82 Mo. App. 386 | Mo. Ct. App. | 1900
This is a suit on a special tax bill issued to a contractor for the construction of a sidewalk in Eich Hill, a city of the fourth class and organized under the provisions of Article 5, chapter 30, Eevised Statutes 1889, as
There are many -objections urged here against the validity of the bill. "W-e deem if only necess'ary to notice two. It is provided by section 91 of the amendatory act, that before the board of -aldermen -shall make a -contract for building bridges, sidewalks, culverts or sewers, -or for paving, etc. an estimate of tbe cost shall be made by tbe city engineer, or other proper officer, -and submitted t’o- the hoard of -aldermen, and -that no contract should he entered into exceeding -such estimate. Such estimate is a prerequisite to the -authority to contract for hu-ilding sidewalks, and if not made th-e contract and tax- hill issued thereunder are void. Independence v. Briggs, 58 Mo. App. 241.
In this case an -estimate was made in the name of the proper officer -of Rich Hill, but it was not made by him. He delegated that duty to one or two other persons (a Mr. Tedf ord and M-r. Bird), by telling them that he “didn’t 'h-av-e much time” -and that if while he “was away anything comes up that-needed me for them -to go ahead for me in my place.” In answer to a question whether he -made an estimate he answered: “Mr. Tedf-ord did for me because I was working and probably away -at that time, hut if lanything -Cam© up h-e was to attend 'to it, and if my name was put to it Mr. Tedfo-rd -or Mr. Bird did it.” This was a wholly unwarranted proceeding. Instead -of an estimate 'being made by -the officer designated by law, we have one gotten, up, for aught appearing to the contrary, by one of two private persons.
This is sufficient t’o dispose of the case. But in view of the record showing that o-ther walks were provided for in this ordinance it may 'as well he further remarked tih'at the -ordinance itself is void for the reason that it does n-ot designate of what material -the walk shall he -composed. The provision intended to cover -this necessary part of the legislative function, is “that there shall he wooden, -stone or brick sidewalks
Plaintiff’s ease is not supported by that of Gallaher v. Smith, 55 Mo. App. 116. In that ease the city council ordered a wooden sidewalk to be constructed of pine, white or burr oak lumber. That is to say, the council was of the opinion that a wooden walk was necessary -and ordered it to be constructed of either white or burr.oak or pine; either of these materials would, in the judgment of the council, make a walk equally good. But in the present case different kinds of walks, composed of wholly different material, are named with no direction as to which of the widely different kind will he contracted for. There is an entire absence of legislative choice. In the Gallaher ease, Gill, J., said: “Oases may arise where from the face of the ordinance it may appear that the council had abandoned the exercise of its judgment and
Prom the foregoing views it results that the judgment should be affirmed.