Barber-Asphalt Paving Co. v. Hezel

DISSENTING OPINION BY JUDGE BIGGS.

The facts in this case and'those in the case of Verdin v. St. Louis, 131 Mo. 26 , are not materially different. Under the decision in the Verdin case the-judgment ought to be affirmed. It is claimed by the appellant that the testimony of Henry R. Kasson and Amos Perkins establishes, without contradiction, that the pavement in question can be maintained for nine years at the annual cost of fifty cents per square, and that this testimony distinguishes the case at bar as to its facts from the Verdin case and brings it within the ruling of the supreme court in the later case of the Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543 . In the Verdin case it was decided that the letting of the work of reconstruction and maintenance in the same contract was in violation of the charter of the city which rendered the contract and the tax bills issued under it void.

In the Ullman case, Judge Barclay, who delivered the opinion of the court, decided that the question of maintenance was not in that case and that this distinguished it from the Verdin case. He states in the opinion that it was not the purpose or intention of the court to overrule, or modify the law as declared in the Verdin case. Hence it can make no difference in the case at bar whether the defendants were or were not substantially prejudiced by the joint letting.

*155 But granting for the argument that the contention of the appellant indicates the true distinction to be drawn between the two decisions referred to, the difficulty is that the statements of Kasson and Perkins were contradicted by the testimony of Fiad and McMath. Besides Kasson and Perkins, by' their own admissions, disqualified themselves from expressing an opinion on the question of maintenance of a pavement in the city of St. Louis. Hence, on the facts as presented by this record, I regard the decision in the Verdin case as the last controlling decision, and as the majority opinion in this case is opposed to that decision, I ask that the case be certified to the supreme court.