Verdin v. The City of St. Louis

• Decision Date: 19 November 1895
• Citation: 33 S.W. 480,131 Mo. 26
• Parties: Verdin et al., Appellants, v. The City of St. Louis, et al
• Court: Missouri Supreme Court

33 S.W. 480

131 Mo. 26

Verdin et al., Appellants, v. The City of St. Louis, et al

Supreme Court of Missouri

November 19, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Plaintiffs' petition is as follows:

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

On or about the fourth day of September, 1888, one James Verdin departed this life in the city of St. Louis, leaving a last will and testament, dated the thirtieth day of June, 1888 which will was duly probated in the probate court in the city of St. Louis on the thirteenth 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) 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 as 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 twenty-fourth 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 thirtieth 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 twenty-first 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: Number 3397, petition 5162, 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 twentieth day of September, 1892, at its office in the city hall, for the purpose of considering the matter of reconstructing with asphaltum streets as hereinafter mentioned, viz.:

"No. 3396. Petition No. 5160 -- For reconstructing with asphaltum, Carr street from Broadway to Seventh street.

"No. 3397. Petition No. 5162 -- For reconstructing with asphaltum, Jefferson avenue from Adams street to Market street.

"No. 3398. Petition No. 5163 -- For reconstructing with asphaltum, Jefferson avenue from Market street to Morgan street.

"No. 3399. Petition No. 5170 -- For reconstructing with asphaltum, Carr street from Seventh to Eighth street.

"No. 3400. Board's motion for petition No. 5176 -- For reconstructing with asphaltum, Vandeventer avenue from Olive street to Page avenue, now Page boulevard.

"All citizens interested in any of the improvements above mentioned are requested to attend.

"By order of the board.

(Signed)

"M. L. Holman,

"President pro tem.

"Attest: Emory S. Foster, Secretary."

Plaintiffs aver that neither said public notice nor the official record of the board of public improvements at that time afforded any evidence that the said street was to be reconstructed with asphaltum from the asphaltum lake from the island of Trinidad, and that the asphalt to be used in such reconstruction would be limited to Trinidad lake asphaltum.

Plaintiffs allege that said notice was insufficient and did not comply with the terms and spirit of sections 14 and 15, article 6, of the charter of the city of St. Louis, by the provisions of which sections the board of public improvements is required to give two weeks' public notice of the time, place, and object of the meeting of the owners of the property to be affected by the cost of such construction; and after the property owners shall have been heard at such meeting, in the ordinance recommending such reconstruction, the said board shall specify the character of the work, its extent, the material to be used, etc.

On September 20, 1892, in accordance with the public notice aforesaid, the board considered said reconstruction of Jefferson avenue, and recommended the reconstruction thereof with asphaltum, and directed its committee on street department to prepare and submit an ordinance for such reconstruction. There was nothing, however, in the instruction given said committee directing them to prepare and submit an ordinance requiring that said street should be reconstructed with Trinidad lake asphaltum.

Nevertheless the said committee on street department prepared and submitted to the board, and the board recommended to the municipal assembly of the city of St. Louis, an ordinance for such reconstruction, which ordinance is in words and figures as follows, towit:

"Ordinance 17151.

"An ordinance to reconstruct Jefferson avenue, from Adams street to Market street.

"Be it ordained by the municipal assembly of the city of St Louis, as follows:

"Section 1. The board of public improvements is hereby authorized and directed to cause Jefferson avenue, from Adams street to Market street, to be reconstructed by taking up and removing the old pavement from the roadway, preparing the roadbed, renewing and readjusting the curbing, laying a roadway pavement of best quality of Trinidad lake asphalt on a concrete base, except between the rails of the street railway company occupying the street, which last mentioned space shall be paved with granite blocks, laid on a bed of sand, and making all proper connections and intersections with other streets and alleys, and to contract for the maintenance of said constructed street for a period of nine years, commencing one year after the work of reconstruction is completed and accepted.

"Sec 2. The...