City of St. Louis v. Ӕters

Holmes, Judge, delivered the opinion of the court. This was a suit upon certified special tax bills for the cost of construction of a district sewer in the city of St. Louis, under the act of March 14, 1859. (Laws of 1858-9, p. 168,. §14.) By this act, the city has power by ordinance to establish a general system of sewers, to consist of public, district, and private sewers. District sewers are to be established within the limits of districts to be prescribed by ordinance, and the districts may be subdivided, enlarged and changed, by ordinance, at any time previous to the construction of a sewer therein. The common council is authorized “ to cause sewers to be constructed in each district, whenever a majority of the property holders resident within the district shall petition therefor, or whenever the council may deem such sewer necessary for sanitary or other purposes,” to be made of “ such dimensions as may be prescribed by ordinance”; and as soon as such district sewer shall have been fully completed, the city engineer, or other officer having charge of the work, is to compute the cost of the work and assess it as a special tax upon the lots of ground in proportion to the area of the whole district, and the certified bill is to be made out against the lot in the name of the owner, and delivered' to the contractor for the work, to be collected by him by ordinary process of law in the name of the city, to his own uso; and the certified bill is to be a lien on the lot. The power of the city to order the construction of a district sewer is not limited to cases of a petition by a majority of the names, or of a recommendation of the board of health, for sanitary purposes, but extends to all cases where the council shall deem a district sewer necessary for any other purpose. And when the council has, by ordinance, expressly authorized such sewer to be built, it is to be presumed that it was deemed necessary for some purpose, and of that matter the council is to determine for itself. It does not concern the defendant here. By ordinance dated the 12th of August, 1859, the “ West [462] First street sewer district ” was established, and the city engineer was authorized to cause a district sewer to be constructed therein. On the first day of December thereafter a contract was made with the plaintiff, Creamer, for the construction of the sewer in question, and the work proceeded. Afterwards, on the 24th of March, 1860, this district was subdivided by ordinance into two, this sewer falling within the second, on “ North Poplar street sewer district No. 3,” and by this ordinance the city engineer was authorized to cause district sewers to be constructed therein in all cases where a majority of the property owners shall have petitioned therefor, or when the board of health shall have recommended a sewer therein for sanitary purposes. This ordinance could have no retrospective operation upon the previous contract. Whether or not it came within the power given by the act, can have no importance for the defendant here. By the fourth section of the act of January 16, 1860, which went into force on the seventeenth day of April following, the fourteenth section of the previous act was amended by adding after the words “ until paid,” a clause which made the certified tax bill, in any action brought to recover the amount thereof, prima, facie evidence of the validity of the charge against the property therein described, and of the liability of the person therein named as the owner of the property.” (Laws of 1859-60, p. 382, § 4.) The section as printed (evidently by some misprint or cleri» cal mistake) places the amendment in the “ twenty-ninth” instead of the thirty-ninth line of section “ ninteen ” instead of “fourteen” as it should be; but notwithstanding their errors, there is enough clearly to designate both the section and the place in the section where the amendment is to come. There is nothing in this that can avail the defendant in his defence. The certified tax bill was made out and dated the 26th of July, 1860, after the work was completed, and in conformity with the act under which the contract was made and the [463] work done. The previous amendment of the act has the effect only to make the bill prima facie evidence, when it would not have been such evidence before the amendment. There can be no doubt it is competent for the Legislature to change the rules of evidence, and prescribe what shall be the effect of documentary evidence of this kind in all future suits, as well as to change the remedy. It cannot be considered as inapplicable to the present case, or as inoperative upon third parties by reason of any retroactive character. So far as it may have any such retrospective operation, it came within the power of the Legislature to change the law in such matters. The cause of action accrued after the amendment was made: it does not change the rules of decision of a civil cause, upon facts existing previous to the making of the law, and relating to the grounds of the action or of the defence. (Woart v. Werneick, 3 N. H. 973 ; Smith, Const. Law, §§ 155, 168, 381, 368.) It is objected by defendant that the ordinance did not prescribe the dimensions of the sewer. The act gives the council power to prescribe the dimensions, and the ordinance authorizing the city engineer to construct the sewer, gave him power to determine the dimensions of this particular sewer. It is not made a condition precedent either of the power of the council or of the authority of the engineer We do not see that this objection can be of any avail to the defendant. It is insisted further that the city engineer had no authority to certify this particular bill, for the reason that the work was done under the immediate charge of another person, who was employed in his department and was acting under his authority. The city engineer is to be considered as having charge of all work done under his authority in his department. He is supposed to be acquainted with whatever is done under his direction; and the bill, when certified by him, is to be prima facie evidence only. The defendant may rebut it by disproving any material fact, or the correctness [464] of the bill; but the mere circumstance that the engineer does not know of his own personal knowledge all the details of the bill, or that the work was not actually done under his eye, can be of no importance in the matter. Exception was taken, also, to the admission of a certified bill made out in the name of John Weinhamer, to be discharged by the receipt of the plaintiff Creamer. This bill appears to have been for the same amount as that certified in the name of Creamer, for which the judgment is given. This bill, in the name of Weinhamer, was certainly not admissible under the petition as a bill against the defendant; but it does not appear to have had any effect upon the verdict, and must have been regarded as irrelevant or immaterial. It seems to have been offered under an agreement of counsel in reference to another case, and in connection with other evidence tending to show that some of the items of the work were done by other mechanics under some arrangement with the plaintiff, whereby he was to have the benefit of their contract with the city in the matter of the price, and the whole was to be included in the certified bill in his favor; and he was to be accountable to them. It amounted to nothing more than a sort of sub-contract under Creamer, for certain parts of the work; and it is not apparent how it could have been of any disadvantage to the defendant. We see no ground here for reversing the judgment. The question raised as to the unconstitutionality of the act in respect to the mode in which the tax is levied, has already been decided by this court in several cases. (City of St. Joseph v. Anthony, 30 Mo. 539; Egyptian Levee Co. v. Hardin, 27 Mo. 493 ; Lockwood v. City, 24 Mo. 20.) There were some other objections made by the defendant, which we do not think it necessary to notice in detail. The judgment appears to have been given for the right party, and we have not found any such error as would warrant a reversal. Judgment affirmed. Judge Wagner concurs ; Judge Lovelace absent.