Verdin v. City of St. Louis

• Decision Date: 26 November 1895
• Parties: VERDIN et al. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

33 S.W. 480

131 Mo. 26

VERDIN et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

November 26, 1895.

ORDINANCES — PAVING CONTRACTS — CONSTRUCTION AND MAINTENANCE — SPECIAL TAX BILLS — CLOUD ON TITLE — EQUITABLE RELIEF — MONOPOLIZED MATERIAL — ESTOPPEL.

1. A petition alleging that street paving has been done under a contract pursuant to certain ordinances; that the contract and ordinances are invalid, because in violation of certain provisions of the city charter, in that the contract, as required by ordinances, embraced not only the construction, but subsequent maintenance of the paving; that the city is about to issue special tax bills against petitioners' property for the cost of such construction; that such tax bills will be registered, and, when so issued and registered, will, by certain provisions of the city charter, become a lien on petitioners' adjoining property, and will be a cloud on petitioners title to said land, and will damage and injure their title thereto and the value of the land; and that petitioners have no adequate remedy at law; and that, unless the issuing and registering of the special tax bills is enjoined, plaintiffs will suffer irreparable injury, — states a case for equitable cognizance and injunctive relief, on the grounds of cloud on title and inadequate legal remedy, though it is alleged that, because of such violation of the city charter, the tax bills and proceedings under which they are issued are null and void; the defects in the proceedings previous to the tax bills requiring legal acumen to discover them. Brace, C. J., and Sherwood and Robinson, JJ., dissenting.

2. Under the charter of St. Louis (article 6, § 14), providing that the board of public improvements shall designate a day on which they will consider the improvement of a street, and shall publish notice of the time, place, and object of their meeting, it is enough that the notice state the meeting is for the purpose of considering the matter of reconstruction, with asphaltum, certain streets, without naming the kind of asphaltum.

3. An ordinance authorizing the work of reconstructing a street and maintaining it in condition for a term of years to be let in one contract, to the lowest responsible bidder, the lowest bidder to be ascertained by the aggregate of his bids for reconstruction and maintenance, is void as in violation of the city charter; "maintenance" of a street being the same thing as "repairs," and it being provided by the St. Louis city charter (article 6, § 18) that repairs shall be paid for by the city and reconstruction by the property owners, and (by section 27) that, in case of public work or repairs, bids shall be advertised for as provided for purchases by the commissioner of supplies, and the work be let to the lowest responsible bidder, subject to the approval of the council, and that any other mode of letting out work shall be null and void, and, (by article 4, § 29) that the commissioner of supplies shall make no purchase except after advertising, and any bidder may bid for any one article, and the award for each article shall be to the lowest bidder therefor. Brace, C. J., and Sherwood and Robinson, JJ., dissenting.

4. An ordinance providing for paving a street with a particular kind of asphalt, in which there is a monopoly, is not void, though the city charter provides for letting contracts to the lowest responsible bidder. Burgess, J., dissenting.

5. Where construction and maintenance of a paving are included in one contract, in violation of a city charter, an abutting landowner, to avoid liability for the cost of the construction, need not maintain injunction before the work is done, but having, before the commencement of the work, notified the contractors that he would contest the legality of the proceedings under which they were acting, he is in a position, after they have completed the work, to ask that the placing of a lien on his property for the cost of construction be enjoined. Brace, C. J., and Sherwood and Robinson, JJ., dissenting.

On rehearing. For former report, see 27 S. W. 447.

The plaintiffs' petition was as follows:

"For cause of action against defendants, plaintiffs state as follows, to wit:

