Barber Asphalt Paving Co. v. Kihlberg Karlsbad Bath Co. , 136 Mo. App. 555 ( 1909 )

JOHNSON, J.

This suit is for the enforcement of the lien of special taxbills issued by Excelsior Springs, a city of the fourth class, in payment of the cost of paving a public street. Defendants, the owners of the property against which the taxbills were issued, demurred to the petition on the grounds, first, that the petition fails to state a cause of action and, second, that it does not show that the city “had any authority by law to páss its ordinance to pave the street therein mentioned for the reason that said ordinance could only be passed after the proper publication of a-resolution.” The demurrer was overruled. Defendants declined to plead further and, standing on the demurrer, brought the case here by appeal from the judgment rendered against them.

The petition is in three counts, but present purposes will be satisfied by a statement of the substance of one of them. It is alleged that an ordinance providing for the improvement was enacted and approved by the city; that pursuant thereto, a contract was made by the city with plaintiff; that the work was completed in accordance with the terms of the ordinance and contract and was accepted by the city, and that the .assessment was levied and the taxbill issued. There is an averment that “each and all of the requirements of the statutes and ordinances in regard to the work and improvements and the taxbill herein referred to were duly complied with.” The taxbill is set out in haec verba.

It is conceded that the facts pleaded are sufficiently stated but the objection urged against the petition is that it fails to state all of the facts constitutive of the cause of action. Defendants argue that it is just as essential that compliance with other statutory requirements relating to the levy of the assessment be shown in the petition as it is that the ordinance authorizing the improvement or the taxbill itself be pleaded, that each statutory step leading to the issuance of the taxbill is jurisdictional and, therefore, is constitutive of a cause of action for the enforcement of the lien. Specific attention is directed to the ommission from the petition of an allegation that a resolution was passed by the board of aldermen declaring the work necessary to be done, a step required by the provisions of the statute relating to cities of the fourth class. [Section 5989, Revised Statutes 1899.]

The courts of this State have held in a number of cases that in actions on special taxbills, the plaintiff is not required to plead compliance with the preliminary steps leading to the issuance of the taxbill. “It is sufficient for the plaintiff to allege in the first instance that the officers of the municipality duly authorized so to do have issued to him the special taxbill on which he sues setting out its provisions and stating that the defendants named therein are the owners of the lot sought to be charged. [Vieths v. The Planet, etc., Co., 64 Mo. App. 207; Eyerman v. Payne, 28 Mo. App. 72; Lucass v. McConn, 50 Mo. App. 638; Bank v. Wright’s Trustees, 68 Mo. App. 144; Excelsior Springs v. Ettenson, 120 Mo. App. 222; Hunt v. Hopkins, 66 Mo. 98; Duncan v. Kirtley, 54 Mo. App. 655.]

But defendant contends that this rule of pleading had its origin in statutes which as in the case of Hunt v. Hopkins, supra, specifically provided that “it shall be sufficient for plaintiff to plead the making and the issue of the taxbill sued on giving the dates and contents thereof and assignment thereof in case of assignment” and that in the absence of such statutory provision, the rule cannot obtain but instead the general rule of pleading, that the petition must contain a plain and concise statement of all of the constitutive facts, must apply.

The statutes relating to cities of the fourth class do not contain a provision similar to that quoted but they do provide that “such special taxbills shall in any action thereon, be prima-facie evidence of the regularity of the proceedings for such special assessments, 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.” [Section 5986, Revised Statutes 1899.] It is true this statute goes no further than to establish the character of a special taxbill as evidence and does not deal with the question of pleading. [Cushing v. Powell, 109 S. W. 1054, 130 Mo. App. 576.] But, taken in conjunction with the initial presumption indulged in cases of this nature that the municipal authorities have proceeded in accordance with the law and not in violation thereof (Paving Co. v. Ullman, 137 Mo. l. c. 568; Excelsior Springs Co. v. Ettenson, supra), we think the statutory rule of pleading considered in some of the cases we have cited, e. g., Hunt v. Hopkins, should be regarded as but a legislative enactment of a general rule. “The suit is one upon the taxbill and not for work and labor done.” [Vieths v. Planet Co., supra.] If, on its face, the tax-bill appears to be regular, presumptively it is valid. It proclaims the fact that it was issued in conformity with the law and the burden always is on the defendant to overcome the presumption of validity by proof to the contrary. The petition is to be measured by the rule applied in the cases where the statutes deal specifically with the subject of pleading and thus measured is found sufficient. The decision of this court in the recent case of Cushing v. Powell, supra, is not in conflict with the views expressed. Indeed, we said there, in effect, what we have said here: “The holder of the bill by legal intendment alleges the several steps necessary to a taxbill and its regularity by alleging the issuance of the bill and he proves that by introducing the bill.”

We do not consider that the case of Carthage v. Badgley, 73 Mo. App. 123, much relied on by defendants sustains their contention. There the petition alleged facts which affirmatively disclosed the invalidity of the taxbill. Here all the allegations assert its validity.

The judgment is affirmed.

All concur.