City of Salem ex rel. Roney v. Young

NIXON, P. J. (after stating the facts.) — I. The question is raised by the respondent as to the proper parties defendant to the suit on the taxbill. It is contended that one L. N. Coffman was a joint owner with the respondent and should have been made a party defendant in tbe suit. Tbe evidence tends to show that prior to tbe suit on tbe taxbill, tbe joint owners, Young and Coffman, made a verbal partition, Young receiving tbe portion of tbe land on which the sidewalk in question abuts, and it appears that Coffman constructed bis portion of tbe sidewalk in compliance with tbe ordinance along tbe tract belonging to him. Tbe provision of the statute requiring tbe tax suit to be commenced against tbe record owner was made to enable tbe plaintiff more readily to ascertain the party against whom suit should be commenced. Tbe law in its administration is to be made practical, and if tbe real owner is in fact made tbe defendant in tbe tax suit, tbe end intended to be accomplished by tbe law is reached and tbe defendant is not in a position to complain. A valid judgment may be rendered in an action on a special taxbill against real estate to be charged with its lien without bringing in all tbe parties in interest. Of course, only tbe interest of tbe party made defendant would be bound by tbe judgment, and tbe defendant actually made a party would have bis action against owners not made parties for contribution. [Schneider Granite Co. v. Taylor, 64 Mo. App. 37.] Observance of all the formalities in suits on taxbills is not required, but only a substantial compliance with tbe law is demanded. [Sheehan v. Owen, 82 Mo. 458; Cole v. Skrainka, 105 Mo. loc. cit. 309, 16 S. W. 491.] II. It is contended that tbe respondent, W. W. [168] Young, should have been given notice of the condemnation of the .defective sidewalk and of the passage of the ordinance of resolution for the construction of a new sidewalk abutting his land. The evidence shows that respondent was present at the meeting of the board of aldermen at the time the ordinance or resolution was passed, and that he notified the city at that time that he would neither build his walk nor pay for its construction. The object of the law under such circumstances requiring notice is to enable the party interested to build the walk or have it built as well as to allow him to make any objections he may have. The respondent in this case had the notice, and, by his declarations, waived any additional notice. It would be a mockery indeed if the law should allow the defendant, before suit, to notify the city that he would neither build nor pay for the construction of the sidewalk, - and then, after the expense of constructing it had been incurred and suit had been commenced against him on the taxbill, to defeat the action because he had not been served with notice. Respondent had a right to waive the notice which he did in this case, and he is not in any position to complain because formal notice was not served upon him. He will not be allowed to blow hot and cold at will. III. Objection is made to the regularity of the ordinance condemning the old sidewalk and providing for the construction of the new one abutting respondent’s land. Section 5991 of the Revised Statutes of 1899 provides: “In addition to the powers hereinbefore granted, the board of aldermen may, by ordinance or. resolution, condemn wooden and defective sidewalks, and may remove walks so condemned, and may provide for the construction of new sidewalks in the place of walks so condemned and removed.” This provision concerning cities of the fourth class gave the authorities of the city of Salem full power over the sidewalk in question, and their ordinance in this respect was a full compliance with the law. [169] IV. Further objection is made to the validity of the supposed extension of the city limits because it included unplatted adjacent territory. There is no foundation for this objection. It was not necessary that respondent’s land should have been platted before being included within the extension of the city limits of the city of Salem. Section 4982 of the Revised Statutes of 1879 providing for the extension of city limits empowers the mayor and board of aldermen, with the consent of a majority of the legal voters of the city voting at an election, to extend the limits of the city over any territory lying adjacent thereto. The attempted extension of the city limits was made under this act, and as will be seen from an inspection of its provisions, such extension is not restricted to platted grounds, and it has been often decided that the limitation of extension of cities of the fourth class is not restricted to platted additions. [Burnes ex rel. v. City of Edgerton, 143 Mo. 563, 45 S. W. 292; Cole v. Skrainka, supra; Copeland v. City of St. Joseph, 126 Mo. 417, 29 S. W. 281; State ex rel. v. Birch, 186 Mo. 205, 85 S. W. 361.] V. This case seems to have proceeded in the trial court upon the erroneous theory that it was necessary for the relators to show that the extension of the city limits over the respondent’s property was in compliance with the provisions of the statutes governing such extensions. This is an entirely erroneous conception of the law. Under the Missouri decisions, a de facto corporation or a 4 facto extension of the city limits of a municipal corporation is sufficient to withstand the respondent’s objections in an action upon a taxbill. Any actual organization of the municipality in osten- ■ sible possession and in the exercise of municipal powers is a de facto corporation. Public policy requires that municipal governments should be stable existing civil institutions and should not be easily destroyed. This maxim applies in all its force to the extension of city [170] boundaries as well as to the original incorporation of the city. Evidence was offered to show that the city of Salem had exercised its corporate functions over a territory attempted to be annexed, for years. The right of municipalities to exist and to act as such corporations cannot be impeached collaterally in the manper attempted in this case. Confusion amounting to chaos would result if the life of every municipality or other public service corporation should hang by so slender a thread. [Black v. Early, 208 Mo. loc. cit. 307, 106 S. W. 1014.] Under a rule that would permit the validity of the public corporation to be brought into question at the suit of private individuals, the corporation might find itself with or without being according to the return of the jury, alternating, it may be, between life and death several times during the same day as the return of the jury in different cases might indicate. It is neither within the letter nor the spirit of the statute to permit such vexatious and befogging issues to be made and considered. [Black v. Early, supra.] The existence of a municipal corporation in the de facto exercise of corporate powers must be challenged by the State itself by an information in the nature of quo warranto and cannot be collaterally attacked, for instance, by a defendant in a suit for taxes. [State ex rel. v. Birch, supra, and cases cited therein.] VI. But the reasonableness of an extension of city limits in suits to enforce rights claimed to arise thereunder is a subject of judicial inquiry. [State ex rel. v. Birch, supra.] In case of such attack, however, the presumption would arise that such extension and the exercise of corporate powers was reasonable, and, in cases like the present, the presumption of law is that the street is a proper subject of municipal legislation and the burden of proving the contrary is on the challenger. When such attack is made in a collateral proceeding, as here either on the extension [171] of city limits or the sidewalk ordinance, the inquiry should be confined to the narrowest limits and keenly scrutinized, and where there is a doubt as to the reasonableness of an ordinance looking towards an extension of city limits, or establishing a contested sidewalk, it should be resolved in favor of the ordinance, [State ex rel. v. Birch, supra; City of Plattsburg v. Riley, 42 Mo. App. loc. cit. 23; Kansas City v. Block, 175 Mo. 433, 74 S. W. 993; State ex rel. v. Pond, 93 Mo. 606, 6 S. W. 469.] The grounds upon which an ordinance may be declared void for unreasonableness have been said to be: First, Where it is oppressive, unequal and unjust; and second, when it is altogether unreasonable. [City of Cape Girardeau v. Riley, 72 Mo. 220; Corrigan v. Gage, 68 Mo. 541.] The rulings of the trial court as to the admission and exclusion of evidence were contrary to the principles of law announced in this opinion, and in order that the question of the reasonableness of the extension of the city limits of the city of Salem and the reasonableness of the ordinance condemning the defective sidewalk and providing for the construction of a new one abutting defendant’s land may be investigated according to the principles herein stated, the judgment is reversed and the cause remanded for a new trial on such issues. But in order to raise such issues, respondent’s answer should be amended so as to plead his objections specifically. All concur.