134 Mo. App. 607 | Mo. Ct. App. | 1908
Lead Opinion
Trenton is a city of the third class and operates its government under the terms of the general statutes providing charters for such cities. It issued certain taxbills against property abutting on a street for paving such street. Plaintiff is one of the
By the terms of the charter it is necessary that, a resolution be adopted by the city council declaring the paving to he necessary and an intention to do it. The charter provides that “foot walks” at intersections or crossings shall be paid for out of the general revenue, while paving shall be paid for by taxbills against abut-, ting property. [Secs. 5858, 5859, R. S. 1899; Law's 1901, p. 65.] The resolution declared an intention to pave the street with vitrified brick between the curbs, and the ordinance aftenvards passed provided for paving the street at all intersections. Plaintiff insists that foot Avalks were thus provided for as paving Avhicli must be paid by abutting property, Avhen they should have been provided for as foot or cross walks and paid for from the general revenue. The charter in providing that crossings at street intersections should be paid for out of the general revenue, contemplated walks which would be distinct from the paving. But when the paving is of such nature as to operate as a crossing and no separate construction of crossings is provided for, it seems reasonable that a separate mode of payment would not be required and the place where, ordinarily; a crossing is constructed, Avould be- properly taken as paving and paid for by taxbills.
It is also urged that catch-basins, at intervals, were connected Avith an existing underground sewer so as to lead the surface water to the sewer, and that the tile pipe for this purpose and the work of connecting with the sewer were included in the cost of the paving; and while these were provided for in the ordinance, they were not included in the resolution; and that therefore the taxbills should be annulled on account of being in part the result of work not contemplated by the resolution. We are cited to City of Kirksville v. Coleman,
Another objection is embodied in the contention that competition was prevented by the action of the council in selecting certain makes of the various kinds of vitrified brick which were submitted. The action of the council in this respect was taken in such way as that by no possibility could it have interfered with competition or a proper letting. In effect the council merely added another make of vitrified brick with which to compete. And instead of being in the face of the cases of Schoenberg v. Field, 95 Mo. App. 241; Swift v. St. Louis, 180 Mo. 80, 95, and Curtice v. Schmidt, 202 Mo. 703, 722, they evidently were aiming to more fully comply with the rule in those cases by requiring full competition.
It is also contended that the assessment of the tax on plaintiff’s property was invalid, and the cases of Westport v. Mastin, 62 Mo. App. 647, and Sedalia v. Gallie, 49 Mo. App. 392, with others, are cited in support of the point. Here again we think the facts do not bring this case within the rule in those cases. The assessment here was properly made in due proportion to the number of feet held by the owner at that time.
There are other points of objection which we regard as without substance. Among, or along with such points, are several relating to questions of fact as. to the work, its proper construction, etc. These were determined by the trial court in keeping with the evidence and we will not disturb the judgment on that account. The argument, oral and written, for the respective parties, was full and complete, and we have given the entire record full consideration and have concluded the judgment should be affirmed.
Rehearing
ON MOTION FOR REHEARING.
A motion for rehearing was filed, in which among other things it is insisted that the provision in the specifications for “Iola Portland Cement, or better,” gives a monopoly to one manufacturer, viz., the Iola Portland Cement Company. We think not. The provision does
The matter really does not arise in this case for the reason that it was not included in plaintiff’s petition, which set out the various causes why the taxbills should be declared void (Jaicks v. Merrill, 201 Mo. 91, 109). It is true that at the close of the evidence plaintiff asked leave to amend his petition by inserting that the material was “a cement made by one individual or firm, which prevented competition.” The amendment was asked, as stated, “for the purpose of meeting the evidence.” The request was objected to by defendants and denied by the court. Plaintiff excepted, but failed to assign it in the motion for new trial. Aside from this, the ruling was proper on the ground that the evidence did not show the cement was made by only one party. The motion is overruled.
