Verdin v. City of St. Louis

33 S.W. 480, 131 Mo. 26, 1895 Mo. LEXIS 69

• Court: Supreme Court of Missouri
• Decided: November 19, 1895
• Status: Published

Opinions

Burgess, J.

the plaintiffs, as trustees under the will of James Verdin, deceased, to cancel a certain tax bill, if issued, by the defendant city in favor of the Barber Asphalt Paving Company; if not issued, to restrain the issuance and delivery thereof, and to divest the lien of said tax bill. The Barber Asphalt Company answered. The defendants, city of St. Louis, McMath, and Sturgeon, filed a demurrer to the petition, which was sustained, the petition dismissed, and judgment rendered in favor of defendants against the plaintiffs, and for costs, from which judgment they appealed.

This is a suit in equity brought by The salient facts, as they appear from the allegations in the petition, are about as follows:

A petition for the improvement of Jefferson avenue was circulated among a portion of the interested property holders, but was not signed by a majority of them, nor by persons owning a majority of the front feet of property to be affected by the costs of the improvements. It was not signed by plaintiffs, nor were they aware of any desire on the part of the property holders to have the street reconstructed with Trinidad lake asphaltum until after the contract was let. The petition was never published, and in the order of the board of public improvements fixing a day for considering said reconstruction the petition is not mentioned. In the notice published, “all citizens interested in any of the improvements” are requested to attend a meeting at its office in the city hall, at the hour of 10 a. m., on the twentieth day of September, 1892, for the purpose of reconstructing with asphaltum certain streets named in said notice, and, among the rest, Jefferson avenue. The notice did not say “Trinidad lake asphaltum,” but simply said “asphaltum.”

On the same day the board considered the reconstruction of Jefferson avenue, and recommended its reconstruction with asphaltum, and ordered its committee on street department to prepare and submit an ordinance for such reconstruction. An ordinance (number 17151) was, in pursuance of said recommendation, reported and adopted by the municipal assembly, providing for the reconstruction of the streets with Trinidad lake asphaltum. This ordinance also directed the board to . contract at the same time for the maintenance of the street for nine years. Thereafter, on April 11, 1893, the president of the board of public improvements was by said board directed to advertise sundry lettings for public work, and May 9, 1893, at '12 m., was set for opening bids thereunder. The advertisement was: “For reconstruction, with best quality of Trinidad lake asphalt, Jefferson avenue, from Adams street to Market street, and for maintenance of the same; the streets to be maintained in good condition for a term of nine years beginning one year after the completion and acceptance of the work.”

Among these specifications and forms of contract exhibited in the office of the street commissioner for the information of bidders for said work referred to in the advertisement, was a provision that said commissioner should have the right to make alterations in the line, grade, form, or dimensions of the workto be let, either before or after the commencement of the work, and plaintiffs aver that all bidders were bound to take notice thereof; that there was no notice given that the board ofpublicimprovementswouldatanytimeconsider the matter of maintenance of said Jefferson avenue after reconstruction, or that such matter would be, taken into consideration in the same letting, bidding, and contract; that in so doing said board claims to have been acting by authority of section number 542 of the Eevised Ordinances of said city (revision 1887), by which it is provided that, whenever a street of St. Louis is to be improved on petition of the adjoining owners, said board may submit to the municipal assembly a bill for letting on contract the constructing or reconstructing and maintenance for a term of years, and after such bill shall have become a law said board shall advertise for proposals, including construction or reconstruction and maintenance, under the same regulations as for the improvement of streets.

The petition alleges that said ordinance is null and void because repugnant to the scheme and charter of St. Louis, and especially section 27, article 6; that as to the maintenance of the roadway of that part of Jefferson avenue so reconstructed, said board did not submit to the assembly of defendant city estimates of the amount of cost and maintenance, either as to material, or anything connected therewith, nor was it specified what kind of asphalt should be used in its maintenance; that when the bid was opened therefor, referred to in said ordinance, there was found to be but one under said letting for the reconstruction and maintenance of Jefferson avenue, and that was by defendant Barber Asphalt Company, for the sum of $18,508.80, for which sum it obtained the contract; that the Barber Asphalt Company is a corporation, and has, by concession or grant from the government of the island of Trinidad, the exclusive right to remove and take asphalt from the asphalt or pitch lake on that island.

The petition further alleges: “That outside of said pitch lake, and outside of the government lands in the island of Trinidad, all covered by the monopoly created by said concessions and the monopoly of the defendant Barber company, there are other sources of supply of asphalt, of just as good a quality for every purpose, in the island of Trinidad itself, and in the island Pedermales, sixteen miles southwest from said Trinidad island, also in the state of Bermudez, in the republic of Venezuela, and also other deposits in the republic of Mexico and in the island of Cuba and in the United States of America, from all of which other deposits large quantities have been and are now being taken and sold in countries presenting a demand for the same, where there is free competition. And plaintiffs now aver that there is no good or sufficient reason for the city of St. Louis, by recommendation of its board of public improvements or by ordinance, to direct the reconstruction of its streets with Trinidad lake asphalt, to the exclusion of other asphalts of an equally good quality, above referred to. By so limiting the reconstruction of its streets to the material known as ‘Trinidad lake asphalt/ all such reconstruction is thrown into the hands of the defendants, the Barber Asphalt Paving Company, which results in the city and its property owners being required to pay a larger price for such reconstruction than they would have to pay if the material for reconstruction were not limited to Trinidad lake asphalt; that while the petition aforesaid framed and circulated among the property owners on Jefferson avenue by the agents and solicitors of the defendant, the Barber Asphalt Paving Company, did in terms ask for the reconstruction of said street with Trinidad' lake asphalt, which is controlled by the monopoly hereinbefore alleged, nevertheless said petition was not signed by a majority of the property holders to be affected by the costs of such reconstruction ; and the board of public improvements, in finally selecting the material for such reconstruction, and recommending an ordinance therefor, were not in any manner bound by law, duty, or morals to follow the suggestion of said petition as to Trinidad lake asphalt, nor to recommend such reconstruction of Trinidad lake asphalt, of which the said Barber Asphalt Paving Company owns and exercises a monopoly and as to which there can be no competition, as required by the charter of the city of St. Louis.

