Perkinson v. Partridge

3 Mo. App. 60 | Mo. Ct. App. | 1876

Baicewell, J.,

delivered the opinion of the court.

This is a suit on a special tax bill for curbing, guttering, paving, macadamizing, and making cross-walks on Ware Avenue, in the city of St. Louis.

It appears from the pleadings and evidence that the city of St. Louis, under ordinance 7479, contracted with plaintiff to do the work set out in the bill. The tax bill is dated June 1, 1872.

On the trial defendant read in evidence ordinance 7479 and contract 2338, under which the work was done.

The ordinance authorizes the city engineer to cause Ware Avenue, from Lucas Avenue to Olive Street, to be “ graded, curbed, guttered, macadamized, the cross-walks and sidewalks to be constructed, and all proper connections and intersections with other streets to be made,” and provides $1,260 for the cost of grading, to be paid by the city “ out of the fund set apart for the improvement of streets in the Second District.”

This ordinance was not accompanied with plans, profiles, and specifications; and no plans, profiles, or specifications of the work were ever submitted to the City Council.

The defendant asked the following instruction, which was refused:

“If from the evidence it appears that the city engineer did not submit to the City Council plans, profiles, and estimates of the entire cost of the work of improving Ware Avenue, set forth in ordinance 7479 read in evidence, before said ordinance was passed, then said ordinance is void, and plaintiff cannot recover.”

To the refusal of this and other instructions defendant excepted.

No instructions were given.

There was a verdict and judgment for $357.79 ; the bill was adjudged a lien on the property sought to be charged, and execution awarded against the property.

This judgment must be set aside. The ordinance was in part for work to be done and paid for by the city, and it made an appropriation for that purpose. The grading for which the city was to pay was a part of, and the foundation of, the whole work; and, though an estimate of the cost of the grading was made by the engineer and incorporated in the ordinance, there were no plans, profiles, or specifications for this work submitted to the City Council as the law requires. Chart. March 4, 1870, art. 8, sec. 17. The provision for eradina- cannot be stricken out from the ordinance and the ordinance sustained as to its other provisions. The street cannot be paved before it is graded.

The Supreme Court has decided that, where the work is to be done and paid for by the city, the plans, profiles, and estimates called for by the charter must be submitted to the City Council. The State ex rel. v. City of St. Louis, 56 Mo. 277.

The judgment is reversed and the cause remanded.

All the judges concur.