The Lexington intelligencer. [volume] (Lexington, Mo.) 1901-1949, 1904-08-06
Council Meeting.


final passage. Before the vote was
taken William Aull read a legal
opinion which the council had asked
him to prepare upon the question Of
the liability Of the city for general
judgment for the refusal of the city
council to issue tax bills, in case the
contractor sustained his contention
Of compliance with contract.
The opinion fortified by numerous
citations was in substance as follows;
That where the contract provides
that the city shall not be liable for
any part of the cost Of improvements,
contractor cannot recover because of
any failure of property to bring the
amount of taxes assessed against it,
unless 1t can be shown that the city
had no power to make such assess
ment; that one line of decisions holds
that a general judgment cannot be
rendered against a city where it fails
to discharge its duty Of making or
collecting assessments, If it has no
means of re-imbursing itself, on the
ground that al the taxpayers should
not be taxed for the failure of the
city authorities to do their duty
when the contractor has remedy by
mandamus; but the weight of author
ity is that the city is liable, if 1t fails
of its duty to issue the special tax
bills.
In conclusion then Mr.. Aull gave it
as his opinion that sin the event the
city declines to issue the special tax
bills, the contractor has the right to
sne the city, and, II he proves cam-
pliance with his contract to receiver a
general judgment against the city;
but, ''should the city show non COM
pliance by the contractor, it could
defeat the action unless the work aud
material be considered accepted by
the city by some action OF the
city in connection therewith;" and
that .in the event Of the city as
sumeS the bur.en If showing non
compliance and declines to issue thc
special tax bills, the liens on he in
diyidual properties are lost F"
Judge William Young then address
ed the council taking issue with Mr
Aull upon the liability Of the CITY
He said that the Trenton case cite
by Mr.. Aull and all the MiSsouI
cases which be had examined dltfere
from the one IN hand 10 that tn
contention was not over specific pei
formance of contract on the part {
plaintiffs but upon the legality OF th
ordinances In other respects. II
argued that so long as the contract
had an appropriate remedy 10 mai
damus proceedings, the court wou
not entertain an action against Il
city or grant a general judgmel
against 1t. He held that If the cou
Gil issued the tax bills and the pro
erty owners refused to pay and 81
tanned their refusal in court on d
ground OF noncompliance, the ci
might then be liable, and the coun
would then be morally, If not legal
estopped from pleading failure
comply with contract, having adm
ted specific performance by the Isl
ance of the tax bills. He said that
matter Of common knowledge t
contractor had not compiled with
contract in any respect but two a
that he believed 1t to be the duty
the council under its oath of Office
refuse to issue the tax bills whetl
the city would be liable or not.
E. M. Taubman was called "
and spoke briefly in similar vein as
the duty of the council in the matt
Councilman Ylnglng asked for
report of the inspector and of
city engineer. He said that he
not believe that the work had b
done according to contract and !
he would vote against the issuanc
the tax bills
Several members Of the couI
n Walk, Schawe, Aull and Vent
spoke briefly and in substance
follows: That the work had b
done under the supervision of the
engineer and the inspector, who
watched the relaying of the stree
accordance with the recommended
OF the experts employed to pass U
the work and whose report had