“On the contrary, as plaintiffs aver, said board of public improvements were bound by law, duty, and morals, in the interest of said city and of all said property owners, to select and recommend for such reconstruction a genuine asphalt, suitable for the purpose, to be taken and drawn from any deposit or source of supply anywhere in the world, so as to bring to the city, its taxpayers and property owners, aforesaid, the benefit of the competition contemplated by the charter of said city. That the limitation of said board, and by the said city of St. Louis, in said ordinance for said reconstruction, to Trinidad lake asphalt, destroyed all competition as to asphalt, andas to said reconstru etion; and plaintiffs aver that wherever, in the past, the ordinance of the city of St. Louis for the reconstruction of any of the streets with asphalt has contained a limitation to Trinidad lake asphalt, there has been but one bid, and that by the Barber Asphalt Company, and under the condition of things as heretofore set forth, there never can be but one bid under any such ordinance. That inasmuch as the said Barber Asphalt Paving Company is of necessity the sole and ' only bidder on any such contracts, and was of necessity the only bidder for the work of reconstruction aforesaid on Jefferson avenue, the said company was practically given a monopoly and exclusive control of the bids for all other material, limestone, cement, and concrete incidentally necessary for the work of said reconstruction, and enabled said Barber Asphalt Paving Company to obtain an excessive and exorbitant price and compensation, for the limestone used in said concrete, and for the six-inch curbing required in said construction, and for removing old roadway.

“And plaintiffs aver that under its bid and contract, under said ordinance, the said Barber Asphalt Paving Company was enabled to charge and obtain the price of ninety-six cents per linear foot for six-inch curbing, when in other contracts for the reconstruction of other streets with wooden pavements, or with granite pavements, where there was no limit as to the source of supply of material to be used and where there was competition, the contractors bid and received only a price running from sixty-five to seventy-five cents per linear foot for similar six inch stone curbing; and obtained $1.18 per square for removing old roadway, when the same could have been done for a profit at (0.75) seventy-five cents per squáre.”

The petition charges that “in view of the asphalt monopoly hereinbefore referred to, and which is aided and abetted by the city of St. Louis, in providing that the reconstruction of said Jefferson avenue should be limited to Trinidad lake asphalt, the defendant, the Barber Asphalt Paving Company, is enabled to impose upon the owners of the property to be affected by the-costs of such reconstruction an excessive, exorbitant, and fraudulent price for the reconstruction of said street with Trinidad lake asphalt, while the city of St. Louis obtains tbe maintenance of said street at a price about equal to, or less, than the costs of sucb maintenance.”

Tbe petition then proceeds as follows:

“Plaintiffs further state that by reason of tbe premises,. and by reason of tbe repugnance of said ordinance number 17151 to tbe provisions of tbe charter of tbe city of St. Louis, and particularly to tbe provisions of the said charter hereinbefore referred to and set out, tbe said ordinance is null, and void, of no effect, and tbe said contract between tbe defendant, tbe city of St. Louis, and tbe defendant, tbe Barber Asphalt Paving Company, is null and void, and of no effect, and tbe property of these plaintiffs can not in any manner be bound for tbe payment of tbe reconstruction provided for in said ordinance.

“That heretofore, to wit, on tbe twenty-sixth day of July, 1893, at tbe beginning of tbe work by tbe said Barber Asphalt Paving Company under said contract, these plaintiffs caused to be served upon tbe said defendant, tbe Barber Asphalt Paving Company, a written notice, that, for tbe reasons set forth in this petition, plaintiffs would contest and deny tbe validity of said ordinance number 17151, and tbe validity of tbe awarding of said work of reconstruction, and tbe legality and validity of the assessment of any part of tbe cost of said reconstruction, and tbe validity and legality of any special tax bills for tbe cost of said reconstruction, so far as sucb would or could affect tbe property of plaintiffs hereinbefore described. Nevertheless tbe defendant, tbe Barber Asphalt Paving Company, proceeded with said work of reconstruction and has finished tbe same. And tbe city of St. Louis by its executive officers is about to, and will, unless restrained by tbe orders of this court, make out, sign, and certify special tax bills against plaintiffs’ property for the costs of such reconstruction, for about, and not to exceed, the amount of $400, and such tax bills will be registered in the office of the comptroller of the said city of St. Louis.

“Plaintiffs allege that by the terms of section 25 of article 6 of the scheme and charter of the said city of St. Louis, the said special tax bills, when so signed, certified, and registered, as provided for by the terms of said charter, and by the terms of said ordinance 17151, will become a lien on the property of petitioners hereinbefore described, and will be a cloud upon plaintiffs’ title to said land, and will damage and injure plaintiffs’ title to-, and the value of, said land,

“Plaintiffs allege that they have no adequate remedy at law in the premises, but can only have a proper and adequate remedy and relief in a court of equity, where all such matters are properly cognizable. Plaintiffs further aver that unless the defendant, the city of St. Louis, is enjoined and.restrained from issuing, registering, and delivering said special tax bills against plaintiffs’ property, as aforesaid, the plaintiffs will suffer irreparable injury.”

At the beginning of the work under said contract by the Barber Asphalt Paving Company, it was duly notified of plaintiffs’ intention to contest and deny the validity of said ordinance number 17151, and everything done thereunder.

■ It is contended by defendants that the allegations of the petition do not show that there is a cloud upon plaintiffs’ title; that they do not show a proper'case for equitable interference, and do not state sufficient facts to give a court of equity jurisdiction.

I. Eirst as to the cloud upon plaintiffs’ title. No principle of law is better settled than that by a demurrer to a petition all material facts alleged therein, for the purposes of the demurrer are admitted as being true. Dodson v. Lomax, 118 Mo. 555; McKinzie v. Mathews, 59 Mo. 99; Butler v. Lawson, 72 Mo. 227. And it is only where the petition is so “wholly wanting in necessary averments that it fails to state a cause of action,” that it is demurrable. State ex rel. v. Carroll, 63 Mo. 156.

When the material facts alleged in the petition, which it is'unnecessary to again repeat, are admitted to be true, we are unable to see the force of that contention. Under the rulings of this court the petition is not subject to the objections urged against it.

Page v. St. Louis, 20 Mo. 137, is relied upon by defendants as holding that an injunction will not be allowed to restrain the exercise of the municipal authority of a city in the levy and collection of a tax, upon the ground that the passage of an ordinance was in violation of the city charter; but in that case plaintiff maintained that no liens had been created on his real estate, nor was it claimed that by reason of the tax proceedings a cloud was cast upon the plaintiff’s title, and in this very important matter that case differs from the case in hand.

Warren v. Paving Co., 115 Mo. 572, was not an injunctive proceeding, but was for the cancellation of certain tax bills issued to defendants for street paving, and the question now under consideration was not passed upon in that case. Moreover, the ground upon which it was insisted that the tax bills should be can-celled was because of methods adopted by the city authorities of the city of Westport, which, it was held, were in their discretion, which could not be.raised after the work had been done in the absence of fraud or collusion.

