City of St. Louis v. Terminal Railroad

VALLIANT, J. — This is an action on a bond in which the plaintiff is seeking to recover $150,000 to he used in the- construction of a bridge designed for a public viaduct over the tracks of defendants along the line of what was Clark avenue extending from Eighteenth to Twentieth street, to restore, to that extent, to the public for use as a highway that much of Clark avenue which was vacated by the city for the use of the defendants under the contract hereinafter considered. In 1891 the defendants had conceived the purpose of building a great structure to he known as the “Union Station” with appropriate appurtenances and facilities. It was to extend from Eighteenth street on the east to Twentieth street on the west, and from Market street on the north to as far south as was necessary. In the execution of this purpose it was desired by the defendants to occupy with their structure the areas contained in certain streets south of and parallel with Market street between Eighteenth and Twentieth, one — 378 — of which was Clark avenue, and, by contract with the defendants, the city by an appropriate ordinance vacated those streets to that extent. In the contract it was stipulated that “should the city of St. Louis at any time provide by ordinance for the building of a bridge over Clark avenue between Eighteenth street and Twentieth street the said Union Depot Company and Terminal Railroad Association shall pay into the city treasury as part payment of the construction of said bridge the sum of one hundred and fifty thousand dollars.” Under that contract the streets were vacated and turned over to defendants to be occupied for their use, the Union Station was built, and the vacated streets are now occupied by defendants and covered with their railroad tracks. In 1897 the city passed an ordinance providing for the construction of the bridge and demanded of defendants the payment of the $150,000 specified, which defendants refused and the city brought this suit. In their answer the defendants admit the enactment of the ordinance vacating the streets and their obligation to pay into the city treasury the sum of $150,000 in part payment of the expense of constructing the bridge when the city should by ordinance provide for its construction, but they deny that the city has lawfully so provided, and they point out many features of the ordinance and the proceedings in relation thereto which they deem defects that render it invalid. The ordinance vacating the streets for the benefit of the defendants is No. 15989 passed in 1891. The Union Station was finished in 1894. In 1897 the city passed the ordinance 18834, which the plaintiff contends'provided for the construction of the bridge. This suit was begun in 1899. Section 7 of the ordinance 15989 under which the bond sued on was executed is as follows: “In consideration of the rights and privileges — 379 — herein granted, said Union Depot Company of St. Louis and said Terminal Railroad Association of St. Louis or their successors or assigns, hereby agree, that should the city of St. Louis at any time provide by ordinance for the building of a bridge over Clark avenue between Eighteenth street and Twentieth street, the said Union Depot Company and Terminal Railway Association shall pay into the city treasury as part payment of the construction of said bridge the sum of one hundred and fifty thousand dollars, and said Union Depot Company and Terminal Railroad Association shall for each bridge hereafter constructed across its railroad tracks between Ninth street and Eighteenth street, pay into the city treasury the sum of fifteen thousand dollars, said payments to be made within thirty days after the construction of said bridge or bridges is commenced. It is further provided, that upon the acceptance of this ordinance, the Union Depot Company and the Terminal' Railroad Association of St. Louis, will file with the City Register its penal bond, in the sum of two hundred thousand dollars, for the faithful compliance of the provisions of this section. Said bond to be approved by the Mayor and Council. The city of St. Louis reserves the right to occupy such space as shall be necessary for said bridge and supports thereunder, and the said companies hereby grant to said city such rights and privileges as may be necessary to construct and operate said bridge or bridges, provided the same shall be so constructed as not to interfere with the operation of trains. Said Union Depot Company and said Terminal Railroad Association of St. Louis also agree to relinquish any right or claim for damages against said city of St. Louis, that may accrue by reason of the erection and construction of said bridge and approaches or change of grades of streets adjacent thereto to any real estate which they may now own or may hereafter acquire.” — 380 — Ordinance 18834 is as follows: “An ordinance authorizing the building of a bridge over Clark avenue, between Eighteenth street and Twentieth street, and providing for the cost thereof. “Be it ordained by the Municipal Assembly of the city of St. Louis, as follows: “Section 1. The Board of Public Improvements is hereby authorized and directed.' to cause a bridge to be built over Clark avenue, between Eighteenth street and Twentieth street, over the tracks of the Union Depot Company of St. Louis and of the Terminal Railroad Association of St. Louis, including approaches along Eighteenth street and Twentieth street, in accordance with plans adopted by said Board of Public Improvements. “Sec. 2. The bridge shall have- a width of not less than fifty-four feet and shall be constructed of steel, and the