Ranney v. City of Cape Girardeau

• Decision Date: 03 November 1914
• Docket Number: No. 12094.,12094.
• Citation: 185 Mo. App. 229,170 S.W. 342
• Parties: RANNEY v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Court of Appeals

170 S.W. 342

185 Mo. A. 229

RANNEY v. CITY OF CAPE GIRARDEAU.

No. 12094.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

MUNICIPAL CORPORATIONS (§ 414)—STREET IMPROVEMENTS — STATUTORY PROVISIONS — "REPAIRING"—"RECONSTRUCTION."

Where a gravel street, which had become badly worn so that there were many depressions in it, was graded and macadamized from gutter to gutter with macadam varying in thickness from a few inches to 2½ feet, this amounted to a "reconstruction" of the street, and not to a "repairing" thereof, within Rev. St. 1909, § 9255, providing that no formality shall be required to authorize the repairing of streets, but that the proper officers may, with or without notice, be authorized, by ordinance or resolution, to have such work done, reporting the cost to the council for assessment; and hence, where the provisions of that section, requiring, with regard to the macadamizing of any street, a preliminary resolution declaring the street improvement necessary and a letting of the work to the lowest and best bidder upon plans, etc., were not complied with, special tax bills issued to reimburse the city for the cost of the improvement were void.

Appeal from Cape Girardeau Court of Common Pleas; J. L. Fort, Acting Judge.

Bill in equity by Emma Wathen Ranney against the City of Cape Girardeau. From a decree for plaintiff, defendant appealed, and the cause was transferred to the Supreme Court, which court (255 Mo. 514, 164 S. W. 582) retransferred the cause to this court.

M. A. Dempsey and R. H. Whitelaw, both of Cape Girardeau, for appellant. Wilson Cramer, of Jackson, for respondent.

ALLEN, J.

Plaintiff, by bill in equity, seeks to cancel certain tax bills for the improvement of a street in Cape Girardeau, a city of the third class. The trial court entered a decree for plaintiff, canceling the tax bills, and restrained the collection thereof, and the defendant city appealed to this court. On respondent's motion the cause was transferred to the Supreme Court, upon the ground that a constitutional question is involved, but it has been retransferred to this court; the Supreme Court holding that the record presents no constitutional question such as to deprive us of jurisdiction. See Ranney v. Cape Girardeau, 255 Mo. 514, 164 S. W. 582.

The petition seeks to have the tax bills declared null and void on 17 grounds. The answer admitted some of the allegations of the petition, denied others, and averred certain alleged facts in support of the validity of the tax bills. It is unnecessary, however, to here specially notice the pleadings.

The work of improvement in question consisted of the reconstruction of a part of Main street, one of the leading thoroughfares of the city of Cape Girardeau, upon which plaintiff's property abuts. It appears that prior to making the improvement, the street had become badly worn, and there were many depressions and "holes" in it. Just what was the nature of the old street does not fully appear, but it is said that it was a gravel street. On September 9, 1907, an ordinance was passed by the council authorizing the "repairing" of Main street from Broadway to Mill street, and of certain portions of other streets as well, ordering the street commissioner to "repair" the same, and providing for the issuance of special tax bills to reimburse the city for the cost thereof. It is conceded that this ordinance was never signed by the mayor, nor presented to him for his approval. Under the last-mentioned ordinance the work here in question was done. The evidence is that the street was "graded and macadamized," though there is testimony that the depressions and holes in the street were not filled with earth, but with macadam. At any rate, it fully appears that the portion of Main street in question was macadamized from gutter to gutter, the thickness of the macadam varying it seems from a few inches to 2½ feet.

It is conceded that the appellant city did not proceed in accordance with the provisions of section 9255, Rev. Stat. 1909, relating to the paving, macadamizing, etc., of any street, avenue, alley, or other highway in a city of the third class, for which a special tax is to be levied, which statute was in force at the time. See Laws 1907, p. 103. There was no preliminary resolution declaring the street improvement necessary, no letting of the work to the lowest and best bidder, upon plans and specifications, etc., nor was the statute complied with in other particulars. On the contrary, the improvement was authorized by the council upon the theory that it constituted merely a repairing of the streets in question; and the work was done by the city, under the supervision of its street...