Jones v. Plummer

• Decision Date: 06 April 1909
• Citation: 137 Mo. App. 337,118 S.W. 109
• Parties: JONES et al. v. PLUMMER.
• Court: Missouri Court of Appeals

118 S.W. 109

137 Mo. App. 337

JONES et al. v. PLUMMER.

St. Louis Court of Appeals. Missouri.

April 6, 1909.

1. WORDS AND PHRASES—"MACADAMIZING."

According to the Standard Dictionary, to "macadamize" is "to cover or pave, as a path or roadway, with small broken stone, on either a soft or a hard substratum." Judicially speaking, the word "macadamizing" has a fixed and definite meaning, and refers not only to the kind of material to be used in covering the street or road, but also to the manner in which it is to be laid. It means to cover a street or

road by a process introduced by Macadam, which consists of the use of small stones of a uniform size, consolidated and levelled by heavy rollers.

2. MUNICIPAL CORPORATIONS (§ 414)—STREET IMPROVEMENTS.

Rev. St. § 5858, as amended (Ann. St. 1906, p. 2963), provides that on repairs of macadamizing the street shall be divided into sections, the cost in each section to be assessed on the lots fronting on either side of the section. Held that, the mere employment of the word "macadamizing" not essentially involving the idea of constructing a new stone foundation therefor, where the macadamizing on a stone foundation, permitted to remain intact, was completely removed and relaid, it was reconstructed within the statute, and not merely repaired, and hence a division of the street into sections was not necessary.

3. MUNICIPAL CORPORATIONS (§ 444) — STREET IMPROVEMENTS.

Under Ann. St. 1906, § 5859, providing that contracts for street paving, etc., shall be let to the lowest bidder on plans and specifications filed therefor with the city clerk by the city engineer, it is an essential prerequisite to a valid assessment that the plans and specifications be on file when the contract is let.

4. MUNICIPAL CORPORATIONS (§ 538)—STREET IMPROVEMENTS.

In the absence of evidence to the contrary, the presumption obtains that plans and specifications for street paving, etc., were on file with the city clerk when the contract was let, as required by Ann. St. 1906, § 5859, and the burden is on one seeking to restrain the enforcement of tax bills issued in payment for the work to remove the presumption.

5. MUNICIPAL CORPORATIONS (§ 538)—STREET IMPROVEMENTS.

In an action to restrain the enforcement of tax bills issued for street paving, testimony of plaintiff's attorney that he asked the city clerk for the plans and specifications of the work, and was told that none were on file, was insufficient to show that they were not on file at the time of letting the contract, as required by Ann. St. 1906, § 5859, the resolution declaring the improvement proper referring to them as though then on file, and it not appearing when witness asked for them.

6. TRIAL (§ 105)—EQUITY CASE—HEARSAY EVIDENCE.

In an equity case, the court may disregard hearsay evidence, though it was admitted without objection.

7. APPEAL AND ERROR (§ 1011)—FINDINGS — CONCLUSIVENESS.

A finding of the trial court on conflicting evidence will be sustained on appeal.

Appeal from Circuit Court, Greene County.

Bill by George H. Jones and others against E. Plummer. From a judgment dismissing the bill, plaintiffs appeal. Affirmed.

J. P. McCammon and L. M. Haydon, for appellants. W. D. Tatlow and Barbour & McDavid, for respondent.

NORTONI, J.

This is a suit in equity seeking to enjoin the enforcement of certain special tax bills issued against the property of the various plaintiffs by the council of the city of Springfield. Upon a hearing the court denied the relief and dismissed the bill. Plaintiffs prosecute the appeal. The special tax bills were issued in payment for the reconstruction of the macadamizing on Jefferson street. Plaintiffs seek to enjoin their enforcement, first, on the ground that the taxes therein evidenced are invalid, for the reason the levy was made for reconstructing the macadamizing mentioned, when, in truth and in fact, the street was only repaired. All of the proceedings had in the city council pertain to reconstructing the macadamizing on Jefferson street; that is to say, the resolution declaring the same necessary and the ordinances pertaining to the matter treat the improvement as reconstruction, and the taxes are assessed in accordance with the statute for such reconstruction. The same statute (section 5858, Rev. St. 1899 [Ann. St. 1906, p. 2962]), however, provides that the city council shall have power to repair the macadamizing on any street and assess the same against the adjoining properties as therein indicated. In cases of repair to macadamizing on a street, however, the same statute requires the street to be divided into sections, a section being the distance from the center of one cross or intersecting street to the center of the next cross or intersecting street, and the cost in each section shall be assessed on the lots or tracts of land fronting on either side of that section. It appears the street was not so divided into sections, and it is therefore argued that, as the improvement was a repair rather than a reconstruction, the tax bills should be enjoined for the reason in proceedings in invitum the statutory requirements in respect to all precedent matters must be strictly complied with. It appears from the evidence that Jefferson street was constructed in 1902. At this time a stone foundation of about eight or ten inches in depth was securely laid. On top of this there were several inches of macadam. That is to say, several inches of gravel, wetted and smoothly rolled, was placed on this foundation, bringing the same to a level of the grade of the street. By user the gravel or macadamizing had been worn out. The gravel had nearly all disappeared. The street was in this condition at the time the city council passed the resolution declaring it necessary to reconstruct the macadamizing thereof. This resolution, after so declaring, proceeds to direct that the street should first be cleared of all dirt, vegetable, and perishable matter, after which the same should be thoroughly spiked up and loosened, the surface of the street to be thoroughly harrowed and raked, lumps...