roadway shall consist of steel sheathing, concrete and a brick pavement. The piers and retaining walls shall be built of Portland 'cement concrete and shall rest on piling wherever required. “Sec. 3. "Whereas, the Union Depot Company of St. Louis and the Terminal Railroad Association of St. Louis, their successors or assigns, are obligated, by the terms of ordinance number fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred ninety-one, to pay into the city treasury as part payment of the construction of the bridge herein authorized the sum of one hundred and fifty thousand dollars; therefore said sum of one hundred and fifty thousand, dollars, when so paid into the city treasury, is hereby appropriated and set apart to: the fund for the construction of Clark avenue bridge. The total cost of the work contemplated by this ordinance, being estimated at one hundred and fifty-one thousand d.olla.rs, the portion thereof to be — 381 — paid by the city of St. Louis, out of municipal revenue, is estimated at one thousand dollars, and said sum of one thousand dollars is hereby appropriated and set apart out of the fund, Street, Bridges and Culverts— new work — to the fund for construction of Clark avenue bridge, to begin the construction of said bridge. “Sec. 4. There is hereby appropriated and set apart out of municipal revenue to fund for Street, Bridges and Culverts — new work — the sum of one thorn sand dollars. “Sec. 5. As soon as the Union Depot Company of St. Louis and Terminal Railroad Association of St. Louis shall pay into the city treasury, as part payment of the construction of said bridge, the sum of one hundred and fifty thousand dollars, as provided for and agreed to, as the consideration for certain rights and privileges granted to the said Union Depot Company, of St. Louis and the Terminal Railroad Association of St. Louis, evidenced by their acceptance of said ordinance number fifteen thousand nine hundred and eighty-nine, approved February twenty-fifth, eighteen hundred and ninety-one, the auditor shall credit said sum to the fund set apart for construction of Clark avenue bridge.” I. One of the main defects of this ordinance according to the defendant’s theory is that it is in violation of section 12 of article 5 of the city charter which is as follows: “Sec. 12. All ordinances that contemplate the payment of any money shall, upon their second reading, be referred to the appropriate committee who shall obtain the indorsement of the comptroller thereon to the effect that sufficient unappropriated means stand to the credit of the fund therein named, to meet the requirements of said ordinance, or it shall not be lawful to recommend its passage, or pass the same. Provid — 382 — ed, that no claim shall he paid without the approval of the auditor.” In connection with that section is to he read the following it being a part of section 28 of article 6: “Every ordinance requiring such work to he done shall contain a specific appropriation from the public revenue and fund, based upon an estimate of cost to he endorsed by the president of the Board of Public Improvements, on said ordinance for the whole of the cost of each street, part of street, or other object respectively.” The criticism is that this ordinance shows that the estimated cost of the bridge was $151,000, yet only $1,000 was appropriated, and that it did not contain the endorsement of the comptroller that sufficient unappropriated means stood to the credit of the fund named to meet the requirements of the ordinance. This ordinance did contain the certificate of the comptroller to cover the appropriation of one thousand dollars hut not of $151,000: The certificate was in these words: “I hereby certify that if section four of this hill becomes a part of the ordinance, sufficient means will stand to the credit of fund for Street, Bridges and Culverts — new work — to cover the within appropriation of one thousand dollars.” Section 6 of article 5 declares: “All taxes collected for municipal purposes, from all sources whatever, shall be designated ‘municipal revenue.’ ” That revenue is the source from which all the special funds are to be supplied, and is apportioned by the Municipal. Assembly to the various funds to meet the requirements of the different departments of the city government, and when appropriation is made for a public work it is made out of the particular fund apportioned for that purpose, hut it all comes in the first place out of the general “municipal revenue.” So in this case — 383 — the comptroller does not say that there is now in the fund for Street, Bridges and Culverts, unappropriated, one thousand dollars, hut, referring to section 4 of the proposed ordinance which appropriates $1,000 out of the general municipal revenue to this special fund, he says if that section is adopted as a part of the ordinance then there will he that much unappropriated money in that fund to meet the demands of that ordinance. In other words, the comptroller says to the Municipal Assembly, If you transfer from the general revenue to this special fund one thousand dollars, as you propose to do, that amount will be in that fund to meet the appropriation you make towards the cost of this bridge. The comptroller knew the condition of the general revenue fund and his certificate is equivalent to saying that if the Municipal Assembly directs a transfer of $1,000 from that fund to this, the money is on hand to meet it. But the main insistence of the defendants on this point is that the comptroller does not certify that the sum of $151,000 is in the special fund to meet the appropriation, and that the ordinance does not appropriate $151,000 to the work, although that is the estimated cost endorsed by the president of the Board of Public Improvements on the hill then pending. The language of section 28 above quoted shows by its context that it refers only to work to he paid for out of the city treasury; the language is: “Every ordinance requiring such work to he done shall contain a specific appropriation,” etc. “Such work” means work of the character mentioned in the preceding section of that article; there is nothing in any clause of that whole article that indicates that it relates to works of which the cost or any part of the cost is to he paid for otherwise than out of the city treasury. But in the case at bar we have a bridge to he built of which the estimated cost is $151,000 and the defend — 384 — ants have agreed, for a very valuable consideration, to pay into the city treasury, to.be used for that purpose only, the sum of $150,000. What act of appropriation was necessary? If the defendants had paid in the money the Municipal Assembly could not have appropriated it to any other purpose. The city of St. Louis ranks in point of credit with the best in the land. When these defendants were making this contract it never occurred to them to ask that the city give security that it would not waste or-misappropriate the money, but they said in effect, Give us these streets and whenever you get ready to build this bridge we will put $150,000 into your treasury to be used by you in the construction of the work. But now when the city calls for the money they answer that you must first appropriate out of your city treasury $151,000, and use that in the construction of the bridge before you can demand the payment by us. The defendants misconstrue the charter provision which they invoke; it was intended to cover appropriations out of the city treasury made to pay for work to be done at the expense of the city. But if formal appropriation of the $150,000 which the defendants are called on to pay were necessary the ordinance complies with that requirement as far it is possible to do so, for it declares that when the defendants pay the money into the city treasury it shall be so appropriated. We hold that the ordinance does not violate the terms of section 12, article V, or of section 28, article VI of the charter. II. Defendants interpret section 7 of ordinance 15989 to mean that the money sued for is not due until the work of construction has begun, and they say that since it appears from the evidence that the only work for which the city has made a contract and the only work begun was the building of two’ concrete piers, — 385 — therefore, in reality,- the work of constructing the bridge has not begun. The argument is that the city cannot let the contract' to do the work until it makes the appropriation of $151,000 and has that fund in hand set apart especially to that purpose, that is, the city must proceed as if it were a work to be done at the expense of the city alone and must become bound for the total expense and take the risk of collecting the amount from the defendants afterwards. We do not doubt but that if the city should build the bridge contemplated in the contract at its own expense, it could’ afterwards recover of defendants the amount claimed, but that would be a recovery for a breach of the contract, and if the defendants paid the money at the end of the lawsuit, or even if they should withhold the money until the bridge was completed and then pay the amount without a suit, they would not have fully complied with their agreement, because their agreement is to pay the money into the city treasury to be used in the construction of the bridge. Defendants misconstrue that part of section 7 of ordinance 15989 calling for payments by defendants after the work of construction has begun; that refers to the other bridges mentioned in that section contemplated to be built crossing defendants tracks between Ninth and Eighteenth streets. The time for the payment of this $150,000 is specified in the language of the contract itself; it is that should the city of St. Louis at any time provide by ordinance for the building of the bridge on Clark avenue, the defendants shall pay, etc.; the time to pay is 'when the necessary ordinance is passed. If it be said that it would be unreasonable to require the defendants to pay into the city treasury the $150,000, and take the risk of the bridge never being built, although it would seem that defendants consid — 386 — ered it quite reasonable to require tbe city to build tbe bridge and take tbe chance of collecting the money from them afterwards, a sufficient answer to that would be that that is a contingency that might have been, but was not, anticipated and guarded against in the contract, and defendants have no right to call for an amendment of the contract at this time. Besides, there is not in this record or in the history of the case, as it appears in the briefs, any reason to think that the parties to this contract dealt with each other on a basis of distrust or suspicion; they dealt with each other on the high plane that the character of each contracting party justified, and there is not in the record anything to justify the charge of bad faith on either side. But even if the city were to attempt to misuse the money after the defendants had paid it in, they would have remedy to prevent or right the wrong; they are not dealing with an irresponsible party. III. The point on which defendants seem chiefly to rely is that according to the plans and specifications referred to in ordinance 18834, the approaches to the bridge are not on Clark avenue, but are on Eighteenth and