Estes v. Owen

90 Mo. 113 | Mo. | 1886

Norton, J. —

This is a suit to recover of defendant certain tax bills for work done in repairing a macadamized street in the city of St. Joseph, in front of property owned by defendant. The work was dona under a contract awarded by the mayor and council, the same having been authorized by the ordinances of said city. The case was tried before the court without the intervention of a jury. The court sustained a demurrer to the evidence on the ground, as stated in the bill of exceptions, that under its charter the city of St. Joseph had no power to make the contract in suit, and authorize the work and repairing thereunder, when charged as a special tax against defendant’s property.

That the city, under its charter, has the power to cause its streets to be macadamized or paved at the cost of abutting property owners, is not denied, and is affirmed in the case of Morley v. Weakley, 86 Mo. 451. But according to the ruling of the trial court, it is claimed that when a street has once been macadamized and gets out of repair, that the city cannot cause it to be repaired at the cost of such property owners. The propriety of this ruling of the trial judge is the only question in this case, and it must be adjudged to be erroneous under the rulings made by this court in the cases of McCormick v. Patchen, 53 Mo. 33, and Farrar v. City of St. Louis, 80 Mo. 379, in which last cited case it is said: “The power to grade and improve streets is a legislative power, and a continuing one, unless there is some special restraint imposed in the charter of the corporation. The power to compel property owners to pave generally extends to compelling them to repair, when required by the municipal authorities.”

The judgment is reversed and cause remanded,

in which all the judges concur,