Thornton v. City of Clinton

• Decision Date: 21 February 1899
• Citation: 148 Mo. 648,50 S.W. 295
• Parties: THORNTON et al. v. CITY OF CLINTON.
• Court: Missouri Supreme Court

50 S.W. 295

148 Mo. 648

THORNTON et al. v. CITY OF CLINTON.

Supreme Court of Missouri.

February 21, 1899.

MUNICIPAL CORPORATIONS — IMPROVEMENTS — SPECIAL ASSESSMENTS — LEVY — TAX BILLS.

1. Act March 30, 1887 (Sess. Acts 1887, p. 64), § 32, requiring that improvement assessments be levied as a special tax, bearing interest after 30 days from issuance, contemplates the issuance of tax bills.

2. Act March 30, 1887, § 32, declares that special assessments shall be paid as provided by city ordinance. An ordinance provided that, it certain tax bills were not paid, the contractor could sue on them in the name of the city. The contract provided that the city should issue the bills to the contractor, in form provided by the ordinance, "in full payment of the work done." Held, that the contractor could not object to the city's authority to issue the bills, nor require it to collect the tax and pay it over.

3. Under Rev. St. § 1495, requiring improvement assessments to be made for each block separately, on all lots on either side of the street, in proportion to the front foot, one lot owner cannot be made to bear the burden of another's default or exemption.

4. A contractor entering into a contract with the city to improve its streets is chargeable with notice of the requirements of the statutes and ordinances under which the contract is let.

In banc. Appeal from circuit court, Henry county; James H. Lay, Judge.

Action by B. B. Thornton and others, partners doing business under the style of Thornton & Co., against the city of Clinton. From a judgment for defendant, plaintiffs appeal. Affirmed.

In this suit plaintiffs seek to recover of defendant, which is a city of the third class, a general judgment for a balance due them on contracts for macadamizing, curbing, and guttering certain streets which bound the courthouse square in that city. The contracts were entered into in December, 1888, and the work was completed in August, 1889. Upon the completion of the work, the defendant city passed ordinances making special assessments against the abutting property to pay for the same, and issued to the plaintiffs special tax bills against the various lots and pieces of land fronting on the streets so improved, and included in the land so assessed, and against which special tax bills issued, the court-house square, which is the property of Henry county. These ordinances, making the assessments and directing the issuance of the special tax bills, purported to thus provide for payment of the work in pursuance of the contracts, and authorized the plaintiffs to collect the bills by action in the name of the city to the use of plaintiffs. All of these special tax bills were paid to plaintiffs, except those against the court-house square, which the county refused to pay. Plaintiffs, in the name of the city of Clinton, to their use, brought suit against the county on these special tax bills, to enforce them against the court-house square. The cause came to this court on appeal, and it was here decided that property owned by the county for that purpose was not subject to the special assessments, and the tax bills were not chargeable against it. City of Clinton v. Henry Co., 115 Mo. 557, 22 S. W. 494. That decision was rendered in this court May 8, 1893. On June 30th, following, plaintiffs petitioned the mayor and common council to make a reassessment, and to make such assessment for each block separately on all lots or pieces of ground on either side of the streets bounding the public square, except the public square itself. On September 5th, next, the mayor and council not having taken the action requested, plaintiffs filed a petition in this court, stating their case substantially as above, and praying a writ of mandamus to compel the mayor and council to make the reassessment as they (plaintiffs) had prayed in their petition above mentioned of June 30th; that is, assessing the whole contract cost of the improvements against the private property, exempting from the burden the public square. Upon filing this petition, an alternative writ of mandamus issued upon order of the chief justice in chambers. This alternative writ being served, the mayor and common council yielded obedience to it, and made the reassessment as required, and, upon their return showing such obedience, the suit ended with a judgment against them for costs. In complying with the exigencies of that writ the common council passed ordinances November 7, 1893, in due form, making the reassessments, and issued special tax bills, delivered to the plaintiffs for the whole contract price of the work, crediting upon the tax bill against each lot the amount that the owner had paid on the former assessment and tax bill, so that the balance for which this reassessment was made, and new tax bills issued, was the sum of the former assessments and tax bills against the public square, and amount to $8,022.32 of principal, which money has never been paid. In none of the ordinances passed was any provision made for the collection of the assessments, except declaring them a lien on the lots respectively named in the several assessments and tax bills, and authorizing plaintiffs to collect them by action in the name of the city to their use. When the first set of tax bills was issued to plaintiffs, they presented them for payment to the owners of the lots, respectively, and the same were paid and surrenderd to the lot owners, with payment in full indorsed on them, and certificate of such payment to the city clerk, who thereafter entered satisfaction of the liens on the register of liens, which the ordinance required to be kept, and gave certificates accordingly. After this, and before the reassessment in November, 1893, there were numerous sales of lots embraced in the reassessment. These sales were by warranty deeds, and the parties had at the time no notice of any unsatisfied claim for improvements. These last special tax bills have never been paid, and before the commencement of this suit the plaintiffs tendered them back to the mayor and common council, and demanded of them payment of the balance of the unpaid contract price.