Michael v. St. Louis, 112 Mo. 610, was an action to enjoin the collection of certain assessments for benefits to the property of plaintiffs, upon the ground that their property was assessed with benefits in a condemnation proceeding to open a street to which they were not parties and had no notice, and the property assessed derived no benefit from the improvements, and it was held that, “whether property assessed with benefits in a street opening proceeding was in fact benefited by the street improvement, and the extent of such benefit, if any, are not triable in a suit to enforce the tax bills.

A somewhat similar question was involved in Buddecke v. Ziegenhein, 122 Mo. 239, where the same rule was announced; but in this case the questions are different, which call in question the validity of the ordinances and contract under which the tax bills had been, or were to be, issued, and which, when issued, became a lien and cloud upon plaintiffs’ title, and not to mere irregularities in the proceedings.

In Lockwood v. St. Louis, 24 Mo. 20, in passing upon a similar question to the one now under consideration, Leonard, J., in speaking for the court, said: “This court has allowed relief by injunction in several cases where real property was about to be sold for the nonpayment of taxes assessed by a1 municipal corporation, but has never allowed it, that I am aware of, to prevent a sale of personal property. The distinction is obvious enough. In one case, a cloud is about to be drawn over a land title, and the court interferes to prevent it; in the other, the legal remedy is full and ample, and no reason exists for the interposition of equity. That case was followed and approved in Fowler v. St. Joseph, 37 Mo. 229; Leslie v. St. Louis, 47 Mo. 474; McPike v. Pen, 51 Mo. 63; Bank v. Evans, 51 Mo. 335; Bank v. City of Kansas, 73 Mo. 555.

In McPike v. Pen, supra, Bliss, J., in speaking for the court, said: “The court has uniformly enjoined the sale of land for the payment of taxes, upon the ground that a cloud is thereby cast upon the title, although the assessment was illegal.”

Asimilar question was before the court.again in Rubey v. Shain, 54 Mo. 211, when it was said: “It may be asked, then, what is the remedy in cases where the assessment is illegal, or where it is based on an illegal act of the county court. The answer is that the taxpayer, according to the decision of this court in the case of Newmeyer v. The Mo. & Miss. R. R. Co., 52 Mo. 81, may arrest the execution of an illegal subscription or other order of the county court.” That ease was followed and approved in Ranney v. Bader, 67 Mo. 476, and in Valle v. Ziegler, 84 Mo. 218.

The petition in this case alleges that the proceedings under which the tax bills were about to be issued were without authority and void. It also avers in what particular.

Another contention is, that plaintiffs have an adequate remedy at law and can not maintain this suit. In Parks v. Bank, 97 Mo. 130, Barclay, J., said:

“The ‘legal remedy’ is said to consist in interposing an equitable defense to any action of ejectment that might be brought on the strength of the sheriff’s deed under the judgment. Such defense, no doubt, could be interposed, but suppose no such action of ejectment were promptly begun? Plaintiff’s equitable estate and ownership antedated the judgment, but that fact did not appear in the public record of titles. The proof thereof rested on facts outside. A sheriff’s deed under the judgment would, therefore, apparently carry the title as against the judgment debtor’s deed, recorded before the execution sale, but executed after the judgment. That consequence of the sale justified the exercise of the preventive jurisdiction of equity to avoid the casting of a cloud on plaintiff’s title.”

Johnson v. Milwaukee, 40 Wis. 315, was a proceeding by a property owner whose, property had been assessed for benefits, to restrain the issue of the certificate to the contractor charging plaintiff’s lot with the amount of benefits and creating a lien against it, upon the ground that the contract made with the city for the work was void. Ryan, O. J., in speaking for the court said: “Some objection was made to the right of the respondent to maintain this action, on the ground that the assessment is not a cloud upon his title. We are unable to agree with the learned counsel, and can not think that the cases which he cites supports his position. The assessment has been made, the work has been done, and the city is about to issue a certificate to the contractor charging the respondent’s lot, to go into the tax roll if unpaid. Whenever the lien might be held to attach, it appears to us that the facts constitute a cloud upon the plaintiff’s title, which a court of equity will remove, within the doctrine of Judd v. Fox Lake, 28 Wis. 583. No prudent purchaser would take the property at its full value, in view ‘of the impending, unauthorized execution and delivery’ of the certificate, which would operate as an apparent charge or incumbrance on it.” That case is on all fours with this, and announces the doctrine for which we contend.

The tax bills, although illegally issued, were a cloud upon plaintiffs’ title and rendered the property unsalable in the market. No one would have purchased or advanced money upon the property with the tax bills-against it even though they were void, as the defects in the proceedings, previous to their issue, were such as to require legal acumen to discover them, and whether they appear from the face of the proceedings, or by extrinsic evidence, courts of equity will entertain jurisdiction to remove the cloud.

It is true that plaintiffs might have defended against a suit instituted against them on the tax bills, but they were not bound to wait for the institution of such suit, before proceeding to have them canceled, and the cloud on their title created thereby removed, but had the right to do as they did, to act promptly, that no one might be deceived or misled by their silence and want of action. The petition alleges that the contractors were notified about the time they began the work that the legality of the proceeding under which it was being done would be contested.

But it is insisted by defendants that as the petition alleges that the tax bills, and proceedings under which they were issued, were null and void, no cloud was thereby created on plantiff’s title, and that they are not entitled to relief, but the authorities seem to be adverse to this contention also.

In Bank v. Evans, 51 Mo. 335 (loc. cit. 344, 345), in passing upon a deed void upon its face it was said: “Yet the facts of this invalidity would not be manifest to persons unskilled in the law, nor even to the most skillful without close investigation of the several acts of congress, and the authority of the courts to regulate such sales, and therefore the existence of such a deed would throw a cloud over the title of the real owner and render the land less salable. * * * After the final trial and decree the question was raised by motion in arrest, that there was no equity in plaintiffs’ petition, and the point is made here that their remedy, if any, is complete at law. • I have already intimated that such a title as plaintiffs claim under is sufficient to cast a cloud over the defendant’s title and is such as would render their land unsalable in the market. I know that the authorities are somewhat conflicting in regard to what sort of titles constitute a cloud, so as to warrant a court of equity to interfere and remove it. Some of the courts hold, that if the defect is apparent on the deed, the law will not entertain jurisdiction; but I think that the weight of authority and reason sustain the position, that if the defect is such as to require legal acumen to discover it, whether it appears on the deed or proceedings, or is to be proven -aliunde, courts of equity entertain jurisdiction to remove the cloud.”

