Miners' Bank of Carterville v. Clark

*133 FARRINGTON, J. The plaintiff in this case is the owner of a tax bill issued for street paving by the City of Carterville, Missouri, against lot 295 and the East 18 feet of lot 296 S. C. M. & S. Co’s 5th Addition to the city, and brought this action asking that the defendants be enjoined from removing the buildings standing on the lots, stating that if the improvements were removed the value of the property would be reduced. A decree was entered granting the relief prayed for. An appeal from that decree was taken, and it is contended here that the court erred, first, because the tax bill on its face showed that it was issued against all of one lot and part of another, and for that reason was void, citing in support of that proposition the cases of Cameron v. Pixlee, 211 S. W. 96; Barber Asphalt Paving Co. v. Peck, 186 Mo. 506, 85 S. W. 387. We hold with the respondent that the rulé laid down in these cases does not apply in this case, for the reason that such an attack made in the case at bar is collateral, and the suit not being one where the validity of the tax bill is directly involved such collateral attack will not be permitted. Appellants also cite City of St. Louis v. Brinckwirth, 204 Mo. 280, 102 S. W. 1091. This suit is likewise a suit.for the direct enforcement of the tax bill, and is one in which it is proper to attack the validity of the tax bill. It is well settled law that special tax bills are primafacie evidence of liability. [See Wolfort v. City of St. Louis, 115 Mo. 139, 21 S. W. 912; Hill-O’Meara Const. Co. v. Sessinghaus, 106 Mo. App. 163, 80 S. W. 470.] *134 Iii Page & Jones on Taxation by Assessment, page 1000, it is said: <£A proceeding to obtain an injunction against the enforcement of an assessment is a collateral attack.” See, also, Gray v. Bowles, 74 Mo. 419, which holds that a judgment rendered on a tax bill is not subject to collateral attack. It does not follow, therefore, that merely because the tax bill on its face shows that it was issued to cover more than one lot that it is necessarily void. There are a number of cases holding that a single tax bill may be issued against more than one lot provided the owner has disregarded the lines .of his property and has treated several lots as one tract. The Council of the City of Carterville exercising at least giiosi-judicial functions in issuing this tax bill; will be presumed to have issued it in accordance with the law until it is shown in a direct proceeding that they have not done so. In the face of the tax bill, however, is shown the amount of the assessment per front foot that the improvement cost, which appellants contend is in excess of the amount the law permits it, being a city of the third class, to assess by special tax bill against the property. The ordinance authorizing the work was passed in 1919, and the ordinance levying the special tax in 1920. Appellants therefore point to sections 8323 and 8324, Revised Statutes 1919, and section 8301, Revised Statutes 1919. Their contention is that section 8301 repealed the provisions of sections 8323 and 8324, and that the Council had authority to incur only up to the amount of. sixty cents per front foot per annum for the work that was done in this case. The evidence in the case shows that this tax bill was issued for grading, surfacing and paving with concrete the street upon which the lots involved in this action abut, and that it was in no sense a repairing or resurfacing job. Appellants rely qn what was said in the case of Asel v. City of Jefferson, 287 Mo. 195, 229 S. W. 1046. On pages 207 and 208, the court in discussing these sec *135 tions of the statute heretofore referred to, held that the Act of 1919 necessarily repeals the Act of 1911. As we understand that case, it holds merely that that portion of sections 8323 and 8324 which related to the doing of the character of work that was done ip that case, which was, as the record shows, the repairing and resurfacing of a street, and where the amount fell within sixty cents, would he controlled by the statute of 1919. It did not attempt to repeal the entire former statute, for had it done that it would practically have stopped all character of paving in cities of the third class except that which would be the repairing and resurfacing of a street. It is common knowledge that no street can be graded and paved with concrete the first time at an expense of sixty cents per front foot. Section 8301, Revised Statutes 1919, only by implication repeals any portion of sections 8323 and 8324, and it is a well-settled rule of construction that where an old law is repealed by implication it will be repealed only to the extent of making it consistent with the new law. [See 36 Cyc. 1037. See, also, State ex inf. Major v. Amick, 247 Mo. l. c. 290, 152 S. W. 591; Wrightsman v. Gideon, 247 S. W. l. c. 137; State ex rel. v. Clark, 275 Mo. l. c. 102, 204 S. W. 1090.] Applying the rules laid down in the above cases to the instant case, we must hold that the City Council acted within its rights in proceeding under sections 8323 and 8324, Revised Statutes 1919, when they undertook to provide for the grading and'paving of this street, which was in no sense a repairing of an old street, or repairing or resurfacing a street having already been paved, and that the tax bill is therefore not void on its face because it shows that a greater sum than sixty cents per foot was levied. We further hold that the tax bill, apparently good on its face, is prima-facie evidence of its validity and that its validity cannot be attacked collaterally where its validity is only incidentally involved. The judgment is affirmed. Cox, P. J., and Brad ley, J., concur.