City of Marshall ex rel. Jacoby v. Rainey

78 Mo. App. 416, 1899 Mo. App. LEXIS 68

• Court: Missouri Court of Appeals
• Decided: February 6, 1899
• Status: Published

Opinion

ELLISON, J.

This is an action on a special tax bill for building a sidewalk, issued to plaintiff by the city of Marshall. The trial court made a special finding of facts and gave judgment for plaintiff.

Marshall is a city of the fourth class governed by the laws of 1895, page 65. It is therein provided that upon the petition of ten citizens for a sidewalk tke board of aldermen shall have power to contract for the building of such walk. The contract to be let to the lowest and best bidder Upon plans and specifications filed by the city engineer with the city clerk, after having advertised for bids for one week. Sec. 95. It is,- however, provided by section 91 of said act, that before any contract is let there must be an estimate of the cost made by the engineer and submitted to the board, the contract price in no case to exceed the estimate. It is further provided in said act that notice of the ordinance shall be served on the property holders affected and they have thirty days in which to build the walk themselves; but if they fail then the city contracts for its construction as aforesaid.

It is clear from the foregoing recital of the statutory requirements that before the board has power to pass an ordinance to construct a sidewalk, it must be petitioned for by at least ten citizens. That there must be plans and specifications upon which bids are to be based; and that there must be at least one week’s advertisement for bids.

In this case there was a petition for a sidewalk five feet four inches wide on the north side of lots 8, 4, 7, 8, 9, 10, block 21 and “also” on the west side of lot 2 in block 16. The board granted the petition by enacting an ordinance for a walk on the west side of lot 2 and ignored that for a walk on the north side of the lots named.

tax bills: several: petition for sidewalk: power of aldermen. It is one of defendant’s contentions that this can not be done — that the board must pass an .ordinance for all the walk petitioned for, or none. We rule the point against defendant. It will be noticed that the petition was for two walks. The board had the power, m its discretion, to grant the prayer of the petition for one and reject or ignore the other. In the opinion of the board, there may not have been a necessity for the one ignored. The statute does not make it compulsory on the board to take steps towards the building of a walk upon the presentation of a petition. The language of the law is that upon such petition the board “shall have power to make contracts,” etc. It may be the board could act unreasonably in passing upon such questions, though as to this it is not necessary for us to say. We do not see that the case of Independence v. Gates, 110 Mo. 382, bears on the question presented. Another contention is that there was no estimate made of the cost of the work prior to enacting the ordinance. We

—: estimate for sidewalk ordinance. concede that it was necessary to make this estimate as a prerequisite to passing the ordinance. Independence v. Briggs, 58 Mo. App. 241. But the court found such estimate was made and .the work let within its limit. The court did not find whether the estimate was laid before the board (though it was filed with the clerk of the board) before it took action, but, in the absence of evidence to the contrary we will assume the board had such estimate before it, since its action shows it must have considered the estimate. See Springfield v. Knott, 49 Mo. App. 617. It is next insisted that there were no bids taken before the work was let. No record is presented here showing that

-: sidewalk contracts: bids. bids were taken, except the contract itself which shows that it was let on bids had for that purpQga "We are 0f 0pixLxon that this was sufficient to show the work was let competitively by taking bids, in the absence, of evidence that in point of fact no bids were taken.

-:-: specifications. It is next insisted that there were no specifications for the work filed with the city clerk. The court found the facts against this contention. Indeed, the court’s finding of facts seems to have included all the necessary prerequisites to letting the work and issuing the bill. It is true there was an absence of evidence in some particulars that should have been presented. But all of the main requisites were shown and from which others must legitimately be presumed in the absence of evidence to the contrary. What we have said disposes of the questions made by the declarations of law asked.

The judgment must therefore be affirmed.

All concur.