Haegele v. Mallinckrodt

• Decision Date: 31 October 1870
• Citation: 46 Mo. 577
• Parties: FREDERICK HAEGELE, Appellant, v. E. MALLINCKRODT, Respondent.
• Court: Missouri Supreme Court

46 Mo. 577

FREDERICK HAEGELE, Appellant,

v.E. MALLINCKRODT, Respondent.

Supreme Court of Missouri.

October Term, 1870.

Appeal from St. Louis Circuit Court.

This was a suit by a city contractor against the owner of adjoining property, on three special tax bills issued by the city of St. Louis for the improvement of Destrehan street, by virtue of city ordinance No. 5853. Said ordinance is as follows:

[No. 5853.]

AN ORDINANCE FOR THE IMPROVEMENT OF DESTREHAN STREET, FROM NORTH SECOND STREET TO THE MISSISSIPPI RIVER.

Be it ordained by the City Council of the city of St. Louis: SECTION 1. The city engineer is hereby authorized and instructed to cause Destrehan street, from North Second street to the Mississippi river, to be graded and macadamized.

SEC. 2. The sum of two thousand dollars is hereby appropriated to defray the cost of grading, payable out of the New Limit Fund of the Tenth Ward; and the cost of macadamizing shall be assessed as a special tax against the property fronting on said street, in accordance with law.

Approved July 3, 1866.

L. & F. Gottschalk, for appellant.

I. The court below erred in excluding ordinance No. 5853, offered by plaintiff. This ordinance was alleged in the petition, and was excluded by the court for the reason that it was void, in that it omitted to ordain what material was to be used for macadamizing. This omission did not make the ordinance void, but only made it incomplete, and plaintiff had the right to show that another ordinance covered this omission. But by excluding this ordinance, which was the authority to do this work, plaintiff was debarred from introducing any evidence.

II. The court erred in preventing plaintiff from showing, by witness Bischoff, city engineer, that the only way of macadamizing known in St. Louis was the way in which it was done, and what was universally understood by the term ““macadamizing” in St. Louis. (1 Greenl. Ev. 332, § 292, 12th ed.; 2 Greenl. Ev. 222.)

III. The special tax bills were proven and in evidence, and this made a prima facie case for plaintiff. (City, to use of Lohrum, v. Coons, 37 Mo. 44; City, to use of Stadler, v. Armstrong, 38 Mo. 29; City, to use of Creamer, v. Oeters, 36 Mo. 456.) The difference in the language of the law of 1860 and 1866 is immaterial, as both say that such special tax bills shall be prima facie evidence “of the liability of the person therein named as the owner of such property.”

Krum, Decker & Krum, and Schulenberg, for respondent.

I. A party relying upon a city ordinance must set it forth in his pleading, otherwise he can not offer it in evidence on trial. (Mooney v. Kennett, 19 Mo. 555.) There was no foundation laid in plaintiff's petition for the introduction of any ordinance other than No. 5853.

II. The macadamizing of the street can only be done in such manner, to such extent, of such dimensions, and of such material, as shall be provided by ordinance. If the ordinance fails to provide for these, it fails to comply with the charter. (Ruggles v. Collier, 43 Mo. 353; City, to use of Murphy, v. Clemens, 43 Mo. 395, and cases cited.)

CURRIER, Judge, delivered the opinion of the court.

The decision made at the last March term of this court, in Sheehan v. Gleeson, disposes of most of the questions arising upon this record. The main difference between the two cases consists in this: that in the case referred to, the general as well as the special ordinance bearing upon the issues was pleaded and shown by the record; whereas the special ordinance alone appears here. The present suit is based upon city ordinance No. 5853, which simply authorizes the macadamizing of a particular street between given points, without furnishing any...