Upon the trial, the original contracts under which the work was done were not produced, having been lost, but what purported to be copies were in evidence, offered by plaintiffs. There was testimony on the part of defendant tending to show that in each of the original contracts there was a clause in these words: "In no event is the city to be held liable for any sum whatever for work done under this contract." There was also testimony on the same part tending to show that the question of the liability of the county, or the power to tax the court-house square, was discussed between the contractors and the city officials before the contracts were finally signed, and that the contractors took legal advice on the subject, and became satisfied that the county was liable, and public square subject to the assessment, and agreed to take the risk involved in that question, and to look to the private property on the other side of the street for its half only of the improvement, and that this fact became of public notice, and was the cause of no remonstrance on the part of the property owners being filed, as might have been done under the ordinance, and the project defeated. But none of that testimony was weighed or entered into the finding of the trial court sitting as a jury. That court, before deciding the case, sustained plaintiffs' objection, and excluded that evidence. The written opinion of the learned judge who tried the case shows that in his mind it did not turn on those questions of fact, but on his construction of the statutes relating to the powers of the common council to bind the city by contract. The ordinance under which the city moved in the matter is shaped under the provisions of section 31 of the act of March 30, 1887, relating to cites of the third class, and directs assessments for payment of the work as in that act required, and, in addition, requires the special tax bills shall issue to the contractors on the assessments, which should be a lien on the property covered, and, as a penalty, if not paid within 30 days of presentment and demand, should bear interest at 10 per cent. per annum, and, if not paid in 60 days, might be collected in action in name of the city to the use of the contractors. The contracts in question conformed to the requirements of the ordinance, and provided that, upon the completion of the work, "the city of Clinton, Missouri, party of the first part, hereby agrees to levy by ordinance a special tax upon the lots, blocks, and pieces of ground upon the side or sides of the street or streets, avenues, alley, or square along and upon which the improvements may have been made, for the amount due the contractor on said contract, apportioning such amount among the several lots, blocks, or pieces of ground liable thereto according to the front foot abutting on each of the streets above described, in accordance with ordinance made and provided, charging each lot and piece of ground with its proper and lawful share of the amount due on said contract, which tax bills shall be issued under the seal of the city, in accordance with the ordinance made and provided in such cases, and shall be countersigned by the mayor, and delivered to the said Hulsey & Thornton, contractors, upon the completion of each street, in full payment for the work done." The finding and judgment were for the defendant in the circuit court, from which, after ineffectual motion for new trial, plaintiffs filed their bill of exceptions, and bring the case here for review.

Peak & Ball and J. D. Lindsay, for appellants. John I. Hinkle, Calvird & Lewis, Casey & Owen, James Parks & Son, and Jas. H. Lay, for respondent.

VALLIANT, J. (after stating the facts).

1. After the defendant city, in November, 1893, in obedience to the alternative writ of...