Estes v. Owen

• Decision Date: 06 December 1886
• Parties: Estes, Appellant, v. Owen
• Court: Missouri Supreme Court

2 S.W. 133

90 Mo. 113

Estes, Appellant, v. Owen

Supreme Court of Missouri

December 6, 1886

Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.

Reversed.

Woodson & Woodson for appellant.

The tax bills make a prima facie case. Ess v. Bouton, 64 Mo 105; Menan v. Smith, 60 Mo. 294. The power to compel property or lot owners to macadamize is a continuing one, and extends to compelling to repair when required by the municipal authorities. 2 Dillon on Mun. Corp. [3 Ed.] p. 779 sec. 780 (619), and case cited in foot note; Morley v Weakly, 86 Mo. 451; McCormick v. Pachin, 53 Mo. 33, and cases cited; Farrar v. City of St. Louis, 80 Mo. 379, 392. When, in all material respects, the ordinances relating to contracts for street improvements, and the issuance of special tax bills for cost of same, are complied with between the city authorities and the contractor, the latter can maintain his action for the amount of such tax bills. Sheehan v. Owen, 82 Mo. 458.

Green & Burnes for respondent.

(1) The city has no power to repair a street at the expense of the holders of property abutting on it, when it has already been once macadamized. Charter and Ordinances of City of St. Joseph, 1869, p. 47, secs. 4, 5. (2) The ordinance under which the work was done delegates the power to the city engineer to say where the work should be done to make the street a good one, which power conld only be exercised by the mayor and city council. (3) The case was submitted to the court on the evidence of both parties, and it might have found that the contract between the city and plaintiff was payable in city warrants, as defendant's evidence tended to show, in which case there would have been no error in giving the instruction. (4) The contract could not be awarded by the council without the mayor's action, and it cannot be presumed that he did act when the record shows that he simply presided at the meeting when the same was ordered. Saxton v. Beach, 50 Mo. 488.

OPINION

Norton, J.

This is a suit to recover of defendant certain tax bills for work done in repairing a macadamized street in the city of St. Joseph, in front of property owned by defendant. The work was done under a contract awarded by the mayor and council, the same having been authorized by the ordinances of said city. The case was tried before the court without the intervention of a jury. The court sustained a demurrer to the evidence on the ground, as stated in the bill of exceptions, that under its charter the city of St. Joseph had no power to make the contract in suit, and authorize the work and repairing thereunder, when charged as a special tax against defendant's property.

That the city, under its charter, has...