City of St. Louis ex rel. Carroll v. Hardy

35 Mo. 261 | Mo. | 1864

Bay, Judge,

delivered the opinion of the court.

We are of opinion that the demurrer in this case was properly overruled. Under the' existing law the cost of paving, macadamizing, constructing and repairing streets-in the City of St. Louis, is chargeable to the property adjoining, or in the vicinity of the work ; and' it is made the duty of the city engineer- (or other officer having charge of the work) to compute the cost thereof, and to assess it as- a special tax against the adjoining property fronting on the w-ork 'done, and to make out a certified- bill of such assessment against •each lot of' ground' chargeable with the work done, in the name of the owner, and to deliver such certified bill to the contractor for the work, who is authorized to collect the same by ordinary process of law, in the name of the City of St. Louis, to his own use. (See Sess. Acts 1-859-60', p. 382.) Such certified bill is also made a lien against the ground, or lot therein described, and is prima facie evidence of the validity of the charge and the liability of the owner of the-property.

The main ground of objection to the petition urged by defendant is, that it fails to set out the contract betwéen the city and Carroll. This, we think, was unnecessary ; for the suit is not brought upon the contract, nor could it be, for Hardy is neither a party nor privy to it. It is, as properly stated by respondent, an action to recover a special tax bill issued by the city under the authority of an act of the Legislature. The general averment that the city contracted with Carroll’ to do the work, and that in pursuance of such contract said Carroll, did the'work and completed the same on the 27th September, 1860, and that the amount due him from defendant, as assessed by the city engineer, is the true value of the work, we think sufficient, without giving in detail all the provisions of the contract.

Another objection made to the petition is, that the suit is brought in the name of the- city to the use of Carroll. In making this objection, the counsel overlooked the fact that the act of the 16tli January, 1860, expressly requires the suit to: be so-brought. A third ground of demurrer relates to the jurisdiction, of the court, but - no allusion is made to. it in appellant’s brief, and we are unable to perceive any force in the objection.

Nor do we think the point with reference to city ordinance No. 4370 well taken. We see no reason why the ordinance should be set out in the petition. Had the cause proceeded to trial, it might have become necessary to introduce the ordinance in evidence, to show the authority of the city engineer to cause the work to be done, but it could have answered no other purpose whatever. But even if it was necessary to plead the ordinance, we think the mode in which it is done in the petition is sufficient. (2 R. C. 1855, § 52-3, p. 1239.) The petition is somewhat informally drawn, but we think it contains facts sufficient to constitute a cause of action.

The other judges concurring, the judgment will be affirmed.