170 Mo. App. 503 | Mo. Ct. App. | 1913
Suit on special tax bills for paving with asphalt a business street in Kansas City.
The answer set up nine separate and distinct defenses. Some of these were concluded by the verdict of the jury in plaintiff’s favor. The others, when carefully analyzed, are found to contain really but four matters of defense, some stating the same defense twice in a different way.
On motion of the plaintiff, the court struck out the third, fourth, fifth, sixth and seventh defenses before entering upon the trial. And we are asked to review this action along with other errors claimed.
We shall first take up the fourth and fifth defenses, they being really directed at one and the same
The sixth defense is that a particular brand of asphalt, to-wit, Trinidad Lake asphalt, was required to he used, and, as it was owned and controlled solely hy plaintiff, this excluded competition and rendered nugatory the requirement that the work be let to the lowest bidder. This defense cannot be upheld by this court since, whatever might be our views on that matter, we are required to follow the Supreme Court’s rulings. That court holds that the designation of such-material does not render the tax bill void; [Barber Asphalt Paving Co. v. Field, 188 Mo. 182.] The same doctrine is announced, and reasons therefor given, in Paving Co. v. Hunt, 100 Mo. 22; Verdin v. St. Louis, 131 Mo. 26; and Swift v. St. Louis, 180 Mo. 80. While it is true the decisions in some of these cases last cited were by a divided court, and that tribunal has later manifested a disposition to limit the doctrine, yet we do not think it intended, in the case of Curtice v. Schmidt, 202 Mo. 703, to overturn or abandon it. At any rate we shall continue to fol
The third defense set up in the answer alleged that the ordinance authorizing the work was passed July 30, 1900, and the contract under which the work was done was not let until May 26, 1902; that by reason of the long and unreasonable delay in letting the contract and causing said work to be done, the power to make a contract ceased and the tax bills are, therefore, null and void, of all which plaintiff had notice.
It is held that, where the original ordinance prescribes the time in which the work must be done, the authorities must proceed in the usual course of such matters and within the limits thus prescribed, and they cannot abandon an improvement and then after the lapse of a long period of time resume jurisdiction at the place where it was left off. [Marshall v. Wisdom, 127 Mo. App. 640.] It is also well settled that proceedings had under an ordinance which specifies no time in which the work is to be done are not invalid merely because no time is specified in the ordinance. But it is further held, that where the original ordinance specifies no time, a reasonble time is implied. [Ayers v. Schmohl, 86 Mo. App. 349; Heman v. Gilliam, 171 Mo. 258, l. c. 269, 271.] So that, if the ordinance specifies no time, this does not mean that there is no limit upon the time when the work is to begin or in which it is to be finished. All the authorities hold that the time limits provided in the original ordinance must be observed and the work done within those limits or the tax bills will be void. If, therefore, the original ordinance gives a reasonable time for the work to be done, this reasonable limit must be observed just the same as a specified limit would have to be observed had it been imposed. In the case at bar there was a delay of one year, nine months and twenty-three days before the letting of the contract
But even if the delay in letting the contract under the ordinance be found to be reasonable when the facts are investigated, there appears to have been two contracts let and the work was not done or begun until after the letting of the second contract, and this brings us to the seventh defense which was stricken out. This defense was based upon the following facts: As said before, the ordinance authorizing the work was passed July 30, 1900. On January 9, 1902, nearly sixteen months later, a contract was let which re
As stated before, the original ordinance specified no time, and, therefore, a reasonable time is all that is required thereby. The first contract required the work to be “begun within ten days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter with such force as to secure its full completion within sixty days from
But in the case we are considering the plaintiff did not begin the work or do anything required of it under the old contract nor is there any reason given or shown in the testimony why it did not comply with the obligation imposed upon it by that contract, and if the making of the new contract and the cancellation of the old can be said to be an extension of the time in which plaintiff could complete the work, the city had no power to extend such time unless such extension was made within the reasonable time prescribed by the original ordinance and contract. What is a reasonable time usually depends upon the facts in the case. Sixty days in May might be a reasonable time while the same period in January would not. Especially is this the case where, as here, the contract provides that bad weather, etc., may enlarge the time. So that the question of what was a reasonable time should have been investigated in order that it might be seen whether the extension was legal. But
Defendants also raise the point that there was no legal selection of the materials used. This is based upon the contention that nó ordinance was ever passed' selecting the material, and that, as it is a legislative act, such selection cannot be delegated to the board of public works. But the procedure required by the charter for paving a business street was followed so far as this point is concerned. [Kansas City Charter 1889, art. 9, sec. 2.] The specifications and ordinance set forth the 'four kinds of materials recommended by the board of public works but provided that the property owners should have a certain time in which to select one of the four, and that if they did not make a selection, the board of public works should do so. The ordinance further provided that the work should be done in accordance with the requirements of the specifications and the selection made. The property owners did not avail themselves of their right to select, and thereupon the board of public works made the selection. After this had been done and a contract let, an ordinance was passed confirming it which required the street to be paved with the specific materials theretofore selected and which were afterwards used. This was a sufficient selection. In addition to this, the tax-bills are made prima facie evidence of their validity. [Kansas City Charter, art. 9, sec. 18.] In the absence of proof to the contrary it will be presumed that the selection of materials was properly made.
Defendants also complain of the following instruction as modified and given by the court: “If the jury
This required the jury, before they could return a verdict for defendant, to find not only that the work was not done substantially according to contract but also that the work was not of any value. The jury might have thought that the work was not done substantially according to contract, but that it was of some value and because of this they could not find for defendant. Cértainly the jury would be justified in so thinking, as it is the unmistakable meaning of the instruction. Therefore it should not have been given. The case, however, is reversed and remanded on the two grounds above specified.