Again, in State ex rel. v. Philips, 97 Mo. 331 (loc. cit. 339), which was a suit instituted for the purpose of having the cloud removed from relator’s property created by certain tax bills issued for the purpose of building a sewer by Kansas City and which were void for the want of authority in the city under its charter to build a sewer, Sherwood, J., in speaking for the court, said: “And the special tax bills, though void, being an apparent lien upon the land, furnished ample ground for the relief plaintiff sought. It has frequently been decided by this court that injunction will lie to enjoin the sale of land whereby a cloud would be cast on the title. [Citing Bank v. City of Kansas, 73 Mo. 555, and other cases.] And whatever facts furnish basis for an injunction in such cases will also furnish basis for having the tax bill declared void, it being optional with the plaintiff which branch of equitable relief he will seek.” See, also, Railroad v. Apperson, 97 Mo. 300; Gardner v. Terry, 99 Mo. 523.

In the last case it is said that: “The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created.” (P. 526.) See, also, Harrington v. Utterbach, 57 Mo. 519.

This may be said to be the almost universal rule upon this subject, where the levying and collecting of void and illegal taxes and assessments upon real property are sought to be enjoined, and the plaintiffs have no remedy at law. 2 Dill. Mun. Corp., sec. 914.

2. The plaintiffs insist that the notice published by the board of public improvements that a special meeting would be held to consider the matter of reconstruction of Jefferson avenue with asphaltum was insufficient, inasmuch as it did not comply with the provision of section 14, article 6, of the charter of the defendant city which provides that:

“No ordinance for construction or reconstruction of any streets can be passed unless recommended by the board of public improvements. That the board may of its own motion and upon the petition of any reputable freeholder of property on any street, alley, or highway, designate a day on which they will consider the improvement of such street, alley, or highway, and shall give two weeks’ notice in the paper doing the city printing of the time, place, and object of their meeting. On such day, if the owners of a major part of the property on the line of the proposed improvement shall remonstrate against the same, the board shall consider such remonstrance, and if said board, shall by an unanimous vote of all its members approve such/proposed improvement, they shall cause an ordinance for the same to be prepared, and report the same, with the reasons for their action and the remonstrance, to the assembly. If such a majority of the property owners fail to remonstrate, or shall petition said board for such improvement, the board may, by a vote of the majority of its members, approve the same, and shall cause an ordinance to be prepared and reported to the assembly therefor.”

The notice which was given of the letting is as follows:

“Public Notice.

“Office of President Board of 1 Public Improvements. J “St. Louis, September 1, 1892.

“Public notice is hereby given that the board of public improvements will hold a special meeting at the hour of 10 a. m., of the twentieth day of September, 1892, at its office in the city hall, for the purpose of considering the matter of reconstructing, with asphaltum, streets as hereinafter mentioned, viz.:

“No. 3396. Petition No. 5160 — For the reconstruction, with asphaltum, Carr street from Broadway to Seventh street.

“No. 3397. Petition No. 5162 — For the reconstruction, with asphaltum, Jefferson avenue from Adams street to Market street.

“No. 3398. Petition No. 5163 — For the reconstruction, with asphaltum, Jefferson avenue from Market street to Morgan street.

“No. 3399. Petition No. 5170 — For the reconstruction, with asphaltum, Carr street from Seventh to Eighth street.

“No. 3400. Board’s motion for petition No. 5176 — For asphaltum, Vandeventer avenue from Ohio street to Page avenue now Page boulevard. All citizens interested in any of the improvements above mentioned are requested to attend.

“By order of the board.

(Signed) “M. L. Holman, President pro tern.

“Attest: Emory S. Foster, Secretary.”

The notice seems to be a compliance with the city charter in so far as reconstruction with asphaltum is concerned, and contained all that it required as to the asphaltum. It is difficult to see how any person interested could have been misled or deceived thereby. While the notice did not state the place or location that the asphaltum was to be had or obtained, it did say, “asphaltum,” and the mere fact that that which was determined upon was Lake Trinidad asphaltum did not vitiate the notice, nor did it make any real or substantial difference. We do not think the objection tenable in so far as the asphaltum is concerned.

3. It is contended that section 542 of the Revised Ordinances of the city is repugnant to the letter and spirit of the provisions of the charter of the city of St. Louis, and, therefore, null and void and of no effect, and that the action of the city in letting the contract for reconstruction and maintenance together is obnoxious and unlawful. Said section is as follows:

“Sec. 542. Whenever a street is to be improved, either on the motion of the board of public improvements or on petition of the adjoining property owners, the board of public improvements may submit to the municipal assembly a bill for letting in one contract the work of constructing or reconstructing such street and of maintaining it in good condition for a term of years; and after such bill has become a law the board of public improvements shall advertise for proposals, including the construction or reconstruction and maintenance under the same regulations as are provided for the improvement of streets; but th© advertisement shall, in addition to what is prescribed for other street improvements, state the term during which the street is to be maintained in good condition and the amount oE bond which the contractor will be required to furnish to secure the execution of the contract for maintenance, in addition to the bond which under existing regulations has to be furnished for all contracts for street improvements. The letting of the work, the awarding of the contract and the approval of the contract and of the bonds shall be carried out as now provided for other street improvements. In canvassing the proposals, the lowest bid shall be ascertained by taking the aggregate amount of the cost of construction or reconstruction, as the case may be, and the total cost of maintenance, for the term of years designated by the ordinance. The special tax bills against the adjoining property for the work of construction or reconstruction shall be issued whenever the work has been completed and accepted. The contract shall provide that the obligation of the contractor to maintain the streets in good condition shall commence one year after the completion and acceptance of the work of construction or reconstruction, and the contract price shall be paid semiannually out of the city treasury, on the certificate of the street commissioner that the work has been performed in accordance with the contract and specifications. The bond to be given to insure the maintenance of streets during the term agreed upon shall be $15 for every square (of one hundred superficial feet) of the street embraced in the contract. The contract shall provide that the contractor shall, whenever notified by the street commissioner that any repairs are required, at once make such repairs at his own expense, and if they are not made within proper time the street commissioner shall have power to cause such repairs to be made, and the cost thereof shall be paid out of the fund provided for the payment of contracts for street maintenance, and the amount shall be deducted from any money then due under the contract, or which may thereafter become due. And it shall further provide, that if at any time during the term for which the contract for the maintenance of the streets is in force the pavement of such street or any part thereof has deteriorated to such an extent as to require, in the opinion of the board of public improvements, reconstruction, the street commissioner may, with the approval of the board of public improvements and of the mayor, notify the contractor that reconstruction is necessary, and that the contractor shall, within three months after receiving such notice, reconstruct the whole or such part of the pavement with the same kind of material as heretofore applied, or with some other material approved by the board of public improvements. And the contract shall also provide, that if the contractor fails to reconstruct the street within three months after having been notified, the board of public improvements may, with the approval of the mayor, cancel the contract and relet the work of reconstructing the pavement, and that the cost of such reconstruction shall be paid- by the city and the amount collected by suit from the contractor or his sureties, not to exceed $15 per square of pavement, included in the contract. And the contract shall provide that whenever any repairs of the street are made necessary from the construction of sewers, th.e laying of pipes or telegraph wires or from any other disturbance of the pavement by parties acting under permits issued by the city, the contractor for the maintenance of the street shall, on notification from the street commissioner, immediately make all necessary repairs in conformity with the specification for this class of work. The cost of all such repairs, exclusive of trenching and back-filling, which shall be done by the parties who hold the permits and in a manner as now required by existing ordinances, shall be paid for at the full contract price for a superficial square of new pavement out of the fund set apart for the payment of contracts for the maintenance of streets, and the amount shall be certified by the street commissioner to the auditor, who shall reimburse, by transfer, the aforesaid fund from the funds of the proper department, if the repairs were made necessary by the construction of any public improvement; and out of the funds to be deposited by persons obtaining permits for opening streets before such permits are granted, if the repairs are made necessary by work done under such permits. And the contract shall further provide that the contractor for the maintenance of such streets shall have the right to make all repairs which become necessary by the construction of any public improvement or by the work done by private parties under' permits given by the city.”

