Adkins v. Chicago, Burlington & Quincy Railroad

Gill J. — The right to recover on these tax bills, sued ■ on, is based on the provisions of article 8 of the Kansas City charter. Acts 1875, p. 250, et seq. Section 1 empowers the common council to have graded any street at the expense of abutting property, provided the same is petitioned for by the resident owners of the majority in front feet on such street, etc. Section 2 provides for the apportioning of the cost of such work, that of the sidewalk to be charged to the property according to its frontage on the particular sidewalk so graded, while the grading of the roadway is to “be charged as a special tax on all the property on both sides of such street or part thereof graded, within the following limits, namely : “In case any of the land fronting on the street * * * be laid off into lots and blocks, the property so laid off * * * back to the center line of the block, or blocks, shall be so charged whether fronting on the street or not,” but the council may prescribe such limits simply to the alley or alleys in such blocks, and in case such property shall not be laid off into lots or blocks, then the limit of charge is fixed at one hundred and fifty feet back from such graded street. [660] Such property thus liable to be taxed is charged proportionately to its assessed value, as fixed by the city assessor, excluding therefrom all improvements. Section 3 directs the assessment which shall be furnished by the city assessor to the city engineer, and when the grading is completed the duty is imposed on this officer to “compute the cost thereof, and apportion such cost among the several lots or parcels of property to be charged therewith * * and charge each lot, or parcel of property with its proper share of such cost’ ’ according to such assessed value in case of grading the roadway, and according to the frontage for cost of grading sidewalk. It is then further imposed on the city engineer, after so apportioning and charging the cost of the work, to make out and certify special tax bills, according to such apportionment, in favor of the contractor, each tax bill to contain a description of the lot or parcel of land, thus by it charged, sufficiently full and correct to identify the same. These tax bills, when so issued, are made a lien on the property thus charged, and in case of a suit thereon such “certified bill shall be prima facie evidence of the validity of the bill, of the doing of the work, and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill” I. The first and principal matter complained of by the defendant is, that the circuit court erred in admitting the tax bills, sued on, in evidence. There is no merit whatever in this contention. These tax bills are properly certified, and contain all that is necessary. And being so certified are made by the law "prima facie evidence of the validity of the bill, of the doing of the work, etc., and of the liability of the property to the charge stated in the bill.” The numerous cases cited by defendant’s counsel under this head are scarcely applicable to this case. The following authorities are more controlling and sustain the ruling of the trial court: Waud v. Green, 7 [661] Mo. App. 82; Stifel v. Dougherty, 6 Mo. App. 441; St. Louis to the use of Lohman v. Coons, 87 Mo. 44; Seibert v. Allen, 61 Mo. 482-486; Neenan v. Smith, 50 Mo. 292-294; Ess v. Bouton, 64. Mo. 105; City of Linneus v. Locke, 25 Mo. App. 407. II. The further objection made, to-wit, that the petition did not state facts sufficient to constitute a cause of action, is equally groundless. The charter, referring to the institution of the suit on such tax bills, provides : ‘ Tt shall be sufficient for the plaintiff to plead the making and issue of the tax bills sued on, giving the date and contents thereof, and assignment thereof in case of assignment, filing the same, and allege that the party, or parties, made defendants, own, or claim to own, the land charged, or some estate or interest therein, as the case may be.” The counts of this petition conform, in every substantial detail, to the requirements of the statute. Although not indicated by quotation marks, or containing words admitting the contents of the tax bills to be as recited in the petition, yet the allegations are almost a literal copy of such tax bills. III. So too the demurrer to the evidence, interposed by the defendant, was properly overruled. The tax bills, duly certified and introduced, made a prima facie case for the plaintiff. The burden then was imposed on the defendant to disprove the case made, or submit to a judgment against it. See authorities cited supra. (1) It is true, as contended by defendant’s counsel, that the city council was by law, in duty bound, to determine by ordinance that portion of the streets which should be considered the sidewalk, and it appears that as to Genesee street, where this grading was done, there was no such ordinance passed. There was then existing, however, at the opening of such street the general ordinance providing, in effect, that where not otherwise directed, the sidewalk on each street or avenue should be in width, on each side thereof, the one-fifth of the [662] entire street, and sncli ordinance applied not only to streets then existing, but as well to all streets thereafter to be opened, except where specifically otherwise provided. (3) Defendant’s further contention is, that there was no evidence to show that the work charged for was petitioned for by a majority in front feet of the resident property owners, as the charter requires. As already stated the tax bills are prima facie evidence of this fact. Besides the common council, in the ordinance to grade Genesee street, found that fact in these words, to-wit: “And the said common council finds and declares that said work has been petitioned for, and the petition published,” etc. This finding and declaration by the common council is made conclusive for all purposes. The defendant can not, therefore, dispute such fact, City Charter, Acts, 1875, see. 8,, p. 254; Denison v. City of Kansas, 95 Mo. 430. (3) There can be no longer any doubt, or question raised by this defendant, as to the legality of the proceedings to open and extend Genesee street. State ex rel. C. B. & Q. R. R. v. City of Kansas, 89 Mo., p. 34. We have examined and considered every point urged for a reversal of this cause, and have here discussed all that we think deserves notice in an opinion. We detect no error, and therefore affirm the judgment of the circuit court. The other judges concur