Waud v. Green

• Decision Date: 15 April 1879
• Citation: 7 Mo.App. 82
• Parties: JOHN WAUD, Respondent, v. CHARLES GREEN, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 82

JOHN WAUD, Respondent,

v.CHARLES GREEN, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 15, 1879.

1. A duly certified special tax-bill makes out a prima facie case for the plaintiff, implies a valid ordinance, and shifts the burden of proof.

2. A special tax-bill certified by the city engineer of the city of St. Louis, July 11, 1877, is not on that account invalid, in the absence of testimony of the appointment and qualification of a street commissioner to supersede the engineer under the new charter.

APPEAL from St. Louis Circuit Court.

Affirmed.

G. A. MADILL and T. E. RALSTON, for appellant: Without proof of an ordinance authorizing the contract, the tax-bill will not support a judgment.-- Haegele v. Mallinckrodt, 46 Mo. 577; Charter 1871, Art. VIII., sects. 7, 15; Rev. Ord. 1877, pp. 99, 101; Sess. Acts 1866, p, 298; Charter 1877, p. 98. The strict pursuance of the statutory requirement in all its substantial requirements, is a condition precedent to the validity of every local assessment.-- Sharp v. Spier, 4 Hill, 76; Nevins v. Alkin, 36 Ind. 189; Warren v. Grand Haven, 30 Mich. 24; Sibley v. Smith, 2 Mich. 486; Helbish v. Homer, 58 Pa. St. 93.

BAKEWELL, J., delivered the opinion of the court.

This action was begun before a justice of the peace, on a special tax-bill. The bill is dated, “City Engineer's Office, 11th July, 1877,” and is in the form used before the adoption of the charter of St. Louis now in force, and which went into effect, in contemplation of law, on October 22, 1876. It gives the name of the contractor and of the owner charged, describes the property, sets forth the character of the work and the amount due for the work, refers to the charter and ordinance under which the work was done, and is certified as follows:--

“I hereby certify that the above-mentioned work was done and the materials furnished by the above-named contractor; that the rates or prices therefor are correctly stated; that the aggregate cost thereof, to wit, eighty 35/100 dollars, is hereby, and by law, charged and assessed as a special tax and lien upon the property above described, in favor of said contractor; and that for the payment and discharge of the same the said Charles Green, the owner thereof, is liable, according to the provisions of the charter and ordinances of the city.

CHARLES PFEIFFER, City Engineer.

Registered and countersigned: E. L. ADREON, Comptroller.

Authenticated: HENRY FLAD, President of the Board of Public Improvements.”

On trial anew in the Circuit Court, the plaintiff offered in evidence the contract between the plaintiff and the city of St. Louis under which the work was done, dated June 27, 1876, which recites that the city engineer, by virtue of authority in him vested by ordinance, and in pursuance of public advertisement, has let and awarded to the plaintiff the paving and repairing of sidewalks in St. Louis within specified limits, whenever and wherever directed by the city engineer, from July 1, 1876, to July 1, 1877. The plaintiff is to repair and pave sidewalks within the limits named, whenever directed by the city, with the materials and at the prices set out, the work to be paid by special tax-bills issued by the city engineer and certified by the comptroller. The contract provides that orders for repairing the sidewalks shall be given at the city engineer's office every morning, and each order is to be carried out within twenty-four hours under a penalty of twenty-five per cent deduction. The contract is made subject to the existing city charter and ordinances, and the city engineer has the right to extend the time for the completion of the contract. The plaintiff testified that the work sued for was done under this contract. The signatures to the tax-bill were proved, and it was admitted in evidence against the defendant's objection. The measurement was proved to be correct, and it was shown that the work was done in 1877. The plaintiff also read in evidence sect. 3, art. 1, chap. 13, of the Revised Ordinances of 1871, which provides that the city engineer is required to enter into a contract in each year, for one year from July 1st, for construction and repair of sidewalks, and also provides for paying the cost by special tax-bills. No evidence was offered for the defendant. The cause was tried by the court, and there was judgment for the plaintiff. The defendant appeals.

It is contended by appellant that the tax-bill was not competent, because not certified as required by sects. 35, 41, art. 4, and...