It is argued that the maintenance of Jefferson avenue for nine years amounts to nothing more than “repairs” on the street for nine years, within the meaning of section 27, article 6, of the city charter; that it involves expenditures for labor and material, and is public work, within the meaning of the section; that it is a separate matter from reconstruction, and should have been let to contract separately ' and independently thereof; that ordinance 17151 for the maintenance and reconstruction of Jefferson avenue is null and void, because, as an ordinance for maintenance,— being for the public work for the repair of Jefferson avenue for nine years, — it should specify the material to be used in such repairs and an estimate of the cost of maintenance, as required by section 15, article 6, of the charter.

By said ,section 27, article 6, it is provided that any public work, or repairs thereof, and to fix the price or rate therefor, shall be let out by the contract to the lowest responsible bidder, subject to the approval of the council, and any other mode of letting out work shall be null and void. Does the maintenance of Jefferson avenue for nine years, within the meaning of said section, mean, or amount, to repairs'?

It must be conceded that such work amounts to the expenditure of labor and money, and that it has no direct connection with the work of reconstruction. While it is the duty of the board of public improvements, in all cases, except in case of necessary repairs requiring prompt attention, to prepare and submit to the assembly estimates of costs of any proposed work, and, under the direction of the ordinance, advertise for bids, and to let out such work by contract to the lowest responsible bidder, subject to the approval of the council, no such thing was ever- done in this case. The costs and expenses attending the maintenance of streets are paid by the city out of the funds set apart annually for street repairs — reconstruction of streets. Section 6, ordinance 17151. The costs of repairs of all streets and highways, and cleaning the same, are also paid out of the general fund of the city. Section 18, article 6, supra.

The word “maintain” does not mean to provide or construct, but means to keep up; to keep from change; to preserve (Worcest. Dict.) ; to hold or keep in any particular state or condition; to keep up (Webst. Dict.).

In Moon v. Durden, 2 Exch. 21, it was said: “The verb ‘to maintain,’ * * * signifies to support what has already been brought into existence.” See, also, Railroad v. Godman, 4 N. E. Rep. (Ind.) 163.

“‘To repair ’ means to restore to a sound or good state after decay, injury, dilapidation or partial destruction. (Webster.)” Street Railway, etc., Co. v. Galveston, 69 Tex. loc. cit. 663. See, also, Railroad v. Pittsburg, 80 Pa. St. loc. cit. 76.

It will thus be seen that “maintenance” and “repair” when applied to a street practically mean one and the same thing. Maintenance, being a separate and distinct public work, must be contracted for like any other public work. The material with which it is to be done must be specified by the board, and an estimate of the cost should be sent to the municipal assembly, together with an ordinance recommending such repairs. Nothing of that kind was done in this case, but the bid for reconstruction and maintenance were both let together, at the same time and to the same party, with no estimate as to the cost of the latter, which could only be made, under the charter, after the repairs became necessary. There was no legal obstacle in the way to one person becoming the contractor for both the reconstruction and maintenance, if under the city charter and ordinance the contract could be let to the lowest bidder, but in any event as the costs of reconstruction are assessed against the property holders, while the costs of maintenance are paid by the city, the lettings must necessarily have been separate, and upon different estimates.

The board of public improvements of the defendant city had, previous to the time of letting the contract for reconstruction and maintenance to the Barber Asphalt Company, publicly announced as a rule for the conduct of said board that no bid for maintenance which should exceed fifty cents per square would be considered or recommended, which was estimated to be about cost, or less than cost, and by letting the contract for maintenance and reconstruction together the bidder was enabled to make a bid for such maintenance at about costs, and thereby protect himself against any possible loss on account of his contract for maintenance by bidding a higher price for reconstruction.

Under section 18, article 6, supra, the paving, curbing, guttering, sidewalks, and the materials for the roadways, the repairs of alleys and sidewalks, are charged upon the adjoining property as a special tax, while the cost of their maintenance is paid by the city, and there is no apparent reason why this work could not be done as well by one contractor as another. But by letting to the defendant, the Barber Asphalt Paving Company, the contract for reconstruction, and at the same time, and as part of the same contract, the contract for the maintenance of Jefferson avenue for the period of nine years at the price of $1,962, the contractor was enabled to obtain from the property holders, in advance, payment in whole or in part for the maintenance which, under the charter, is required to be paid by the city; and if, after the work of reconstruction is completed, the property holders refuse to pay at once, a special tax bill is immediately issued, which is a lien upon the property for the cost of the work of maintenance, which has not been done, and which the contractor may never do.

People ex rel. v. Maher, 56 Hun, 81, was upon objections filed to the letting of a contract to the National Vulcanite Company for the grading and paving a street in the city of Albany, New York, with Trinidad sheet asphalt. The contract was objected to because of the fact that it contained a provision which required the contractor to keep in repair the pavement, laid in pursuance of the provision thereof, for the period of seven years, from and after the acceptance by the city, without expense to said city or to the abutting property owners. It was held (we quote from the syllabi), “that the necessary effect of this contract was to charge upon the property owners the cost of keeping the avenue in repair for seven years, in violation of the provision of the act of the legislature which charged such expense upon the city at large. That anything in the contract which imposed upon the property owners more than the obligation of having the pavement well constructed in the outset was unjust to them.”

