City of Kirksville ex rel. Fleming Manufacturing Co. v. Coleman

• Decision Date: 23 November 1903
• Citation: 77 S.W. 120,103 Mo.App. 215
• Parties: CITY OF KIRKSVILLE ex rel. FLEMING MANUFACTURING COMPANY, Appellant, v. DOROTHY COLEMAN, Respondent
• Court: Kansas Court of Appeals

77 S.W. 120

103 Mo.App. 215

CITY OF KIRKSVILLE ex rel. FLEMING MANUFACTURING COMPANY, Appellant, v. DOROTHY COLEMAN, Respondent

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

AFFIRMED.

Judgment affirmed.

Rieger & Rieger for appellant.

(1) The bill is prima facie evidence of the regularity of the proceedings for such special assessment 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. Sec. 5858, chapt 91, art. 4, R. S. 1899; Moberly v. Hogan, 131 Mo 19. (2) A variance in order to be fatal must materially affect the substantial rights of the property-holder. Cole v. Skrainka, 105 Mo. 309; Springfield v Knott, 49 Mo.App. 612. (3) A substantial compliance with the law and ordinance relating to improvements is essential--nothing more. Springfield v. Knott, 49 Mo.App. 612; Steffen v. Fox, 124 Mo. 630; Meyer v. Wright, 19 Mo.App. 283.

Millan & Greenwood, C. E. Murrell and Campbell & Ellison for respondent.

(1) The taxbill sued upon includes the cost of bringing the street to grade. The resolution which declared the work necessary, recites that the cost of such grading shall be included in the taxbill. The resolution in question in no way attempts to describe the work of bringing the street to the established grade, and in fact no grade was attempted to be established upon said street until August 18, 1897, more than thirty days after the publication of the resolution. We contend this omission of the city council is fatal to this proceeding. (2) The resolution was published on the 8th and 15th days of July, 1897, the estimate of the cost of the improvement was made by the city engineer, July 19, 1897. The ordinance prescribing the character of the improvement, depth, width, etc., was passed August 10, 1897. Until the passage of said ordinance prescribing the material, depth, etc., of the macadam, nothing was or could be known as to whether the depth of the macadam was to be five inches or twelve inches, nor the material to be used, or how the intersection of streets were to be improved, or where curbstones were to be, nor how the gutterways would be provided for. Without any information upon any of those matters it was impossible to make an estimate of the cost of the improvement, because there was nothing on which to base such estimate. Respondent, therefore, contends there was in law no estimate. Without an estimate all subsequent proceedings are void. City of DeSoto v. Showman, 73 S.W. 257. (3) An examination of the ordinance relied upon by appellant to establish the grade will disclose that it does not attempt to establish the grade of the street but only establishes the grade at the intersection of streets, and as the taxbill sued upon includes cost of grade, it is void unless the grade is established by ordinance. This ordinance is similar in its provisions to ordinance declared void in City of DeSoto v. Showman, supra.

OPINION

ELLISON, J.

This action is based on a special taxbill issued for grading and macadamizing one of the streets of Kirksville, a statutory city of the third class. The trial court held the bill to be void and the plaintiff, who is assignee of the bill, has brought the case here for review.

The ordinance and proceedings for the improvement are based upon sections 5858, 5859 and 5860, Revised Statutes 1899. It is therein provided that whenever the city council shall deem it necessary to improve a street it shall declare by resolution, published for two weeks, that such work is necessary to be done. That if within ten days thereafter a majority of the resident property-owners abutting such improvement do not file with the city clerk their remonstrance against the proposed work, that then the council shall have power to order it to be done. It is further provided that whenever in the opinion of the council the general revenue of the city will not justify paying for bringing a street to an established grade, the resolution shall so declare; and in addition to the other work therein provided for, shall include and describe the work of bringing such street to the established grade. It is further provided that before any contract is let for the improvement, an estimate of the cost thereof shall be made by the city engineer.

In this case the council passed a resolution on July 6, 1897 declaring it necessary to grade, pave, gutter, curb and terrace the street. The resolution further declared that in the opinion of the council the general revenue did not warrant an expenditure therefrom for bringing the street to the established grade and that the cost of so bringing it to grade should be included in the special taxbills. On July 19th, the city engineer made his estimate in the following words: "The undersigned respectfully submit to your honorable body, his estimate of the cost of grading, paving, guttering, curbing and terracing Brown avenue from Jefferson street south to Michigan street and fix the cost of said street improvements at seven cents per square foot." Afterwards, on August 10th, the council passed an ordinance establishing the grade on such street and on the same day passed an ordinance prescribing the kind and character of improvement and directing it to be done. The law is well settled in this State that before the council has power to pave a street it shall, as a preliminary move in that direction, pass a resolution declaring that it deems the improvement necessary. City to use v. Eddy, 123 Mo. 546, 27 S.W. 471; Wheeler v. Poplar Bluff, 149 Mo. 36, 49 S.W. 1088. One of the principal objects and purposes...