Walker v. Dobbins

• Decision Date: 02 January 1911
• Citation: 133 S.W. 387,152 Mo. App. 270
• Parties: WALKER v. DOBBINS et al.
• Court: Missouri Court of Appeals

133 S.W. 387

152 Mo. A. 270

WALKER v. DOBBINS et al.

Kansas City Court of Appeals. Missouri.

January 2, 1911.

1. APPEAL AND ERROR (§ 987)—FINDINGS OF TRIAL COURT—EQUITY CASES—CONCLUSIVENESS.

In equity cases, the appellate court may review and disregard findings of fact by the trial court.

2. APPEAL AND ERROR (§ 1009)—REVIEW—FINDINGS OF FACT — EQUITY CASES — CONFLICTING EVIDENCE.

In equity cases, where the evidence is conflicting, but closely balanced, the appellate court will defer to findings of fact by the trial judge, for he has had the opportunity of seeing the witnesses when they testified.

3. MUNICIPAL CORPORATIONS (§ 416)—IMPROVEMENTS—PAVING STREET — AUTHORITY OF CITY COUNCIL.

Under Rev. St. 1899, §§ 6266, 6267, 6268 (Ann. St. 1906, p. 3133), which authorize city councils to assess abutting property owners for the paving of streets, and allow them to order and direct the making of such improvements, a city council of Pleasant Hill had the power to order the widening of a street which was being macadamized by public subscription, so that an assessment upon property owners for this purpose was valid.

4. MUNICIPAL CORPORATIONS (§ 330)—PUBLIC IMPROVEMENTS — STREET PAVING — SPECIAL ASSESSMENTS.

The citizens of Pleasant Hill subscribed a fund to pave a certain road and let their contract, and after that the city council passed an assessment upon abutting property owners to widen the highway. The contractor who had secured the work in the first place was awarded the second contract, and one of the owners insisted that by this arrangement competitive bidding was destroyed and the assessment avoided. Held that, although the contractor had an advantage, it was a legitimate one of his own creation and not of the council, and if he could do the work cheaper than others that did not avoid the assessment.

Appeal from Circuit Court, Cass County; Nick M. Bradley, Judge.

Suit by Alice M. Walker against C. W. Dobbins and the Central Missouri Trust Company. From a judgment for defendants, plaintiff appeals. Affirmed.

Paxton & Rose, for appellant. A. A. Whitsitt and Silver & Dumm, for respondents.

JOHNSON, J.

This is a suit in equity to cancel special tax bills issued against property of plaintiff by Pleasant Hill, a city of less than 10,000 inhabitants, organized under a special charter. In 1908, citizens of Pleasant Hill formed an organization for the purpose of macadamizing a public road from a point in the city to the Jackson county line. The route selected included parts of public streets in the city, among them the street in front of plaintiff's property. Funds were subscribed by the members of the organization sufficient to macadamize a roadway 16 feet wide, and a committee appointed for that purpose attended to letting the contract and supervising the work. Defendant Dobbins was the successful bidder, and a contract was made with him which required him to grade away 24 feet wide in the streets and to macadamize a space 16 feet wide in the middle. Before any work was done under this contract, the city council decided to widen the macadam 4 feet on each side and to provide for the payment of such additional improvement by issuing special tax bills as provided in sections 6266, 6267, 6268, Rev. St. 1899 (Ann. St. 1906, p. 3133). An ordinance providing for the improvement was passed, an advertisement for bids was made, and defendant Dobbins was the successful and, in fact, the only bidder. The city entered into a contract with him which, conforming in every way to the requirements of the ordinance, required him to construct the additional strips of macadam of the same material and specifications as those specified in the contract between the citizens and the contractor for the 16 feet roadway. In short, the council, acting on the belief that the additional travel in the city called for a wider pavement than that required for the country travel, attempted to provide a suitable pavement for all reasonable and probable uses. The contractor, as was contemplated, treated both contracts as providing for a single improvement by grading and macadamizing a roadway 24 feet wide. The citizens' committee paid him in accordance with their contract, and...