In the case in hand by letting the reconstruction, and maintenance of the street together, plaintiffs were compelled to pay part of the expense of maintenance, while by law they were only responsible, if at all, for the expense of reconstruction.

Moreover, ordinance number 17151 provides for the reconstruction of Jefferson avenue, by taking up and removing the old pavement of the roadway, preparing the roadbed, renewing and readjusting the curbing, laying a roadway pavement of best quality of Trinidad lake asphalt on a concrete base, except between the rails of the street railway occupying the street, which last mentioned space was to be paved with granite blocks, laid on a bed of sand, the curbing to be of limestone; while ordinance number 542 provides for the letting of such work all in one contract, which is in direct conflict with section 27, supra, of the charter, which provides for the letting of such contracts to the lowest bidder, as provided for purchases by the commissioner of supplies, while by section 29, article 4, of the charter it is provided that: "In advertising for proposals to furnish supplies, quantity and quality of all articles shall be fully stated, and any bidder may bid for any one article named.”

The notice of the letting of the contract said nothing as to the differeut kinds of work to be done, or materials to be furnished in reconstruction, although estimates for such work and materials were properly made, but simply gave notice that the board of public improvements would hold a special meeting, at a time fixed, at 'its office in the city hall, for the purpose of considering the matter of reconstructing with asphaltum Jefferson avenue and other streets. As to work and material, other than asphaltum, there was no notice at all, and even if there had been no one could have bid on any part or parcel thereof because of the fact that the ordinance provides for the reconstruction with Trinidad lake asphalt, a monopolized article, in one contract, which not only prevented competition in bidding as to that part of the contract, but for any other work or materials also.

No part of the cost of maintenance of the street could be imposed upon the plaintiffs, in the absence of express authority under the charter to do so. We, therefore, conclude that section 542 of the Revised Ordinances of the defendant city is in conflict with, and contrary to, the meaning and spirit of the city charter, and null and void.

Nor do we think the fact that the contractor is required to give bond for the maintenance of the streets legalizes the contract. Here the contract for reconstructing the street, and the maintenance of it after construction, were entirely different matters, having no immediate or necessary connection whatever with each other.

Moreover, ordinance 17151, which provides for the reconstruction and maintenance of Jefferson avenue, being for public work, should have specified the material to be used in such maintenance as required by section 15, article 6, of the charter, and, as it failed to do so, is also null and void.

4. Another contention on the part of the plaintiffs is that the ordinance and the contract between the city and the Barber Asphalt Paving Company are void because said company had a monopoly of material by virtue of a contract with the government of the island of Trinidad, by which it controls all of the Lake Trinidad asphalt. The petition alleges that there are other sources of supply of asphalt of just as good quality for every purpose as Trinidad lake asphalt. By the demurrer the allegations thus made stand admitted.

By section 27, article 6, of defendant’s charter it is provided that the board of public improvements shall in all cases, except in case of necessary repairs requiring prompt attention, advertise for bids as provided for purchases by the commissioner of supplies and let out said work by contract to the lowest responsible bidder, subject to the approval of the council, and that any other mode of letting out work shall be held as illegal and void. Section 29, article 4, of the charter provides that “in advertising for proposals to furnish supplies, quantity and quality of articles shall be fully stated, and any bidder may bid for any one article named. The award for each article shall in all cases be made to the lowest bidder therefor.”

The purposes and intention of the sections of the city charter just referred to were, that there should be competition in bidding for different parts of all public improvements, and by letting the contract for reconstruction by the use of Trinidad lake asphalt of which the Barber Asphalt Paving Company were the sole and exclusive owners, and maintenance of the same material, prevented all competition in bidding by the owners of other asphalt of equal merit, and not in accord with the charter provision of the city.

While the city authorities, assuming to act under its charter, passed an ordinance to reconstruct Jefferson avenue in said city with Trinidad lake asphalt and awarded the contract to the Barber Asphalt Paving Company, who owned the exclusive right to use said asphalt in the reconstruction of said avenue, and when reconstructed to maintain it for nine years with the same material, the ordinance was in violation of the charter in not letting each contract to the lowest bidder, and by the very terms of section 27, article 6, supra, is in excess of its authority, and the ordinance and contract thereunder “illegal and void.”

Dean v. Charlton, 23 Wis. 590, was an action by plaintiff to enjoin the sale of plaintiffs’ lands for an assessment imposed on them for paving the streets in front of them paved with what is known as Nicholson pavement. The Nicholson pavement is a patented right, and was owned for the state of Wisconsin by one firm in the city of Milwaukee. The charter of the city, Madison, where the improvements were made, required all contracts for such improvements to be let to the lowest bidder. It was held, that the city could not contract at the expense of adjoining lot owners, the right to lay the pavement with that which was patented and owned by one firm, and the injunction was made perpetual. In the course of the opinion it was said:

“It is said that the charter authorizes a contract only for such work as is open to competition, and that this work was not open to competition, because nobody had any legal right to do it except the one firm that owned the patent. TJpon these facts alone the objection seems to me unanswerable. And nothing seems to be necessary beyond the simple statement of the requirements of the charter as to the mode of letting work, and the fact that this right was a monopoly, to show that the charter is inapplicable to it, and that a contract for this work would be in violation of the necessary implication from its provisions. Indeed, the counsel for the respondent, by their course of argument, seemed tacitly to admit that there was an apparent incongruity in applying the provisions of the charter to a contract for such work as this. * * * It seems to me, therefore, a conclusion derivable from the very nature of the case, that competition could not be, and was not, preserved in the letting of this contract; and that it was, therefore, beyond the scope and in violation of the spirit of the charter. * ' * * It was suggested that even though this assessment should be held illegal, still there was nothing to show it to be inequitable, and, therefore, a court of equity ought not to interfere. But that principle has never been applied to these special assessments. And certainly it could not be applied where there is no legal authority to contract for the work at all, to pay for which the assessment was imposed.”

This case was followed and approved in Dolan v. Mayor, 4 Abb. Pr. (N. S.) 397.

