City of Poplar Bluff v. Bacon

• Decision Date: 06 June 1910
• Citation: 144 Mo. App. 182,129 S.W. 466
• Parties: CITY OF POPLAR BLUFF v. BACON et ux.
• Court: Missouri Court of Appeals

129 S.W. 466

144 Mo. App. 182

CITY OF POPLAR BLUFF v. BACON et ux.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. MUNICIPAL CORPORATIONS (§ 314) — STREET IMPROVEMENTS — CONFORMITY TO RESOLUTION.

A tax bill for macadam six inches deep is void where the initial resolution and proceedings had until expiration of the time for remonstrance against the improvement provided for four inches.

2. MUNICIPAL CORPORATIONS (§ 567) — ENFORCEMENT OF TAX BILL — GENERAL DENIAL — PROOF ADMISSIBLE UNDER.

In a suit to enforce a special tax bill for macadam, a taxpayer could show under a general denial that the bills were void for variance between the initial resolution and subsequent proceedings as to the quantity of material used.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Suit by City of Poplar Bluff, to the use of H. H. Jolly, against Ernest Bacon and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

David W. Hill, for appellant. James F. Green and Ernest A. Green, for respondents.

GRAY, J.

This is a suit for the enforcement of a special tax bill in the sum of $63.25, levied by the city of Poplar Bluff, a city of the third class, against the real estate of the defendants, for macadamizing a portion of Main street, in said city. On the 5th day of November, 1906, the mayor and city council passed a resolution, describing the proposed improvement, as follows: "The proposition is to macadamize with crushed rock four inches deep and 27 feet wide." At the time this resolution was passed, and for several months thereafter, no plan, specification, or estimate was on file in the office of the city clerk, but on the 29th day of July, 1907, an estimate of the cost, made by one W. E. Morrison, was filed. This estimate provided that the grading and preparing the street for the macadam should be paid for by the city, and that the macadam or crushed rock to be placed on the street should be of a size that would pass through a 2-inch ring and put on the street 6 inches deep, and for the width of 27 feet, estimating the cost of the same at $1 per lineal foot of street. On the same day the estimate was filed the council passed an ordinance for the improvement, reciting the resolution, the publication thereof, and the fact that no remonstrance had been filed, and that W. F. Morrison, by order of the council, had made and filed with the city clerk a proper estimate of the work. The ordinance provided that the profile, maps, and estimate of work as made by the city engineer and said Morrison were approved and adopted. In September, 1907, a contract was entered into between the city and H. H. Jolly. In this contract the work to be done was described as follows: "That the first party will macadamize said street with crushed limestone rock; said rock having been first crushed to a size that the largest piece will pass through a ring two inches in diameter." The cause was tried to a jury on the 20th day of October, 1907, and at the close of the testimony the court instructed the jury to find the issues for the defendant, and the jury returned a verdict for the defendant, and judgment was rendered thereon, from which the plaintiff appealed to this court.

The petition alleges the making of the resolution, ordinance, contract, performance of the work, and the issuing of the tax bill, a copy of which was set forth in the petition. The answer contained a general denial, and also several separate and distinct defenses. The uncontradicted testimony shows that crushed limestone as called for in the contract was not used by the contractor in making the improvement. The contractor, testifying for himself, stated that the only crushed limestone there was in or near Poplar Bluff was what he had shipped in to make improvements, and that he used no crushed...