"This is a suit upon a special tax bill issued by the city of St. Louis for the reconstruction of Grand avenue from St. Louis avenue to Montgomery street. Plaintiff sues as the assignee of the Barber Asphalt Paving Company, the original contractor to whom the tax bill was issued. In its petition, plaintiff sets out the ordinances and the contract under which the alleged work was done; alleges compliance by the contractor with all the terms of said contract and ordinances; that defendant, Frederick Woesten, was the owner of certain property abutting upon said reconstructed street; and that the tax bill which was filed with its petition had been regularly issued. This cause was tried upon the petition and an amended answer filed by defendant, Woesten, since the former appeal of the case, which is reported in 147 Mo. 467, 48 S. W. 939, 48 L. R. A. 279, which amended answer is: First. A general denial. Second. A cross-bill to plaintiff's petition, alleging that the ordinances of the city of St. Louis under which the alleged work was done, the contract for said work, and the special tax bill issued therefor, were all of them null and void, for the following reasons: (1) That said ordinance provides for the repair and maintenance of Grand avenue for a period of nine years, commencing one year after the work of reconstruction shall be completed, and said ordinance does not specify the materials to be used in such work of repair and maintenance and was not indorsed with an estimate of the cost of such repair and maintenance, as required by the city charter, and that said ordinance does not contain a specific appropriation for the cost of said repair and maintenance from the proper revenue fund of the city of St. Louis, as required by the city charter. (2) That said ordinance provides for the payment of public money for the public work of repair and maintenance of part of said Grand avenue for nine years, but that the comptroller of the city never indorsed said ordinance, to the effect that sufficient unappropriated means stood to the credit of the fund set aside for street repairs to meet the requirements of said ordinance. (3) That the said ordinance requires that the work of reconstruction of said street, and the repair and maintenance thereof for nine years, should be advertised, bid for, let, and contracted for, in one and the same bidding, letting, and contract, and to and by the same contractor, and that it was unlawful to so confuse and combine the cost of reconstruction and the cost of repairs to said street. (4) That in recommending Ordinance No. 16,943, set out in plaintiff's petition, the board of public improvements of the city of St. Louis were acting under section 562 of the Revised Ordinances of 1887 and section 564 of the Revised Ordinances of 1893, and that said ordinances are null and void, because they are repugnant to sections 14, 15, 17, 18, 24, 27, and 28 of the charter of the city of St. Louis. (5) That the board of public improvements did arbitrarily fix the price and rate for said work of repair and maintenance, and did withdraw said work of repair and maintenance from public bidding, by adopting a uniform rule to the effect that no bid for the public work of reconstruction, repair, and maintenance should be accepted by them in which the bid for repair and maintenance to be paid by the city should exceed fifty cents per square of one hundred feet per annum. (6) That said price of fifty cents per square per annum, adopted by said board, for said work of maintenance and repair, was inadequate and insufficient to cover the cost thereof during the whole of said period, and that, by arbitrarily fixing the price of said maintenance and repair at said sum, said board invited and permitted plaintiff to bid an exorbitant price for the work of reconstruction, in order to make up what plaintiff would lose on said repairs and maintenance, and that the price bid by plaintiff for the work of reconstructing said street was and is exorbitant and unreasonable, and plaintiff is, by said rule and method of letting contracts, compelled to pay a portion of the cost of the repair and maintenance of said street. (7 and 8) That at the time of letting of said contract the board of public improvements well knew that the contractor, the Barber Asphalt Paving Company, owned and possessed the exclusive right to produce and use the materials specified therein, and that by selecting said monopolized materials the cost of said construction was greatly increased, and said contract was not let by competitive bidding, as required by the charter. (9 to 13) That the provisions of the charter and ordinances of the city of St. Louis in reference to special tax bills for work of the character done by plaintiff's assignor were and are unconstitutional and unreasonable, and, in effect, provide for taking defendant's property without due process of law, and that they are therefore null and void. And defendant alleges that said tax bill was and is a cloud upon his title to the real estate described in the petition, and he prays the court to declare said tax bill to be null and void and of no effect.
"Reply. Plaintiff, for reply to this amended answer, denied each and every allegation therein contained.
"Evidence. For plaintiff, the cause was submitted upon the pleadings, the tax bill, which was admitted to have been assigned to plaintiff and to have been regularly issued, and upon the admission of defendant that he knew that the work of reconstruction was being
done in front of his property and made no objection thereto at the time, and that the work so done has ministered to the benefit of defendant's property, and that payment of the tax bill sued upon was demanded September 23, 1893. Defendant offered in evidence Ordinance 16,943, as set out in plaintiff's petition, and in behalf of defendant it was admitted as follows: That at time of the recommendation of said ordinance by the board of public improvements of the city of St. Louis, and at the time of its transmission to and reception by the municipal assembly of the city of St. Louis, and during its pendency in said municipal assembly, prior to its final adoption and approval, said ordinance was not indorsed with the board's estimate, or any estimate, of the cost of maintenance or repair of the street for nine years, provided for therein. The said board of public improvements never did, from the time of recommending and transmitting said ordinance to the municipal assembly, nor during its pendency in said municipal assembly, nor at any time whatever, prepare and submit to said municipal assembly of the city of St. Louis any estimate of the cost of the work of maintenance or repair of the street for nine years, proposed and provided for in said ordinance; and said ordinance did not and does not contain a specific appropriation for the cost of said maintenance or repair, based upon an estimate of such, indorsed by the president of said board of public improvements on said ordinance, for the whole cost of the repair and maintenance of that portion of Grand avenue embraced in said ordinance. (2) In the municipal assembly of the city of St. Louis the said Ordinance No. 16,943 was, on its second reading, referred to the appropriate committee, but the said committee failed to obtain, and there was not placed on said ordinance at any time, the indorsement of the comptroller of the city of St. Louis, to the effect that sufficient...
