Kurtz v. Knapp , 1907 Mo. App. LEXIS 542 ( 1907 )

ELLISON, J.

This is an action to cancel a taxbill claimed to be a lien on plaintiff’s property in Kansas City. Tbe judgment in tbe trial court, was for tbe defendants.

Tbe first ground for its cancellation is that tbe sidewalk for which the tax was levied was not built on Prospect avenue, tbe street designated by tbe ordinance, but on plaintiff’s private property. Tbe facts are that tbe street called Prospect avenue was formerly a county road forty feet in width. It was widened to eighty feet by taking twenty feet from tbe adjoining property on either side. Tbe walk in this case was laid on this twenty feet. So if it were true that tbe avenue bad never in fact been widened tbe walk would not be on tbe street as directed by the ordinance. But tbe fact is it was widened by tbe voluntary action of tbe parties owning tbe adjoining property including this plaintiff. In 1897'be signed a written dedication claiming therein $500 damages. Tbe county court accepted it conditioned that be, plaintiff, would accept $250 instead of $500. This, tbe plaintiff did by receiving a county warrant and cashing it. Tbe road has ever since been recognized a,s a public thoroughfare.

At tbe date of this dedication tbe street, at the point in controversy was outside tbe city limits. Tbe city was afterwards extended so as to include this point. The extension of tbe city limits over tbe road did not affect a prior dedication. “A dedication either statutory or common law, to a public corporation is not lost by changes in the form of tbe corporate government, nor by changes in its territorial boundaries. A dedication for tbe purpose of a public township road will not be lost to tbe public if a town or city is built up, and tbe road falls within its limit, nor will it be lost in cases where there is an extension of corporate limits so as to embrace county roads, nor where a village grows into a town or a town into a city. Towns, townships and cities are but trustees of the public, and, as in case of ordinary trusts, the public trust is not defeated by a change of trustees. Public corporations of the classes mentioned are governmental subdivisions, and changes in their forms, powers and obligations do not deprive the public of their rights in public easements, nor in public property, such as schoolhouses, public squares and the like.” [Elliott on Roads and Streets, sec. 116.]

It is insisted that the bill is void for the reason that one of the property-owners was allowed a cut price and relieved to that extent of his just proportion of the whole work. Or, stated differently, to that extent his proportion of the cost of the work was thrown upon the other property-holders. It is true that if a contractor by some understanding with one or more property holders had before the contract is let agrees to a private price for them lower than that for the others, it shows he can do the work for that much less than his bid and but for the cut price to the favored ones he could and would have made a lower bid for the work. The inevitable effect of his action is to increase the price to general property-holders so that he may be enabled to decrease it to those he had favored. Such scheme is founded either in corruption, or some unfair advantage, or for some improper purpose. But no such case appears here. The most that can be said was done in this case was that after the work was finished and the apportionment made, a small discount was allowed one person upon his payment of a bill amounting to more than seven hundred dollars. There is no evidence that this was in pursuance of any previous understanding, or that it was connected with any improper, or unfair purpose, or that it could possibly have affected the public bid or the rights of other property-holders. The transaction was not connected with any phase of the case which could directly or indirectly affect the other property-holders.. It appears to be no more than the contractor for some reason, not at all connected with letting the contract or doing the work, concluded to allow a small discount for payment. He may have been in great need of the money and wanted to induce a prompt payment. But whatever the reason, it has not been shown, by any proper construction of conduct, to be unlawful or unfair. We do not regard the case of Childers v. Holmes, 95 Mo. App. 154, as in any way supporting the plaintiff in his contention.

It is next contended that the bill is void for the reason that the contractor did not give two sureties on his contract as required by the charter of the city [Sec. 20, Art. 9J. It is meant by this that the contract was let to Coiimbe and that Knapp one of his two sureties was his partner, and therefore not a surety as contemplated by the .charter. The contract was let to CJoumbe as an individual. The bond was signed by him as principal and by Knapp and one other, as sureties. The reason for stating that Knapp was a partner of the contractor and not his surety is made up from inferences drawn from the testimony of Coumbe and Knapp on other matters. We cannot understand how we are to declare, as a matter of law, that a taxbill is void if issued to a contractor who is in every respect competent to contract for the work, merely for the reason that one who is his partner becomes surety on his bond. If the partner is otherwise a proper surety we cannot see a reason, in the absence of a showing of some improper influence or unfair effect, for saying it should avoid the taxbill. So far as can be seen from the record, the contractor was Coumbe and one of his sureties was Knapp and they occupy those positions in the case, both in fact and in law.

Finally it is contended that the sidewalk is not on the proper established grade. We consider that the evidence justified the trial court in finding that it is. There was some evidence, that according to the survey of one party, it was not precisely at grade. There was other evidence which tended to show that it was as near to grade as it is possible to have that class of work.

After a full examination of the entire record and a consideration of all that has been urged against the validity of the bill we have concluded^ that there is no good reason for declaring -it to be void. The plaintiff’s objections to the work were carefully examined into and found not to be founded on the fact. He has been treated with much consideration and has now in our opinion nothing whatever which would justify us in overturning the judgment of the trial court, and it is accordingly affirmed.

All concur.