| Mo. Ct. App. | Nov 4, 1895
This is an action to enforce the lien of several special tax bills for grading a- portion of Thirteenth street in the city of St. Joseph. The defendant, the owner of certain lots, sought, to be charged, interposed the defense that the work of grading the street was not completed as required by the contract and ordinance providing therefor. This defense was based on the following state of facts:
In 1888 a city ordinance was passed establishing the grade of the street in question; and in May, 1890, the city council, in pursuance of the petition of the owners of the majority of front feet, by ordinance directed the street to be graded to the established grade and that the cost thereof be charged to the abutting owners. In July, 1890, a contract was let to one Reital for the bringing of the street to the established grade as theretofore fixed. Reitab began the work pro
Tbe cause was submitted to the court sitting as a jury, resulting in a judgment in plaintiff’s favor, and defendant appealed.
On the conceded facts of this case, the judgment was for the wrong party and will be reversed. Under the charter of cities of the second class (to which St. Joseph belongs) the city council is not authorized to grade a street at the expense of the property owners, except on the petition of the resident owners owning a majority of the front feet thereon. Section 1404, R. S. 1889. At the time, now, that this defendant and others owning the real estate on Thirteenth street petitioned for the- grading thereof, the grade had been established by the ordinance of 1888, and they requested that the street be brought to such established grade. The ordinance of May, 1890 followed the prayer of this petition and provided for the grading according to the .-elevations fixed by the ordinance of 1888. And the contract, too, entered into between the city and Reital, the lowest bidder, stipulated for filling the street to the grade- established by the ordinance of 1888. While, however, the work was progressing and was about being performed as petitioned for by the abutting property owners, as ordered by the ordinance of May, 1890, and as stipulated by the. terms of the grading contract,
The consent of the abutting real estate owners is all important in a ease of this nature, where their property is to be charged with the cost of the improvement. The charter has provided a protection for their interests by restricting the powers of the common council to cases where the resident owners of a majority of the front feet shall petition for the particular street improvement. Here the owners did petition for the grading of Thirteenth street, but it was for doing the work and filling the highway according to the then established grade. They did not ask for a different improvement— for filling the street to some other lower grade that might be subsequently agreed upon by the contractor and city council. To permit this would render nugatory and worthless the charter provision .to which we have before referred.
It is clear that the contractor has failed to perform the work of grading petitioned for and provided for by the ordinance of May, 1890, and as specified in the contract entered into in July, 1890. The tax bills, therefore, are void. Judgment reversed.