Twentieth streets. In the opinion filed in Division 1 by our learned Brother Graves, authorities are cited to show that approaches are to be deemed a part of the bridge, and where a party is under obligation to keep the bridge in repair he is liable if he does not keep the approaches in repair. That is sound doctrine. Although for certain purposes the approaches are to be considered as part of the bridge, yet no artificial reasoning can dispel the fact that there is a physical difference between the bridge and the approach. The very words “bridge” and “approach” carry different meanings to the mind. Congress has jurisdiction of the navigable rivers and you cannot build a bridge over one, even though it be — 387 — altogether in one State, until Congress grants authority, hut the jurisdiction of Congress is from hank to bank of the river; if you want authority to build your approaches you must obtain it under the State laws. Congress not long ago granted a corporation the right to build a bridge over the Mississippi at Thebes, but when the company came to the necessity of condemning land for its approaches it did not apply to Congress for leave, but to the courts of this State. [Southern Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1.] Whilst we all say that for some purposes the approach is a part of the bridge, yet it would be mere affectation if we should say that we perceive no difference between the structure that spans the river and that on which we approach its elevation. We here have a contract calling for a bridge over an artificial stream whose east bank is Eighteenth street and whose west bank is Twentieth street, that is the only structure specified in the contract, and the only measure specified is from Eighteenth to Twentieth street. Defendants say that ordinance 18834 is bad because it calls for a bridge on Eighteenth street, Clark avenue and Twentieth street whereas their contract calls for a bridge on Clark avenue only. So much of the structure called for by the ordinance as is contained in the bridge proper is over that portion of Clark avenue that was vacated for the benefit of the defendants, but the approaches are on Eighteenth and Twentieth streets, and defendants, recognizing no distinction between the bridge proper and the approaches, insist that the contract means that the approaches, too, must be on Clark avenue. Defendants are mistaken in point of fact when they say that this bridge is to be built over Clark avenue. Clark avenue is a street several miles in length, but this bridge is to be built over only a very small part of it, to-wit, from Eighteenth to Twentieth street. — 388 — That is the only part of. the street in which defendants had any peculiar proprietary interest, the only part in regard to which they had any right to make a contract with the city, and in point of fact it is the only part referred to in the contract. If we should adhere as closely to the letter of the contract as, on this point, the defendants would have us do, we would have to say that the whole of this bridge, approaches and all, must be built over that part of Clark avenue that lies between Eighteenth and 'Twentieth street. But that could not be done, because the approaches would come so low at each end as to obstruct the passage of trains and deprive the defendants of a large part of their track space, which the contract says must not be done. Therefore, it follows that the approaches cannot' be constructed on that part of Clark avenue lying between the two streets named, which is the only part of Clark avenue specified in the contract and the only part to which the city has relinquished any right. The approaches must necessarily be built outside of that part of Clark avenue over which the contract says the bridge is to be built and the contract does not say where they shall be built. They must necessarily be built in a street or streets not specified. "Whose streets are they and who is to say which of them is to bear this servitude? This choice of location for these approaches is not to be made in the interest of the defendants alone, but in that of the public, and the city is to make the choice. The city has jurisdiction over all its streets; it has surrendered its jurisdiction in that respect only as to the small part of Clark avenue above specified. If, in its scheme to build a bridge over that part of Clark avenue, parts of that street or of other streets must be sacrificed or marred, the city alone has the authority to say which it shall be. We hold that in the construction of this bridge.the — 389 — city has the right, if it so wills, to build the approaches on Eighteenth and Twentieth streets. IV. Defendants also contend that in the present condition of Eighteenth street the city cannot build the approach there because that street is only sixty feet wide while the approach designed is fifty-four feet wide, and there is already a double-track street railroad on the street, therefore the approach would impair or destroy the street for the uses to which it is at present devoted, and would damage the adjacent property, which the city would have no right to do until the damages were ascertained and. paid for. In the consideration of this point we must bear in mind whose property it is we are dealing with and whose rights are being interfered with. This bridge is not being designed for the benefit of the defendants, but for the benefit of the public; the defendants will have no proprietary interest in it, and no interest of any kind different from that of any member of the travelling public or any other owner of abutting property. It is stipulated in the contract that