City of Excelsior Springs v. Ettenson

CourtCourt of Appeal of Missouri (US)
Citation96 S.W. 701,120 Mo. App. 215
PartiesCITY OF EXCELSIOR SPRINGS, to Use of McCORMICK, v. ETTENSON.
Decision Date02 July 1906

An ordinance of a city of the fourth class, adopted pursuant to Rev. St. 1889, § 1592, as amended by Laws 1893, p. 107, provided for a street improvement specifying the time allotted for the completion of the work, the materials to be used, the manner and regulations to be followed, and with reference to the extent and dimensions of the improvements fixed a boundary at each end of the street and stated that each street was to be macadamized to the full width thereof, exclusive of sidewalks. When the ordinance was passed, and when the contract for the work was awarded, the sidewalk limits had not been established. Held, that the city failed to comply with the ordinance in letting the contract, rendering special tax bills issued in payment of the work invalid.

5. SAME — CURBING — ORDINANCE — SUFFICIENCY.

An ordinance providing for the curbing of a street "according to the established grade" refers to the grade previously established, and special tax bills issued for the work are not invalid on the ground that the matter of the grade is left to the city engineer.

6. SAME — AUTHORITY OF CITY TO DIRECTSTATUTES.

Rev. St. 1889, § 1592, as amended by Laws 1893, p. 107, authorizing cities of the fourth class to cause streets "to be graded, constructed, reconstructed, paved," etc., authorizes a city of the class to issue special tax bills to pay for the cost of curbing, especially in view of the provision in the section authorizing the issuance of tax bills for special assessments for "paving, macadamizing and curbing," for the terms "constructed" and "paved" refer to the entire pavement of the street and include curbing, which is a necessary part thereof.

7. SAME—STREET IMPROVEMENT—CONTRACT—TAX BILLS—VALIDITY.

An ordinance for a street improvement required the work to be completed in a time specified without qualification. The contract for the work stipulated that a specified sum per day should be deducted from the amount of the estimate as liquidated damages for each day the work remained unfinished, unless the delay was excused by the city engineer. The improvement was completed in the time fixed in the ordinance. Held, that the special tax bills issued in payment of the work were not void because of the provision in the contract authorizing the city engineer to extend the time for the completion of the work.

8. SAME.

A contract for a street improvement bound the contractor to pay the engineering expenses. The engineering work was performed by the city engineer, who received a salary. The ordinance providing for the work did not require the payment of such expenses by the contractor, nor were they included in the estimates filed by the engineer. Held, that as such expenses could not have been taken into consideration in the bidding, they imposed no additional burden on the property owners, and the special tax bills issued in payment of the work were not invalid.

9. SAME.

The ordinance and contract for the curbing of a street provided for the curbing from "the west line of lot 7 * * * east to" a point named. The tax bills issued in payment of the work recited that it had been completed from the west line of the lot. The improvement constructed began at the east line of the lot. Under the facts it appeared that a mistake was made in naming the west for the east line of the lot. Held, that the special tax bills were not void because of such mistake.

10. SAME—BURDEN OF PROOF.

Under the statute making special tax bills issued in payment of a street improvement prima facie evidence of the regularity of the proceedings, one assailing the validity of the bills on a particular ground has the burden of establishing the fact relied on.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by the city of Excelsior Springs, to the Use of David McCormick, against Henry Ettenson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Harris L. Moore and I. J. Ringolsky, for appellant. D. C. Allen and Sandusky & Sandusky, for respondent.

JOHNSON, J.

Action to enforce special tax bills issued in payment of certain street improvements in Excelsior Springs. Their validity is attacked by defendant on a number of grounds, but was sustained by the trial court. An appeal was allowed to this court, but, on motion of defendant, the cause was certified to the Supreme Court because, in our opinion, a constitutional question was involved. The Supreme Court reached a different conclusion and remanded the cause. Excelsior Springs, to Use, etc., v. Ettenson, 188 Mo. 129, 86 S. W. 255, and in the opinion filed eliminated that question from the case.

Thirty-six tax bills were issued against property of defendant in Excelsior Springs, a city of the fourth class; nine for the macadamizing of Main street, nine for the curbing laid thereon, nine for the macadamizing of Broadway and nine for curbing on that street. Each tax bill was made the subject of a count in the petition. In the judgment a separate finding was made on each count and judgments were rendered in the aggregate on all counts affecting the same property. The improvements mentioned consisted of the macadamizing, guttering, and curbing of Broadway, South, and Main streets. Broadway runs east and west. South is the eastward prolongation thereof. Main runs north and south crossing Broadway. On June 28, 1894, the city in providing for the doing of the work contemplated passed four ordinances, i. e., No. 232 for the macadamizing and guttering of Broadway and South streets, No. 240 for the curbing of the same, No. 236 for macadamizing Main street, and No. 244 for the curbing thereof. Each ordinance required the city engineer to make and file in the city clerk's office an estimate of the improvement, stating in those relating to macadamizing the cost per square yard "for macadamizing according to the specifications of this ordinance and" in those relating to curbing "the cost per lineal foot for said curbing according to specifications," etc. The mayor and clerk were required to advertise for bids in the official newspaper for a period of 10 days and each ordinance made it mandatory on the mayor and board of aldermen to "let the contract * * * to the lowest and best bidder provided the amount bid does not exceed the estimate price." The estimates were filed, advertisements made, and on July 21st, by resolutions duly passed, the whole work was awarded to F. P. McCormick, whose bid on the macadam was 60 cents per square yard, and on the curbing 50 cents per lineal foot. Written contracts were made with McCormick on July 26th and on the same day these were confirmed by the city in ordinances duly passed. The improvements were completed by the contractor in the time required by the ordinances and contracts—120 days—the cost thereof computed and apportioned, and the tax bills were issued on November 15th and delivered to the contractor, who, before the bringing of this suit, assigned them to the plaintiff. At the time these improvements were made the right of the city to assess the cost of such improvements against the adjoining property was derived from the provisions of section 1592, Rev. St. 1889, as amended in 1893 (Sess. Acts 1893, p. 107 et seq.). That section provided: "The board of aldermen shall have power by ordinance to cause to be graded, construed, reconstructed, paved, or otherwise improved and repaired, all streets, sidewalks and alleys, and public highways, and parts thereof within the city at such time and to such extent and of such dimensions and with such materials and in such manner and under such regulation as shall be provided by ordinance," etc. The ordinances passed by the city for the macadamizing specified the time allotted for the completion of the work, the materials to be used, the manner and regulations to be followed, and with reference to the extent and dimensions of the improvements fixed a boundary at each end thereof and stated that each street was to "be macadamized to the full width thereof exclusive of sidewalks." Broadway-South street is 60 feet wide; Main street 40 feet. When the ordinances were passed no sidewalk limits had been established by the city on these streets either by general or special ordinance, nor were they fixed until after the contracts had been awarded to McCormick. On July 26th, the date the contracts were made and confirmed by ordinance, the city passed an ordinance...

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