64 Mo. App. 430 | Mo. Ct. App. | 1896
The municipal assembly of the city of St. Louis authorized that portion of Morgan street between Sarah street and Newstead avenue to be graded, curbed, guttered and a Telford pavement laid on the roadway. The contract for that portion of the work was awarded to the plaintiff. The ordinance also provided for the construction of sidewalks, which was not covered by plaintiff’s contract; The defendant is the owner of parts of lots 28 and 29 in block 4571. The portions of the lots are adjacent to and front thirty-two and one half feet on that portion of Morgan street above referred to. When the work was completed, the board of public improvements assessed against the
Section 6 of the ordinance provides that “the ordinance shall be void, unless within twenty days from its approval there shall be deposited with the city treasurer the sum of $127, to be credited to the fund set apart for street improvements.” Section 21, article 111, of the charter provides that “no ordinance passed by the. assembly, except the general appropriation ordinance, shall take effect or be in force until ten days after its approval, unless in case of emergency,” etc. It is argued that section 6, supra, renders the entire ordinance invalid, for the reason that an ordinance can not be made to take effect upon contingencies, but must take effect either upon an emergency properly declared in the ordinance, or upon the expiration of ten days after its approval. It is clear that no ordinance can become a law until the expiration of ten days after its approval, unless it contains an emergency clause. This charter requirement was enacted to prevent ordinances from taking effect immediately upon their approval, which ought not to be, for the public or persons interested ought to be advised of them a reasonable time before they become operative. As to this, the charter is mandatory. But it does not follow that an ordinance may not be made to depend upon the happening of a future event within a reasonable time after the expiration of the ten days. Such .a
A reference to two eases, which discuss and apply the principle, will show the unsoundness of defendant’s argument. In the case of City v. Russell, 116 Mo. 248, the municipal assembly of the city of St. Louis attempted by the passage of an ordinance to confer on the taxpayers in each block the right to determine whether a livery stable should be erected therein. The regulation
We can not declare the ordinance invalid, because it fails to prescribe the width of the sidewalks. This may have been provided for by a general ordinance applicable to that particular street. It is essential, however, that the width of sidewalks and the materials of which they are to be constructed or reconstructed should be determined either by general or special ordinance, as these things can not be left to the discretion of the street commissioner. Whether there is a general ordinance determining the dimensions of sidewalks to be constructed on Morgan street was not shown, and in that respect the plaintiff failed in his proof, and for that reason the instruction asked by the defendant ought to have been given. It may be remarked here that the tax bill did not name the defendant as oiuner, which under the charter (sec. 24, art. 6) was necessary to make the bill prima facie evidence of the defendant’s liability. Stadler v. Roth, 59 Mo. 400; Vieths v. Planet Property Co., ante, p. 207; Farrell v. Rammelkamp, ante, p. 425.
We are asked to declare the ordinance void, because the street commissioner was not present when final action was taken by the board of public improvements
The city charter provides that bills for ordinances, shall be signed by the presiding officer of each house-in open session and in the presence of the house (art. 3, sec. 22). It is claimed by the defendant that the-ordinance for the improvement in question is void, because the speaker of the house of delegates did not-sign it in the presence of the house. The entry in the-journal is that, “the ordinance was read at length, and, no objections being made, the speaker in open session, affixed his signature thereto in accordance with the provisions of the charter.” The defendant’s objection is that the entry does not. show that the ordinance was-■signed in the presence of the house. We can not conceive how the ordinance could be signed in open session and not in the presence of the house.
Objection is made that the description of the land, as contained in the tax bill, is too vague and indefinite-to fix a lien, and that, as there are two separate lots, there should have been a tax bill against each lot. The tax bill correctly describes the property as parts of lots-28 and 29, in city block 4571, having an aggregate front.
That two tax bills should have been issued is out •of the question. The two fractional lots are adjacent -and are used and appropriated as one property, and must be so treated. The defendant testified that he ■used the property as a residence; that his house was built partly on each lot, and that the whole premises were inclosed by a single fence.
Lastly, it is insisted that the tax bill is void, for the reason that the plaintiff’s contract did not include the entire work, the construction of the sidewalk having been omitted. The right to subdivide the work is ■denied. There is nothing in the charter requiring the entire work to be let to one person, but on the contrary it shows that it may be subdivided. Section 15, article 6, provides that the board of public improvements may enter into annual contracts for the construction of ■all sideivalhs which may be ordered by ordinance, or may become necessary to be done during the year. This point needs no further discussion. But the authorities are to the effect that the entire work provided for by the ordinance must be completed before adjoining property can be charged with any portion of its cost. The reason is that the property owners might be willing to bear the expense of a completed street, and unwilling
With the concurrence of the other judges, the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.