Williams v. Hybskmann

• Decision Date: 08 January 1923
• Docket Number: No. 14543.,14543.
• Citation: 247 S.W. 203
• Parties: WILLIAMS v. HYBSKMANN et al.
• Court: Missouri Court of Appeals

247 S.W. 203

WILLIAMS v. HYBSKMANN et al.

No. 14543.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Suit by O. B. Williams against Ralph Hybskmann and another. Decree for plaintiff and defendants appeal. Affirmed, and case certified to Supreme Court.

Clarence S. Palmer, of Kansas City, and R. S. Robertson, of Sedalia, for appellants.

W. M. Bowker, of Nevada, Mo., for respondent.

TRIMBLE, P. J.

Eldorado Springs (a city of the Fourth class) created two sewer districts, numbered 6 and 7 and, after authorizing the construction of a district sewer in each, let a contract therefor to the defendants, the cost of each sewer to be paid for by special tax bills issued on the property in the respective districts. The sewers were built and the tax bills were issued. Plaintiff, owner of a lot in each district on which a bill was issued for the sewer in that district, brought this action in equity to cancel the bills.

The petition is in two counts, the first seeking the cancellation of the bill on the lot in district No. 6, and the second to cancel the bill on the property in district No. 7, but, as the grounds of cancellation are the same in each, there is no need for any further reference to there being two counts. The chancellor, after hearing the case and holding it under advisement for a time, rendered a decree canceling the bills, but it does not disclose the grounds upon which the bills were declared void. The defendants have duly appealed.

The petition sets forth 12 different grounds upon which the bills were asked to be canceled. The answer to each count contained a general denial and a plea that plaintiff knew the sewers were being built, and would greatly benefit the property and others, but failed to take action to prevent the expenditure of money in constructing the work, and that he was thereby estopped from maintaining the suit. This the reply denied. The case went on change of venue from Cedar county, where it originated, to Bates county where it was tried with the result above stated.

The third and fourth grounds were that the work was not done according to specifications, and that the sewers were so carelessly constructed as to greatly increase the cost thereof. But, as the record discloses no evidence in support of either of these, they may at once be eliminated. The same disposition may be made of the seventh, eighth, tenth, and twelfth grounds for the same reason, or because they are mere general statements of the other grounds. This leaves six grounds upon which the court may have based its action.

The statutory provisions authorizing a city of the Fourth class to construct sewers is found in sections 8482 and 8483, R. S. 1919. Section 8483 was repealed and a new section enacted in lieu thereof April 7, 1921 (see Laws 1921, p. 503), but, as the sewers in question were erected in 1920, no notice need be taken of the new statute. Section 8482 provides for public sewers, while 8483 authorizes the construction of district sewers. The first ground upon which the tax bills in this case are attacked is that the two sewers, although called "district sewers" by the city, are in reality public sewers, and should have been paid for by the entire city, and not merely by the property owners in the districts. Allied with this contention, and therefore proper to be disposed of along with it, is the second ground, namely, that the establishment of the sewer districts and the construction of the sewers therein was unreasonable, arbitrary, and illegal. The basis of the first charge is that the two so-called "district sewers" practically ran across and drained the whole town; that the two public school buildings were situated one on one side of the town and the other on the other; that the sewers were so located as to run from these buildings respectively; that this was one of the principal if not the main purpose of the sewers, since the State Board of Health would not allow the school board to maintain the schools if sewer facilities were not provided; and it was urged that it is unfair to the property owners in these two districts to compel them to pay for sewers which are a public improvement for the benefit of the whole city. The basis of the second complaint is that years ago a system of private sewers had been constructed in a portion of the city in which plaintiff's properties were located, and afterwards the city had compelled the property owners therein, including plaintiff, to connect with these sewers, which they did. The two new district sewers merely connected with these former sewers for an outlet, and did not afford the persons in said former district any benefit whatever; also that many persons in said sewer districts were without water facilities, and the sewers could not benefit them, and that, while mere benefit alone or the lack of it is not a determining factor, yet these matters may be taken into consideration in determining whether the action of the city was arbitrary or unreasonable. With reference to this second ground, it may be said that the establishment of the private sewers, before the city saw fit to Proceed under the statute, only showed the necessity for sewers, and the fact that sewers were thus established by individual action should not hamper the city in its power to establish sewers for all persons in that portion of the city.

