City of Westport ex rel. Tomb v. Jackson

Smith, P. J. Statement. With the exception of the names of the parties and the amount involved this action is an. exact prototype of that of the City of Westport ex rel. Whiting v. Mastin, reported in 62 Mo. App. 647. The statement of that case will suffice for this. The defendant, in the present case, had judgment in the circuit court, and the relator has appealed. In the opinion in Mastin’s case it is said “that it is- practically conceded that the special tax must be levied by the board of aldermen, by ordinance, and the question made is, has it-been so levied within the meaning of the charter?” As we understand it the relator does not find fault with our reasoning and conclusion in so far as it is based on the foregoing concession. The relator does not make a like concession in the present case. His contention is that if the city engineer computed the cost of the work and apportioned the same among the several lots as required by the provisions of section 1592, Revised Statutes, that this was a levy within the meaning of that section, and that therefore the special tax in question does not depend for its validity upon whether or not the board of aldermen first passed an ordinance authorizing the levy and collection of the same against the owner or occupier of the lots to be charged therewith. [152] History of statute. Whether or not this contention shall be sustained depends upon the construction to be placed upon that section. In seeking the true construction to be given this statute it may be helpful to notice those antecedent to it and of which it is the outgrowth. The first of these is the act of May 15, 1877, relating to cities of the fourth class. Sess. Acts, 1877, p. 173. By the twelfth section of the act it was provided that the board of aldermen should have power by ordinance to levy and collect a special tax on the owner or occupier of the lot on any street for the purpose of improving such street, etc. This section was with some amendment, not necessary to notice, carried into the revision of 1879, becoming section 4942 thereof. The last named section was incorporated into the revision of 1889, becoming section 1592. It will be seen by comparison of the two sections that several material changes were wrought in the former by the passage of the latter. Such latter provides that when the authorized improvement shall be completed, the city engineer shall compute the cost thereof and apportion' the same among the several lots or parcels of land to be charged therewith, and charge each lot or parcel with the proper share of such costs according to the frontage of each lot or parcel. And in the same connection it further provides that the engineer, after so apportioning and charging the costs of any improvement, shall make out and certify special tax bills, according to such apportionment, and charge in favor of the contractor to be paid, against the several parcels of land charged. And it is further provided in the latter part of the section that all tax bills issued shall be registered by the clerk in his office and by him delivered to the parties in whose favor issued for collection. It will be observed that in the latter section is retained the provision conferring upon the [153] board of aldermen tbe “power by ordinance, to levy and collect a special tax on tbe owner or occupier of tbe property” for the purpose of making street improvement. Construction: rules: repugnance. It is ably and forcibly argued that there exists an irreconcilable repugnance between the provision just quoted and that conferring upon the city engineer, after the work is completed, the power of computing and apportioning the costs thereof. It must be conceded that if there is an irreconcilable conflict between these provisions of the section, that the last would stand and the others, which can not stand with them, go to the ground. Brown v. Commissioners, 21 Pa. St. 42; Harrington v. Trustees, 10 Wend. 553; 23 Am. and Eng. Ency of Law, 311. But there is another well settled rule of construction of equal pertinency which requires that we shall construe statutes so as to avoid, if possible, a conflict between the different parts thereof. In Morse v. Westport, 110 Mo. 508, it was said: “To hold that the legislature intended to restrict cities of the fourth class to that kind of paving known as macadamizing is not only to deny to the word building its ordinary meaning, but to go further and deny to it any meaning whatever, which would be the case if the construction contended for by plaintiffs were allowed to prevail. But to allow such a construction would be going counter to a very familiar rule of construction which accords, if possible, some effect to every word of a statute.” In City of St. Louis v. Lane, 110 Mo. 258, it was said: “The reading for which defendant contends would be perfectly apparent if we eliminated the words ‘in said 'block;’ * '* * but if those words ‘in said block, are to stand and be given some significance, we think they must be taken to simply be an intention to subject all [154] the property in the block, abutting on the completed alley, to the charge for benefits for opening the same. The familiar rule, that all the words of a law must have effect rather than that part should perish by construction, is fairly applicable.” In Hicks v. Jamison, 10 Mo. App. 35, it is held, “where a statute can be construed consistently with the literal meaning of the words used, the courts will not give it another construction on the theory of a mistake.” And in State v. Richardson, 35 Mo. 385, it was said: “Statutes should be so construed as to avoid if possible a conflict between different parts thereof,” Special Tax Bills: fourth class cities: street improvement: construction on statute. We think this section, without wresting the words thereof .from their appropriate meaning, should be construed to mean, first, that when the work authorized by the ordinance has been completed, that it becomes the duty of the engineer in ehar&’e thereof to compute the cost thereof and apportion the same among the lots to be charged therewith, according to the frontage; and, second, that after this function is performed by him it becomes the duty of the board of aldermen to pass an ordinance directing that the special tax; so computed and apportioned by said engineer, be levied and collected of the owners or occupiers of the abutting lots; and, third, that when this ordinance is passed, it then becomes the duty of the city clerk to register the tax bills already made out by the engineer and deliver the same to the parties in whose favor issued for collection. This construction would avoid the apparent conflict between the different parts of the section; it would give effect to all the words of the section, leaving none to perish. The section in its entirety would be thus left to stand intact. We can not uphold the plaintiffs’ construction that the action of the city engineer in computing and [155] apportioning the cost of the work according to the frontage of the lots constitutes a levy, unless we first eliminate from the section the very words with which' it begins. Our interpretation of that part of it requiring of the city engineer the performance of certain ministerial duties accords to it a reasonable field in operation. According to our view of the section the levy can not be made by the board of aldermen until the engineer has made the computation required of him. We can not yield our assent to the assertion that there is no place in the whole proceeding contemplated by the section for the board of aldermen to make a levy of the special tax by ordinance. Nor do we think there is anything in the language of the section which gives countenance to the construction that an ordinance levying the special tax is not as indispensible under its provisions as it was under the provisions of those from which it was evolved. We do not think the mere fact that the relator in this case does not make the same concession that was made by the relator in the Mastin cases renders inapplicable the principles by which we were controlled in the decision of the latter. If there was no ordinance in the present case levying the special tax and the action of the city engineer did not constitute a levy then there was no levy at all, and the two cases do not differ in their essential features. A rather careful consideration of the brief and argument of the learned counsel for the relator has not persuaded us that the conviction expressed by us in the Mastin case is erroneous and should not be adhered to. The judgment of the circuit court will accordingly be affirmed. All concur.