68 Mo. App. 483 | Mo. Ct. App. | 1897
This is a suit to enforce certain special tax bills for paving a portion of College avenue in the city of Trenton. The tax bills are attacked for various alleged failures by the city authorities to follow the statute relating to such improvements when done by cities of the third class, to which Trenton belongs. The trial court held adversely to the defendant on the several objections, decided the tax bills a valid charge, and from a judgment enforcing the same, defendant has appealed.
The proceedings were begun on May 29,1894, when the city council by resolution declared its opinion that it was necessary that “ all that part of College avenue between Water street and the bridge on said College avenue over the tracks of the Chicago, Rock Island & Pacific Railroad in said city be paved and macadamized” at the expense of the abutting real estate, etc. It was further ordered that such
On July 24, the city council, by resolution, directed the city clerk to give notice, by seven days’ publication in a newspaper, that sealed bids for doing the work would be received until August 1, 1894, at 6 o’clock p. M.; - and such notice was given describing the work, as previously, for the paving “ all that portion of College avenue from the intersection of said avenue with Water street to the bridge thereon over the tracks of the Chicago, Eock Island & Pacific Eailroad Company.”' This notice was given. And on August 1 the proceedings of the city council show that on motion the bid of plaintiff Gardner was accepted and the work let to him,, the city counsellor being directed to prepare bond, contract, etc.
This contract was submitted in the shape of an ordinance, which the council passed, and the mayor approved August 6, 1894. By its terms G. W. Gardner was awarded the contract for paving “ all that portion of College avenue between the intersection of said avenue with Water street and the bridge on said avenue
Gardner seems to have finished the work before October 3, 1894, and on that day the council by ordinance accepted the same and ordered the issue of tax bills.
For the purposes of this opinion these are all the facts that need be stated.
I. As already stated, Trenton is a city of the third class, and in making these street improvements is governed by the late amended charter for such cities. Laws 1893, page 65'. Under this statute, section 108, the city council is authorized, by ordinance, to provide for paving its streets at the expense of the abutting lot owners.
Section 110 of the same statute reads: “ When the council shall deem it necessary to pave, macadamize , gutter, curb, or otherwise improve any street, avenue, alley, or other highway, or any part thereof, within the limits of the city, for which a special tax is to be levied, as herein provided, the council shall, by resolution, declare such work or improvement necessary to be done, and cause such a resolution to be published in some newspaper published in the city, for two consecutive weeks, and if a majority of the resident owners of the-property liable to taxation therefor shall not,within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvements to be made and to contract therefor, and to levy the tax as herein provided. * * *
It was the duty of the city authorities first to determine upon definite plans and specifications for the work proposed, and then advertise for bids thereon, so that those who may desire may understanding^ make bids for its performance. Not only is this just to the parties who bid, but it insures the benefits of competition and takes away the opportunity for corrupt practice by city officials and scheming contractors. If other bidders on the work in question had known that only that portion of the street outside the street car tracks was to be paved, then it may be that a less price would have been offered. And further, had the property owners known that only a portion of the street was to be paved, a majority might have objected and defeated the proposed improvement.
Other questions are argued in briefs of counsel, but in view of our opinion on the foregoing, it becomes unnecessary to discuss them.
The judgment will be reversed. All concur. Ellison, J., as to second paragraph only.
in plaintiff’s motion for rehearing our attention is called for the first time to a late decision of the supreme court, City of Springfield to 'use of Central National Bank v. Weaver, 37 S. W. Rep. 509. And in accordance with our duty, we now modify the foregoing opinion so as to conform to the views expressed in that case.
“Reading the resolution in connection with these ordinances, there can be no reasonable doubt that the improvement contemplated by the resolution only included that part of the street on each side of the railway track, and was not intended to include the part occupied by it. It must be held, therefore, that the resolution imparted notice to defendants, and others interested, of the extent of the improvement.” See second paragraph of supreme court .opinion in case before cited.
In the case at bar no such ordinances were before the court. There was nothing to show that any such duty of paving was imposed on the street railway line at Trenton. It is, of course, well settled that the courts will not take judicial notice of city ordinances; they must be proved as other facts. Plaintiff’s counsel in their argument on motion for rehearing have volunteered the statement that such ordinances do exist in the city of Trenton, and have, indeed, assumed to quote the same. But we must confine ourselves to the record before us 'and can not allow counsel to add thereto in this irregular manner. But in view of the claim made that such ordinances do exist, we think it just to modify our mandate and remand the cause for another trial so that such ordinances may be .shown.
pu'biicat'ioü : Third. In view of another trial, it may be well to say that we see no merit in other objections to the tax bills raised by defendant in his brief. As to the publication of the preliminary resolution the charter provides, that the council should “cause such a resolution to be pub-
Fourth. Neither is there any force in the contention that the city engineer, in place of the city council, assumed to levy the assessments on the particular lots chargeable with the costs of the improvement. It is true that the tax bills recite that the engineer “computed the cost and apportioned the same among the several lots,” etc., still the ordinance of January 7, 1895, specifically charged each lot with its proportionate share and these tax bills were issued in the exact form then and there prescribed by said ordinance. While the city engineer probably performed the labor of computation and apportionment, yet the council, by ordinance, ratified and approved the same and specifically directed the amount to be charged against each piece of property. This was a sufficient compliance with the law. McQuiddy v. Vineyard, 60 Mo. App. 610-616.