182 Mo. App. 68 | Mo. Ct. App. | 1914
The appellant, the owner of certain taxbills, brings his appeal to this court complaining of the action of the trial court in rendering a decree in favor of the plaintiff (the respondent here), when, sitting in equity, it found “all the issues in favor of the plaintiff and against the defendant.”. The judgment was that the taxbills be canceled and declared null and void. The suit was brought by "Wills, a property owner in the city of Neosho, asking the relief which was subsequently granted in the decree. The defendant, the owner of the taxbills, denied generally the averments of the petition, and then asked for judgment on the taxbills.
A number of objections were raised to the validity of the taxbills, of which we will treat in regular order.
The first contention is that the resolution declaring the improvement necessary was fatally defective and insufficient to confer jurisdiction on the board of aider-men to contract for the work or levy an assessment therefor because it failed to set out enough to sufficiently advise the property owners of the character and kind of improvement proposed.
The resolution as published declared it “necessary to construct curb and gutter of cement (said curb
The respondent contends that the description, “curb and gutter of cement,” is not a sufficient description and that the absence of the plans and specifications from the clerk’s office, failed to give sufficient notice to property owners of the kind and character of work to be performed, and cites the following cases to uphold the contention: The Barber Asphalt Pav. Co. v. O’Brien, 128 Mo. App. 267, 107 S. W. 25; Schulte v. Currey, 173 Mo. App. 578, 158 S. W. 888; Coulter v. Construction Co., 131 Mo. App. 230, 110 S. W. 655, and other eases to the same effect. We are of the opinion that the cases cited fail to sustain the respondent in his contention, as “a curb and gutter of cement” is so well known and describes what is to be done in a general way so well that no more detailed description of the improvement would have given any better notice of what the city intended to do. It is true that in many cases will be found a description that seems on its face to be more definite because it goes more into detail in saying the same thing. It is only necessary that the resolution providing that the street improvement is necessary should state the nature and character of the improvement, and, as before stated, “a curb and gutter of cement” meets that requirement. In the
We have in this case the actual completed work in conformity to • the ordinance and resolution, and where the contract varies from the ordinance, if the work done conforms to the ordinance, the contract must yield. [See City of Excelsior Springs v. Ettenson, 120 Mo. App. 215, 228, 229; Barber Asphalt Pav. Co. v. Munn, 185 Mo. 552, 571, 83 S. W. 1062.]
The bid on this work was by the lineal foot regardless of how many feet were to be constructed, and as the bid in which this stray exception is found also contained the notice that the advertisement was under the resolution and ordinance passed, we cannot see
“With reference to the ten per cent additional charge in the plans and specifications when chats were used instead of sand or gravel, it may be stated that the plans and specifications charged a ten per cent increase on the estimate made provided chats were used instead of sand or gravel. This-estimate was on file when the ordinance was passed and such plans and specifications were made a part thereof. The bill of the contractor was sixty cents per lineal foot if chats were used and fifty-six cents per lineal foot in case sand and gravel were used. The evidence shows that an investigation revealed there was not sufficient gravel in or near Neosho, and consequently the engineer ordered that chats be used, which election was recognized in the ordinance, in the bid, and in the contract. The Eddy case (123 Mo. 546, 27 S. W. 471) cited by respondent contains language that would seem to hold that such a specification and contract would not validate taxbills for the reason that the council never fixed what material would go into the gutter. In'that case there were two different kinds of slabs either one of which could be used at a different price. That case, however, in our judgment, went off on the question that there was no ordinance passed on which a valid taxbill could be issued and attention is called in the opinion to this irregularity among a number of others, as shown by the record, in the procedure by the city authorities and the contractor in the issuance of those taxbills. We think this case falls within that class of cases of which Gallagher v. Smith, 55 Mo. App. 116, is an example. There, the council allowed a sidewalk to be made of pine or oak and there were some other materials, leaving it optional with the contractor what
With reference to the location of the curb, as will appear in this opinion, it is unnecessary to consider any of the locations except that of the curb on Wood street. It was placed ten feet from the property line. An ordinance passed in 1881 provided that the curbing on this street, composed of limestone, should be placed eight feet from the property line. There was, however, a general ordinance passed in 1878 providing that on all streets off the public square — which would include Wood street — the sidewalk should mot exceed ten feet in width. It is a matter of common knowledge that sidewalks are constructed between the curb line and the property line, and the ordinance which was passed in 1878 would necessarily imply that a curb line could be constructed at ten feet from the property line. There is no showing in the record that there is any general ordinance other than these mentioned that would affect this question. There is no showing that this alleged variance of two feet in any way impeded the traffic of the street or damaged the respondent’s property. He is standing on a bare technicality which to us seems of insufficient importance t'o require us to hold that the contract in this respect had not been substantially complied with.
As to the assessment of costs for the grading and excavation, we must hold with the respondent that this was improperly arrived at. The statute (See. 9403, R. S. 1909) provides that the entire excavation and grading shall be apportioned to the various lots along the improvement per front foot. In this case, each lot was assessed with .the actual cost of the work in front of it for excavation and grading. The intersections of the alley crossings which were paved back to the property line were in no sense curb or gutter and such charge against this property was unauthorized and the taxbills as to these amounts are void.
It results that we uphold the judgment of the trial court in declaring the taxbills disclosed in this record to have been issued against property abutting on Hickory and Lafayette streets null and void. We hold as to the taxbills issued against property as shown iu this record abutting on Wood street that they are
ON THE MOTIONS.
It has been called to our attention since the foregoing' opinion was filed that the corner lots on Wood street are charged not only with a tax of sixty cents per running foot for the cement curb and gutter, but an additional amount for the extensions beyond the property line. Under our statute, where the curb and gutter is placed beyond' the sidewalk line, it would seem that the gutter crossing the streets and the returns beyond the property line should be apportioned against all the property on the street covered by the contract. Therefore, the taxbills against lots abutting on streets and alleys intersecting Wood street are invalid as to the cement curb and gutter charge to the extent of all that portion thereof lying outside the owner’s front footage. It is true that the council did not apportion any of these items, nor the grading and excavating, as is required by the statute, as heretofore shown. The issuance of the taxbills, however, shows that it did apportion the work done in front of the various owners’ property by multiplying sixty cents — the contract price per front foot — by the front footage of the respective lots. This was the correct and only way that portion of the work could be apportioned, but the extensions aforesaid charged for and contained in the taxbills issued against lots abutting on the streets and alleys intersecting Wood street are improper items of charge.
With this modification, our order in the original opinion will stand, and the motion for rehearing filed by respondent and the motion to modify the opinion filed by appellant are both overruled.