the bridge is to be so constructed as “not to interfere with the operation of trains;” that point being guarded, the only care the city is to observe is the promotion of the interest of the general public. The only interest the defendants have in either of the three streets named, different from that which any citizen has, is in that part of Clark avenue measured from Eighteenth street, on the east to Twentieth- street on the west; as to the rest of that street, and as to the other streets, the dominion of -the city over them is unimpaired, • and the city may devote them to any lawful use it sees fit, without asking leave of the defendants. The streets belong to the city, and the city may use them as it pleases, provided it pleases to use them only as public highways. It is necessary to call these points sharply to our — 390 — minds because tbe challenge is that the city has'no right to use Eighteenth and Twentieth streets as it now purposes to do. The owner of property abutting on a street has the right of ingress and egress over it to and from his property, and in that respect he has an interest in the street that differs from the interest of the general public, and if that right is impaired he may call the city to account for the injury, but that is a question between him and the city, and, even in such case, if the impairment of the use of the street is occasioned by putting it to a servitude to which the city has the light to put it, damages are not always recoverable. [Nagel v. Railroad, 167 Mo. 89.] But in any event the question of the right of the city to use-the street for a lawful purpose that would inflict damage on adjoining property is a question between the owner of the property and the city; a third party has no right to interfere, and as to the street railroads now on the streets, the interference with them is a matter between the city and the street railroad company, it is no concern of these defendants. In the case at bar it does not appear that the location of the approaches, as designed, would damage the defendants’ property or interfere with their use of it, but if it did the defendants by their contract have expressly waived it. It has been held by this court that the city has no right to give a railroad company a license to use a public street in such manner as to practically destroy its service as a public highway. [Lockwood v. Railroad, 122 Mo. 86.] But that is not the condition which we are now to consider. The use that is designed to be made of Eighteenth and Twentieth streets by these approaches is an entirely public use, no’ one can make any use of it that every one cannot make; the approaches when constructed will be in their character as much public highways as the streets were before. — 391 — Whilst the city has no right to convert a public street into a private way, or give any one a right to use it in a manner to exclude anyone else, yet it has the right to change the form and proportions of the street and •devote it to public travel in a manner different from that in which it had before been used. And the city is the judge of what is the best shape in which to put a street in order to promote the public convenience. Of course in making a change the city may be liable for damages caused or threatened adjoining property and its hands may be stayed until that damage is ascertained and paid, but, as already said, that is a matter to be settled with the injured party, it does not concern anyone else and it does not destroy the city’s legal right to make the change. Let us turn now to the facts of this case. Here the city is designing to erect in a sixty-foot street a bridge approach fifty-four feet wide; for a distance of about 170 feet from the point where it begins to rise it is to rest on a solid earthwork enclosed in concrete retaining walls, leaving for that length practically only about six feet wide of the street clear of the structure. If that plan is not changed or if the street is not widened, all travel coming south in vehicles on Eighteenth street must stop there or be diverted over this contemplated bridge or turn east on Market street until it reaches Seventeenth street or west to Twentieth or Twenty-first arid coming north the travel would end there or be diverted east on Clark avenue to Seventeenth street. Unquestionably that would be a serious •change in the plan of the street, but has the city authority to do it, if so, who is to forbid? In 1891 the •city granted to these defendants the right to build their structure over several streets which as effectually obstructed traffic on those streets, or diverted it out of its usual course, as will the obstruction the city now «designs to build affect the travel on this street. Was — 392 — the vacating of those streets for the benefit of the defendants unlawful, did the city have the right to do it? After Walnut street and Clark avenue between Eighteenth and Twentieth were occupied by the defendants, the travel on those vacated streets going either east or west was diverted to Market street, and covered a greater distance, to get back on either Walnut street or Clark avenue, than the traveller would experience by being diverted from his direct course by this proposed obstruction, on Eighteenth street. The authority of the city to do what it did for the benefit of the defendants in 1891 is not now questioned by them and we do not question the authority of the city to do what it now proposes to do for the benefit of the public. We hold, therefore, that if the city concludes to erect the approach fifty-four feet wide in Eighteenth street without widening the street it has the right to do so, subject