandotte street in Westport, a city of the fourth class, was paved, pursuant to proceedings conforming to the law in every particular and, on November 18th of that year, the cost of the improvement was regularly apportioned and assessed against the property the law required to be charged therewith. Taxbills then were issued to the contractor (plaintiff), among them one for Lot 1, Block 49, Hyde Park. This lot did not abut on the street and, therefore, was not subject to assessment, and its inclusion was the result of a mistake in the description on the part of the officer who made out the bills. He should have issued the bill against Lot 2, which fronted on the street paved and was subject to assessment. On December 2, 1897, shortly after the taxbills were issued, the territory embraced within the corporate limits of Westport was legally incorporated with Kansas City by an extension of the limits of the latter city under the statutory provisions now appearing in section 6399, Revised Statutes 1899, which, in part are as follows:
"That should such city by such extension of its territorial limits include any portion of any incorporated city, town or village, such extension shall be made to include the whole territory of such incorporated city, town or village, and upon such extension being made, the corporate existence of such incorporated city, town or village so included in such extension shall, ipso facto, cease, and all property and rights of every kind and nature belonging to and vested in such incorporated city, town or village, shall, by operation of law, at once pass to and vest in the city making such extension of its limits, and it shall be the duty of all officers and employees of such incorporated city, town or village having custody or control thereof, to surrender and deliver the same to such city so extending its limits; and such city shall, also, by operation of law, become liable to pay all debts and liabilities of such incorporated city, town or village."
The mistake in the taxbill was not discovered until after the extension was accomplished. Kansas City then passed an ordinance to correct the error and, pursuant thereto, issued to plaintiff a taxbill against the lot intended to be assessed. This bill is the subject of the present action. Defendants concede that had the city of Westport remained an independent municipality it would have been vested with the power to correct the error, but contend that, as the power died with the dissolution of the corporate existence of the city, the attempt of the absorbing city to exercise it being ultra vires must be held void. Should we sanction this contention, the result would be to free defendants' lot entirely from the just burden of paying its proportional share of the cost of the improvement.
Defendants argue that by the absorption of Westport, none of its charter powers and rights were conferred upon Kansas City except...
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