As for certain portions of the districts not having water facilities, the fact that there was no sewerage may be the reason for such lack, and, if that be a valid reason, then the opportunity for obtaining these advantages would be forever forbidden by these objections moving in a vicious circle. It does not appear that the property in the territory already possessed of sewer advantages could have been made into a separate district of its own and the others created outside of it. The construction of the private sewers could not interfere or hamper the city in the exercise of its power. Municipal Securities Corp. v. Met. St. Ry., 196 Mo. App. 518, 196 S. W. 400.

With reference to both of these objections, it may be observed that the burden is on plaintiff to establish the invalidity of the tax bills. They are prima facie presumed to be valid, and this is so as well in an equity suit to cancel them as in any other. Collins v. A. Jaicks Co., 279 Mo. 404, 214 S. W. 391. The establishment of sewer districts is a function intrusted by the statute to the Board of Aldermen, the legislative body of the city, and cannot be collaterally attacked. McGhee v. Walsh, 219 Mo. 266, 283, 155 S. W. 445; Prior v. Buehler, etc., Const. Co., 170 Mo. 439, 448, 71 S. W. 205. Unquestionably, in the absence of evidence of fraud or proof that the action of the city is manifestly arbitrary or unreasonable, or that the assessment is palpably unjust or oppressive, the tax bills should not be invalidated on such grounds. Jennings, etc., Imp. Co. v. St. Louis, 257 No. 291, 165 S. W. 741. The evidence does not manifestly disclose that these are public sewers. They afford sewer facilities, it is true, to the public school buildings, but that fact of itself does not convert it into a public sewer. They serve the tracts within the districts, and there is no evidence that the public, and not the individual, is served. State ex rel. v. Wilder, 217 Mo. 261, 274, 116 S. W. 1087. The outlets of these sewers are into the sewer previously built, and do not form a public outlet for the town. The fact that they happen to drain a large portion of the city does not change them into public sewers. Sasse v. Barkwell (Mo. App.) 195 S. W. 542. The discretion vested in the city legislative authorities should not be interfered with by the courts unless it is "affirmatively shown to have been exercised arbitrarily, fraudulently or oppressively." McMurry v. Kansas City, 283 Mo. 479, 493, 494, 223 S. W. 615, 619.

The fifth ground of complaint is that the work was authorized by separate ordinances with separate plans and specifications; for each sewer, but the city accepted bids for the construction of both sewers, and not separate bids for each, and let one contract upon one bid for both. The only evidence on this matter appears on the city records, wherein it is recited that before the bids were opened one of the bidders stated that "he desired his bids on the two sewers, 3 and 7, to be taken as a whole, and that no bid be taken and accepted for one sewer alone, but that both contracts be let to the same bidder. This condition was agreed to by all bidders and by the board." It further appeared that one of the bidders had no bid on one of the items, which was in direct violation of the terms under which the bids were submitted. Hence the entire bid was discarded or not considered. The record then recites that the defendants were found to be the lowest and best bidders, and their bid was accepted. It does not appear: what the rejected bid was, it not being offered in evidence. There was no evidence of any lower bid being offered, or that by receiving the bids separately on each sewer the price would have been less. There was no fraud attempted or claimed to be shown, and no harm to any property owner in either district. In the absence of any evidence showing injustice, we do not feel that the tax bills should be invalidated upon this ground. Gibson v. Owens, 115 Mo. 258, 268, 21 S. W. 1107; Welsh v....