of course to the payment to adjacent prop- . erty-owners of whatever damages the city may be liable for, but with that these defendants have no concern. But before the defendants can be required to pay the $150',000' now in question they have a right to know, not with absolute certainty as to detail, but with reasonable certainty as to general form, the character of the bridge and the approaches. They have no right to dictate the plans and specifications of the bridge, that is the city’s privilege, but they have a right to know what the city’s plans are. Eighteenth street coming from the south to Clark avenue, and thence on north to or near the alley between Clark avenue and Walnut street, is 120’ feet wide. What is known as the Eighteenth Street Bridge is a viaduct that carries the street travel over the vast sea of railroad tracks located there. The north end of the Eighteenth Street Bridge is at or near Clark avenue. From the alley above named, going north, Eighteenth — 393 — street is only sixty feet wide. So much of the approach in question as is designed to he a solid embankment is in that part of the street that is only sixty feet wide, it rises from a point about 170 feet north of the alley and extends south to a point about on a line with the alley, leaving for that distance only about six feet wide in tbe street. Whilst, as above shown, the city, subject to the conditions mentioned, would have the right to so change the form and course of this street, yet there is sufficient in this record to show that the city when it passed the ordinance 18834 providing for the building of the bridge did not intend to so impair Eighteenth street, therefore the defendants have the right to say that until the city gives further expression of its purpose in this respect they ought not to be required to pay into the city treasury the $150,000' in question. The ground on which we reach this conclusion is as follows : The Union Station was completed in 1894. In 1895 the city passed an ordinance the purpose of which was to condemn property to increase the width of Eighteenth street from sixty to one hundred feet from a point near the alley above named, thence north to Pine street; a distance of three and a half city blocks, and proceedings were pending in court to effect that purpose in 1897 when ordinance 18834 providing for the construction of this bridge was passed. Thus it appears that the construction of the bridge, according to the plans and specifications referred to in that ordinance, was a part of a scheme that included the widening of Eighteenth street. But when the report of the commissioners in that condemnation proceeding came in the city repealed the ordinance authorizing the widening of the street and the proceeding in court was dismissed. The present suit to recover the $150,000' was founded on ordinance 18834 and was begun March 16, 1899; — 394 — the ordinance repealing the ordinance to widen Eighteenth street was passed April 6, 1899: So far as the city has indicated its purpose, speaking by ordinance through its Municipal Assembly, it has never intended to reduce Eighteenth street to the condition that would result if the approach should now be constructed as planned; we do not say that the city could not do so, but we do say that it has not so expressed its purpose by ordinance. We interpret ordinance 18834 as contemplating a street one hundred feet wide. Under the city charter the city cannot take steps to widen Eighteenth street on that side by condemnation until the lapse of ten years from April 6, 1899'. But the widening of Eighteenth street for the purpose of this approach is not so extensive an undertaking as was the former act, that covered a distance of three and a half city blocks, but this would require only a widening of the street for a distance of about a half block. The result of the repeal of the ordinance to widen Eighteenth street is that unless the city intends to so block the way as to divert the travel around that part of the street as above mentioned, it’ must either reduce the width of the approach or widen the street. It can reduce the width of the approach by an amendment of ordinance 18834, or it can acquire sufficient adjoining property to widen the street by agreement with the owner, or by waiting another year begin condemnation proceedings. But until it does one or the other it is to be adjudged as having temporarily abandoned the. plan referred to in ordinance 18834, and until by ordinance it reasserts that plan ' or adopts some other plan it has no right to require the defendants to pay the sum sued for into its treasury. ■ The city may at any time it sees fit to do so, by a new original ordinance or by an amendment to ordinance 18834, “provide . . . for the building of a — 395 — bridge over Clark avenue between Eighteenth and Twentieth streets” (to quote the languáge of section 7 of ordinance 15989), and locate the approaches where it sees fit, and when it has done so it will be entitled to demand of the defendants the payment of the $150,000 therein specified. For the reasons above. stated we hold that ordinance 18834 was a part of a scheme that involved the widening of Eighteenth street and the repeal of the ordinance authorizing the widening of that street rendered ordinance 18834 ineffective for the purpose of building the bridge. We, therefore, hold that for the present and until the city shall have taken action as above indicated it is not entitled to recover the sum sued for. The judgment is affirmed. Gantt, C. J., Burgess and Lamm, JJ., concur; Fox, Graves and Woodson, JJ., concur in the result, for reasons set out in opinion by Graves, J.