46 Mo. 577 | Mo. | 1870
delivered the opinion of the court.
The decision made at the last March term of this court, in Sheehan v. Gleeson, disposes of most of the questions arising upon this record. The main difference between the two cases consists in this : that in the case referred to, the general as well as. the special ordinance' bearing upon the issues was pleaded and shown by the record; whereas the special ordinance alone appears here. The present suit is based upon city ordinance No. 5853, which simply authorizes the macadamizing of a particular street between given points, without furnishing any directions as to the manner of doing the work. That was left to the discretion of the engineer for aught the ordinance shows. The insufficiency of such an ordinance for the purposes contemplated was recognized in Sheehan v. Gleeson; but that case was helped -out by the provisions of the general ordinance prescribing the materials and directing the manner of macadamizing. But that ordinance, as already remarked, is not in the present record, and we can not take judicial notice of its existence. The case, as it stands, falls within the principle of the decisions in Ruggles v. Collier, and City to use of Murphy v. Clemens, 43 Mo. 353 and 395. The Circuit Court correctly held that ordinance 5853, apart from the general ordinance, was insufficient to sustain the plaintiff’s suit. But the plaintiff insists that he had made a prima facie case, independently of the ordinances, by putting in evidence the certified special tax bills sued on. That would have been so under the act of 1860 (Adj. Sess. Acts 1859-60, p. 383), which provided that the certified tax bill should be received as prima facie evidence of the validity of the claim, as well as of the fact that the work had been done. That particular provision was repealed in 1866, and a very different clause submitted in its place. By the
The judgment must be affirmed.
