City of Independence ex rel. Smith v. Briggs

58 Mo. App. 241 | Mo. Ct. App. | 1894

Ellison, J.

This is an action to enforce a special tax bill issued by plaintiff. The court below held the-bill to be void.

The bill has its origin in the grading and macadamizing* of Alton avenue, a street in said city. The ordinance authorizing the work is as follows: “Section 1. That Alton avenue be macadamized from the east line of Main street to the eastern limits of the city in the following manner: The entire length of the street, to be graded the full width thereof; the macadam stone to be laid from curb line to curb line, including intersecting streets to the full width of Alton avenue * * * It being the opinion of the council that the general revenue fund is not in a condition to warrant an expenditure for grading said avenue to the established grade, its entire width, and that the cost of the same be included in the special assessment made for macadamizing said avenue, that said work be done under the general ordinance of the city, and special tax bills be issued therefor as in said ordinance provided.”

It is provided by section 1497, Revised Statutes 1889, governing cities of the third class, to which plaintiff city belongs: “Before the council shall make any contract for building bridges, sidewalks, culverts and sewers, or for paving, macadamizing, curbing, guttering and grading any street, avenue or alley, an estimate of the cost thereof shall be made by the proper officer and submitted to the council, and no contract shall be entered - into for any such work or improvements for a price exceeding such estimates: Provided, that no such estimate shall be required for the making of any local or special repairs.”

In this case the city engineer made a written estimate in the following language: “The undersigned hereby estimates the cost of macadamizing Alton avenue from Main street east to the city limits as required by resolution number 36, at $2.25 per cubic yard of macadam.” Defendants claim that this was not an estimate for the grading, at least for the grading of the space for sidewalks, and that since the evidence showed the grading of that space was included in the tax bill, it is void. The evidence taken does show that this estimate included the cost of grading that portion' of the street which was to be used as a sidewalk, there being no such walk' laid at the time. It was further shown that there was no data preserved whereby the separate cost of grading that portion of the street for sidewalks could then be ascertained. Under this state of the case we are of the opinion that the proceedings have been in substantial compliance with the law. We must necessarily construe the ordinance and the estimate together in order to a correct interpretation of the entire proceedings. In the first place the ordinance .shows clearly that the whole street was to be graded and that the space between the curbs was to be macadamized. From this it appears that the street was not graded and when it was provided that it should be graded its entire width it included the space to be reserved for sidewalks. The street includes the sidewalks. City of Bloomington v. Bay, 42 Ill. 503; Burmeister’s Petition, 76 N. Y. 174; Dillon Mun. Corp. [3 Ed.], sec. 699; City of Kokomo v. Mahan, 100 Ind. 242; Taber v. Grafmiller, 109 Ind. 206.

When speaking of the cost of doing certain work by the use of terms which may have an enlarged or limited meaning, depending upon the specific work 'Concerning which the terms are used, such terms should be construed with reference to the work to which they are applied. Thus when it it asked what will bé the cost of macadamizing a street already graded and prepared to receive the rock, the word * ‘macadamizing” would be given a meaning consistent with, the thing to which it was applied. And so if, as. in this case, the street is to be graded', if the foundation for the macadam is to be prepared an answer to a question worded in the identical language would include the cost of grading. As we gather from the record, the defendants do not contend that the estimate-does not include the cost of grading that part of the street between the curbs and upon which the macadam was actually laid. The grading authorized by the proceedings of the council was a grading of the entire-street, and this, as we have seen, includes the sidewalks.

We concede to defendants that there must be an estimate of the cost made as a prerequisite to the contract for the work. Mills v. City of Detroit, 95 Mich. 422; Wilkins v. City of Detroit, 46 Mich. 120; Worthington v. Covington, 82 Ky. 265; Butler v. City of Detroit, 43 Mich. 552. But this estimate need not necessarily show the different portions or parts of the-work which go to make up the result, provided that, appears when considered with the ordinance. In this respect our statutory charter differs from some of those construed in some of the authorities cited by defendants.

The judgment will be reversed and the cause-remanded with directions t'o enter judgment for plaintiff.

All concur.