Nicolson Pavement Company v. Painter, 35 Cal. 699, was an action to recover a street assessment for laying down the Nicholson pavement, in a street in the city and county of San Francisco, California. The law required that such contracts should be let to the lowest bidder, while the board of supervisors of said city advertised for proposals for bids to put down said Nicholson pavement, a patent owned by the Nicholson Pavement Company, who had the sole and exclusive right to lay the same in said city. There was but one bid for the contract. The court said:

“We repeat what we have so often had occasion to say, that in the matter of street improvements the board of supervisors have whatever power the statutes upon that subject have conferred upon them, and no other; and that the power which they possess must be exercised in the mode prescribed by the statute, and in no other; for, as was well said by Mr. Chief Justice Field, in Zottman’s Case, 20 Cal. 102, ‘the mode in such cases constitutes the measure of the power/ * * * To advertise for sealed proposals where there can be but one bidder, to open them in open session, to examine and publicly declare them, and thereupon award the work to the lowest responsible bidder, where there is and can be but one, * * * would be to play as broad a farce as was ever enacted behind the footlights. The law does not permit itself to be thus trifled with, nor allow its ministers to thus substitute pretense for performance.”

In Burgess v. City of Jefferson, 21 La. Ann. 143, it was held (we quote from the syllabi): “Paragraph twelve of section seven of the charter of the city of Jefferson (Laws of 1867, number 57), requires that all contracts for opening, widening, paving, and improving the streets, authorized by the common council, shall be adjudicated by the controller, under regulations prescribed by the council, to the lowest bidder. An adjudication by direction of the council, by the controller, of a contract for paving one of the streets of the city with the Nicolson pavement to a firm or company having the exclusive right to make such pavement within the limits of the state of Louisiana is in conflict with this provision of the statute; and the owners of property fronting on the street paved with this kind of pavement by a company having the exclusive right, can not be compelled to pay the two thirds of the cost of making the pavement. The principle of competition enunciated by the statute must be observed by the council in letting out contracts for the improvement of the streets, otherwise the owners of property fronting on the streets improved can not be compelled to pay the charges assessed against them for making the improvement.”

In State v. City of Elizabeth, 35 N. J. L. 351, the contemplated improvement was the repairing of one of the streets in defendant city, with the Stow foundation pavement, a patented article, which only a.- certain company could lay in said city. The city charter required that all contracts for improvements should be given to the lowest bidder. In the opinion of the court it was said:

“In the case of John Coar et al. v. Jersey City, at the present term of this court, it is decided that, where the resolution of the city council was to pave with Nicholson pavement, that being a patented pavement, and the right bo use it in Jersey City exclusively held by the only bidder for the work, there was not, and could not be, any competition within the intent of the charter, and for that reason the resolution and proceedings, awarding the contract to such bidder, should be set aside. It requires considerable ingenuity to avoid such a reasonable conclusion from such a plain and direct statutory requirement. No one can compete, on equal terms, with a man who controls the sale of the thing needed. Bidding, under such a condition, is but a form, and the result must be almost necessarily deceptive and injurious to persons who are to be assessed for payment. There can hardly be a lowest bidder, within the intent of the charter, where there can be, in reality, but one bid. * * * I must give a hearty approval of the expression used by Judge Campbell in the Detroit case [17 Mich. 246], when he says: ‘I can conceive no more fruitful source of possible inducements to corruption than the monopoly of paving the streets of a large city.’ ”

So in People ex rel. v. Van Nort, 65 Barb. 331, it was said that: “Where the work to be done (in paving a street) is under a patent, there is no. propriety in advertising for proposals, or in attempting to carry out the provision that the work shall be given to the lowest bidder; there being no opportunity for any competition, in consequence of the patent.”

Judge Dillon in his work on Municipal Corporations, volume 1, section 467, says: “The supreme court of Michigan has affirmed, while the supreme court of Wisconsin and of other states have denied, the proposition that where a city charter provides that no contracts shall be made by the city except with the lotoest Udder, after advertisement of proposals, it does not prohibit the corporation from contracting to lay Nicholson pavement though the right to lay it is patented and owned by a single firm. The question is close; but there seems, so far, to be a tendency in the courts to adopt the Wisconsin view.”

In 'Michigan, New York, and Missouri such ordinances and contracts have been sustained. Hobart v. Detroit, 17 Mich. 246; In re Dugro, 50 N. Y. 513; Barber, etc., Co. v. Hunt, 100 Mo. 22. The same view seems to have been taken by the supreme court of Kansas in Yarnold v. Lawrence, 15 Kan. 126, though the question was not decided.

The weight of authority is decidedly in accord with the Wisconsin decision which seems to be in consonance with reason and justice.

We do not question the right of a municipality to contract for the use of a patented or monopolized article in constructing, reconstructing or maintaining its streets, one or both, when by so doing no provision of its charter is violated; as, for instance, when not required to let all such contracts to the lowest bidder. Warren v. Paving Co., 115 Mo. 572. The question involved is not alone one of conflict between the city ordinances in question and the provisions of the city charter, as seems to be supposed; but is also as to the power of the municipal assembly to pass said ordinances with respect to letting contracts for work for street improvements in a manner not authorized by the charter. The municipal assembly of the city of St. Louis, in respect to street improvements, have whatever power is conferred upon them by statute for that purpose, and no other. “The mode in such cases constitutes the measure of the power.” Justice Field, in Zottman’s Case, 20 Cal. 102. And when by its charter it says that all contracts for-street improvements should be let to the lowest bidder, it means that no such contract can be let for a patented or monopolized article for which there can be no competition in bidding.

5. If the contract was void under the charter, for the want of authority in the city to enter into it, and wholly illegal, plaintiffs can not be held liable for any part of the work done against their will and protests. Upon this subject Sherwood, J., in speaking for the court in Keating v. Kansas City, 84 Mo. 415, said: “But if the contract with the city was void, owing to the defect in the ordinance, as doubtless it was, this gives no right of action to the plaintiff; for from a a void contract, no cause of action can arise whether of quantum meruit or one sounding in damages.” See, also, Mayor v. Eschbach, 18 Md. 276; McDonald v. Mayor, 68 N. Y. 23.

So in Cheeney v. Brookfield, 60 Mo. 54, it was said: “Those who deal with the officers of a corporation must ascertain, at their peril, what they will indeed be conclusively presumed to know, that these public agents are acting strictly within the sphere limited and prescribed by law, and outside of which they are utterly powerless to act.” See, also, Cole v. Skrainka, 37 Mo. App. 436; Construction Co. v. Geist, 37 Mo. App. 512.

6. The Barber Asphalt Paving Company contends that plaintiffs have no standing in a court of equity, for, as it alleges, they stood by in’silence, and saw money invested upon the faith of the ordinance and contract authorizing the improvements, and failed to make any objection, if any they had, and that in consequence thereof they are now estopped by their silence and want of action.

