City ex rel. McGrath v. Clemens

• Decision Date: 31 March 1872
• Citation: 49 Mo. 552
• Parties: CITY, TO USE OF LOUIS MCGRATH et al., Respondents, v. JAMES CLEMENS, JR., Appellant.
• Court: Missouri Supreme Court

49 Mo. 552

CITY, TO USE OF LOUIS MCGRATH et al., Respondents,

v.JAMES CLEMENS, JR., Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

A. M. Gardner, for appellant.

The second instruction asked by defendant and refused is as follows: “If the defendant sustained any damage from the way in which the city contracted for or directed the work to be done, or from the unskillful and improper manner in which the work in question was done, then defendant is entitled to recover such damages as may have accrued therefrom, as fully and completely as if the city was the plaintiff.”

C. G. Mauro, for respondents, relied on City, to use, etc., v. Clemens, 36 Mo. 467.

WAGNER, Judge, delivered the opinion of the court.

This was a suit upon certified special tax-bills for the cost of grading, macadamizing, guttering and curbing O'Fallon street, between Twenty-fourth and Twenty-fifth streets, in the city of St. Louis. The contract entered into between the city engineer and the respondent was to grade, macadamize, gutter and curb all that part of the street lying between Twenty-fourth street and Pratte avenue; but the work was only completed between Twenty-fourth and Twenty-fifth streets, adjoining the property of the appellant, when it was stopped, and the engineer made out and certified the special tax-bill in question, charging the appellant with the payment of the work done. When this case was here before, the point was raised that the bills could not be lawfully made out till the whole work provided for in the contract was completed. (St. Louis v. Clemens, 36 Mo. 467.) But the objection was overruled, and it was adjudged that the right to charge the property with the lien did not depend upon the completion of the whole work contracted for, but only upon the completion of the work which was charged against the property of the defendant; that in this respect the act under which the proceeding was had differed from the act concerning sewers. We are now asked to review that case as far as that point is concerned, and re-examine the question. Whilst we are always reluctant to interfere with adjudged cases which have become established precedents, still, if mistakes have been committed, we will rectify them, provided no property rights are impaired. Upon the prior hearing of the case in this court, the point now under consideration was summarily disposed of, and received very little attention, as there were several others which were deemed of more importance.

The provision in the charter giving the city power to pass an ordinance for making special assessments against property-holders, reads as follows: “Whenever any of the above-mentioned work” (referring to street improvements) “shall have been fully completed under authority of ordinances, the city engineer, or other officer having charge of the work, shall compute the cost thereof, and assess it as a special tax against the adjoining...