Perkinson v. McGrath

• Decision Date: 27 April 1880
• Citation: 9 Mo.App. 26
• Parties: HENRY PERKINSON, Appellant, v. JAMES MCGRATH, Respondent.
• Court: Missouri Court of Appeals

9 Mo.App. 26

HENRY PERKINSON, Appellant,

v.JAMES MCGRATH, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 27, 1880.

1. A special tax-bill for work done under an ordinance upon which the engineer's estimate has not been indorsed, is void.

2. That the owner required that the work be done in accordance with the contract between the contractor and the city, it not appearing that he had actual notice of the invalidity of the ordinance, does not estop him from disputing the validity of the ordinance, and does not tend to prove a contract between the owner and contractor, nor an acceptance and agreement to pay for the work.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

EBER PEACOCK and A. R. TAYLOR, for the appellant: All the charter requires is that there shall be an estimate of the cost of the work proposed to be done. This is construed to mean the cost of the work to be paid for by the city.-- The State ex rel. v. St. Louis, 56 Mo. 277; Perkinson v. Partridge, 3 Mo. App. 60. Estoppel in pais.-- The People v. Council, 65 Barb. 9; Fletcher v. Holmes, 25 Ind. 469; Kellar v. Lafayette, 30 Ind. 194; Dalzell v. Odell, 3 Hill, 219.

BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent: As to the validity of the ordinance.-- Wittler v. Covender, 3 Mo. App. 580; Stadler v. Roth, 59 Mo. 400.

BAKEWELL, J., delivered the opinion of the court.

This was an action on a special tax-bill for work done in curbing, guttering, macadamizing, and making cross-walks. It is claimed that the bill is a charge on a city lot owned by defendant, in St. Louis. It appeared on the trial that on May 31, 1872, ordinance No. 260, entitled “An ordinance to improve Twenty-seventh Street from Cass Avenue to O'Fallon Street,” was introduced into the Council and read for the first time. On June 4th, it was read a second time and referred to the Committee on Streets and Alleys. On July 2d, this ordinance was reported back from the committee, with amendments, so as to make the title read, “An ordinance to improve certain streets in the second district north of the south line of the Sixth Ward.” The body of the bill was so changed as to provide for the improvement of thirty or forty streets, including the street named in the original ordinance, which bears an insignificant proportion to the work named in the new bill. The amended ordinance, as reported back to the Council, bore on it no other estimate of the city engineer than one of June 10th, “estimating the expense of the city at $2,300, and the expense to the property-holders at $4,400.” This, from its date and amount, is evidently the estimate on the original ordinance. By some oversight, it does not, however, appear from the record before us what estimate was indorsed upon the original ordinance. It is, however, manifest that the estimate on the amended bill cannot be an estimate for the new work, because it was made before the ordinance was amended, so as to include the additional streets, and because the appropriation which is based upon the estimate, and which is for the cost to the city of grading alone, appears to have been $55,000. Before the passage of the bill, the comptroller certified that there was standing to the credit of the appropriation for streets within the district named, the sum of $55,000, mentioned in the bill.

The charter of 1870 provides that every ordinance requiring such work to be done shall...