No such rule applies in case work is being done upon a public street of a city without authority, as under a void ordinance or contract.’ Plaintiffs had no more control over the street than any other person, whether citizen of the city of St. Louis, or of some other place. It is not like a case where one person makes valuable improvements upon the land of another with his knowledge, and without his objection. In such case the owner will not be permitted to take advantage of his own wrong, in accepting the benefits and advantages to his property and not make remuneration therefor, but such is not this ease. It is only in case of some irregularity in doing the work, or invalidity of some part of the contract for street improvements, that an abutting property owner will be required as a condition precedent to an order enjoining the collection of a general tax the payment or tender of the sum justly due. Johnson v. Duer, 115 Mo. 366; Gibson v. Owens, 115 Mo. 258. The law as applicable to the facts of this case is correctly announced in Keane v. Klausman, 21 Mo. App. 485, as follows:

“The defendant did not cause the making of the contract or the building of the sewer, and was not called upon to interpose against either, or else incur a liability having no foundation in law. In Perkinson v. McGrath, 9 Mo. App. 26, a suit on a special tax bill for curbing, guttering, macadamizing, and making cross walks, the property owner demanded of the contractor that he do the work in accordance with his contract, and afterwards, through the city engineer, compelled him to do it over a second time. It was held that this did not estop the owner from defending on the ground of invalidity of the ordinance, it not appearing that he had actual notice of its invalidity, and did not tend to prove an acceptance of the work, or an agreement to pay for it. That bore far more resemblance to a case for an estoppel than does the present. There can be no pretense here that the contractors were induced to take any steps in the work by the action or nonaction of the defendant. No obligation was upon her to follow up the several steps leading to the contract and assure herself of their fitness. But it did rest upon the contractors to do so, since they were to take every risk of their insufficiency.”

In the case at bar plaintiffs by no act of theirs misled the contractors, or induced them to believe that they would pay for the work, but protested against it from the beginning, and notified them that they would contest the legality of the proceedings under which they were acting. They could not have done more, under the circumstances.

From these considerations the judgment should be reversed and the cause remanded. It is so ordered. Barclay, J., concurs in the result; G-antt, J., and Macearlane, J., agree to paragraphs 1, 2, 5and 6, and so much of paragraph 3 as holds the ordinances in question in requiring contracts for reconstruction and maintenance to be let in one contract as stated in the petition to be in violation of the charter of the city and void. As to paragraph 4, they feel bound by the decision in Barber, etc., Go. v. Hunt, 100 Mo. 22, and for that reason do not agree to - what is said in that paragraph tending to overrule that decision.

Brace, C. J., and Sherwood, J., dissent., Robinson, J., absent.

SEPARATE OPINION.

Barclay, J.

Considering the close division of opinion in this court and the probability of further proceedings in the circuit court, it seems appropriate to indicate the grounds of my concurrence in the judgment here. The discussion of disputed points has been already so prolonged that it is unnecessary to do more now than to merely indicate my position toward them as shortly as possible without elaborate argument.

1. A special tax bill of the sort mentioned in this case is by law prima facie evidence o.f liability of the property for the charge it purports to impose (R. S. 1889, p. 2125, sec. 25), and it is an ostensible lien on the land for two years from the date of its issue by the municipal authorities. R. S. 1889, p. 2125, sec. 26. In my opinion injunction is available to prevent the issuance of such a tax bill when about to be issued under an illegal ordinance, or to cancel it as a cloud on the title after issue, in the circumstances shown in this case. Rich v. Braxton (1895), 158 U. S. 375.

2. The scheme of procedure adopted by the board of public improvements under ordinance 542 (R. O., St. Louis, 1887) in respect of reconstruction and maintenance of the proposed street is illegal, because the plain effect and obvious intent of the scheme are to put upon the owner of the real property (properly chargeable by special tax with the cost of reconstruction) a portion of the expense of repairs of the improved street for a long term of years. The latter expense the city is bound by the charter to bear, and can not shuffle off upon the adjacent property in the mode attempted by the scheme referred to, as described in the petition in this suit.

3. “Maintenance” is a word whose meaning is greatly influenced by its context. As used in the ordinance (542) before the court, it appears to me to include the idea of putting on the repairs needed to maintain the street in its completed condition. The city can not lawfully east upon the adjacent property (under the guise of reconstruction) a part of the burden of repairs, which the charter requires the city to bear. By calling that burden “maintenance” the nature of the work is not changed, nor is the liability of the property owner under the charter enlarged.

4. The two charges for reconstruction and maintenance have been so blended (by the scheme of special taxation adopted in the case before the court) that the valid charge for reconstruction can not be definitely ascertained and severed from the invalid charge for repairs sought to be thrown upon the adjacent property. Some part of the expense properly chargeable to the city for repairs is embodied in the special tax laid upon plaintiff’s property for alleged reconstruction of the street. That is the effect (and obviously the intended effect) of the scheme originating in ordinance 542, as worked out by the board of public improvements, according to the account given of it by the petition. Hence the assessment for reconstruction (as now made) can not be enforced, containing, as it does, an unascertained and uncertain illegal element.

5. The city may lawfully contract for the purchase of a monopolized article, no less than for articles-protected by letters patent. The method prescribed for letting public work does not require as an essential to-a valid contract that there should be at least two bidders for any proposed work. The steps indicated by the charter as necessary to a final contract show that the municipal authorities are invested with a discretion to approve the offer of a single bidder for such work,, if the price is reasonable and the bid otherwise satisfactory and correct. If this was not so, the city, in projecting public improvements, would be deprived of' the right to enjoy the benefit of many modern inventions and discoveries; a conclusion which we should not suppose was intended, without a very clear expression of such intent in the charter.

Moreover, the proposition stated at the opening of this paragraph was declared most positively in Barber, etc., Co. v. Hunt (1890), 100 Mo. 22 (13 S. W. Rep. 98) by a unanimous court. Prior to that time, in McCormack v. Patchin (1873), 53 Mo. 33, a special tax bill for Nicholson pavement in a street had been sustained by the supreme court without any such question being started. Since the Hunt case, the published court reports give us a glimpse of the large investments that. have been made in public work of the kind referred to in that judgment. It appears to me that we should closely adhere to that decision on the rule stare decisis; though by that remark no doubt is intended to be cast upon the correctness of the ruling as an original one.

6. Upon the sufficiency of notice of the meeting of the board to consider the reconstruction of Jefferson avenue, my concurrence is fully given to the views expressed in the second paragraph of the learned opinion of Judge Burgess.

7. The acts of plaintiffs in respect of the proposed improvement seem to me to furnish no basis for holding plaintiffs estopped to enjoin the enforcement of the special tax in question.