"On or about the 4th day of September, 1888, one James Verdin departed this life, in the city of St. Louis, leaving a last will and testament, dated the 30th day of June, 1888, which will was duly probated in the probate court in the city of St. Louis on the 13th day of September, 1888. By the terms of said will, the said James Verdin gave to his children, Louis, Bernard M., John N., Harriet A., and Mary Josephine, wife of the petitioner, William H. Swift, the sum of one dollar ($1.00) each. All the rest and residue of his estate, real, personal, and mixed, except such personal property as should be allowed to a widow by law, the said James Verdin gave, devised, and bequeathed unto the plaintiffs herein in trust, to hold the same for the use and benefit of Margaret Verdin, wife and widow of said James Verdin, during her lifetime, and to pay over to her the net income thereof, with authority in said trustees, with the consent of said widow, to sell the whole or any part of the property so held in trust from time to time, and invest the proceeds in real estate or safe securities. Upon the death of the said Margaret Verdin, widow as aforesaid, the said trustees were directed to pay over to Mary Ann, a sister of said James Verdin, $4,000, and to divide the remainder of the property remaining in their hands equally among the children of said James Verdin, share and share alike, the heirs of any of said children not then living to take the share which the parent would be entitled to if living. By the terms of said will, plaintiffs were appointed executors of said will without bond, and, having been duly qualified as such executors, took possession of said estate, and administered thereon, and on the 24th day of December, 1890, upon final settlement, were, by judgment of the probate court, discharged as such executors, and thereafter held, and now hold, the remainder of said estate as trustees under the terms of said will, for the use and benefit of said Margaret Verdin, widow, who is still living. Among other properties now held and owned by plaintiffs as trustees under the terms of said will is the following real estate, of the city of St. Louis: A lot in block 1723 of the city of St. Louis, beginning at a point in the western line of Jefferson avenue, two hundred and four feet and ten inches (204-10) northwardly from the intersection of the north line of Clark avenue; thence running northwardly, along the west line of Jefferson avenue, forty (40) feet; thence westwardly, and along the south line of a lot now or formerly of John A. Coulon, one hundred and forty (140) feet, more or less, to an alley; thence south, along the east line of said alley, forty (40) feet, more or less, to lot now or formerly of Philip Roetger; thence eastwardly, along north line of said Roetger lot, one hundred and thirty-six (136) feet, more or less, to the point of beginning, — which was acquired by said deceased from Christopher Schroeder and Minna Schroeder, his wife, by deed dated 30th day of November, A. D. 1883, and recorded in the recorder's office of city of St. Louis, in Book 712, page 519; said property having two (2) brick stone-front buildings on it, bringing an income of nine hundred and sixty dollars ($960). Said property is situated on Jefferson avenue, between Adams street and Market street, in the city of St. Louis.

"Prior to the 21st day of June, 1892, the defendant the Barber Asphalt Paving Company caused to be circulated among the owners of the property on both sides of said Jefferson avenue, between Adams street and Market street, a petition for their signatures, which petition was addressed to the board of public improvements of the city of St. Louis, asking for the reconstruction of that part of Jefferson avenue with asphaltum from the asphaltum lake, owned by the government, of the Island of Trinidad. Said petition was not signed by a majority in number of the property holders aforesaid, nor by the property holders owning a majority of front or linear feet to be affected by the cost of the proposed reconstruction. On the contrary, said petition was signed only by a minority in number of the said property holders, representing less than one-half of the owners of front and linear feet of property to be affected by the cost of such reconstruction. Said petition was not presented to plaintiffs for their signatures, and did not receive their signatures, nor were they aware until after the letting of the contract hereinafter referred to that any of the property holders were desiring the reconstruction of said street with asphaltum. The said petition, induced, obtained, and signed as aforesaid, plaintiffs are informed and believe, and so aver, was presented to the board of public improvements of the city of St. Louis on or prior to June 21, 1892. Thereafter, at the request of the street commissioner, the said board, on August 30, 1892, designated September 20, 1892, at 10 o'clock a. m., as the time when it would consider the matter of reconstruction with asphaltum sundry streets, among them the following: No. 3,397, petition 5,162, for reconstructing with asphaltum Jefferson avenue, from Adams street to Market street. And the president of said board was directed to give two weeks' public notice thereof in the papers doing the city printing. Thereafter the president of said board caused to be published in the said papers the following public notice:

"`Public Notice.

"`Office of President Board of Public Improvements, St. Louis, September 1, 1892. Public notice is hereby given that the board of public improvements will hold a special meeting at the hour of 10 a. m. of the 20th day of September, 1892, at its office in the city hall, for the purpose of considering the...