185 Mo. 552 | Mo. | 1904
This is an appeal from the circuit court of Jackson county. The suit is an action by petition in the ordinary form to enforce the collection of 'a special taxbill issued by Kansas City against a city lot owned by defendant, in part payment of the contract price, for paving Tenth street from Cherry to Olive street with an asphalt pavement. The petition contains four counts, each of which is grounded upon one of the four installments of the taxbill. The answer embraces first a- general denial and six special defenses as follows:
“1. That the ordinance and contract providing for the work, required the work to be completed within sixty days after the contract became binding; that while the contract was approved and became binding on the 2nd day of November, 1892, the work was not completed until May, 1903, by reason whereof the tax-bill is. void.
“2. That the terms of the contract required the street to be guaranteed to remain in a state of perfect repair for a period of five years after completion; that
“3. That the Kansas City charter requirement for apportioning and charging the cost of such work against abutting lands according to their frontage upon the improvements is unconstitutional and void.
“4. That the amount of pavement laid in front of other property upon the street paved was greater than in front of the defendant’s property, while the cost of the whole work was levied against abutting lands according to frontage.
‘ ‘ 5. That the city engineer did not personally compute and apportion the cost of the work as required by section 6 and article 9 of the charter of Kansas City.
‘ ‘ 6. That the contract for the work did not contain a clause providing that eight hours should constitute a day’s work for all workmen employed in its execution as provided by the general ordinances of Kansas City.”
Plaintiff’s reply admitted that the contract for the work in question was approved and became binding on November 2, 1892. It charged that the specifications for the work embraced in the contract between the city and the paving company in evidence, were, by reference, made a part of the ordinance which authorized the work, viz., ordinance No. 4572, entitled, “An Ordinance to pave Tenth Street from Cherry Street to Olive Street; ’ ’ that the contract reserved to the city engineer the right to suspend the doing of any work thereunder at any time for good cause, and that the action of the city engineer in suspending the doing of the work thereunder, and his decision as to the existence of cause or reason for such suspension, should be conclusive as to the existence of such cause or reason in any controversy or litigation between the parties thereto, or others claiming under them; that for the proper execu
It was further averred in the reply that no one of defendants, or any of them, or the owners of any real estate charged with the payment of the taxbills in question had within sixty days from the date of the issuance of said taxbills filed with the board of public works of said city a written statement of each or all or any of the objections or facts stated in said answer, or any statement of any objections which they, or any of them, may have had to the validity of said taxbills, the doing of the work, the furnishing of the materials charged for, the sufficiency of the work or materials used, or any mistake or error in the amount thereof, as- required by section 23 of article 9 of the charter of Kansas City.
The evidence shows that the work was done under on ordinance, approved September 21, 1892, and numbered 4572, and entitled, “An ordinance to pave Tenth street from Cherry street to Olive street.” The first
Sections three and four are as follows :•
“Section 3. The work shall he completed within sixty days from the time a contract therefor hinds and takes effect and shall he paid for in special taxbills against and upon the lands that may he charged with the cost thereof, according'to’law. Which work the Common Council deems it necessary to have done. And the Common Council finds and declares that the resolution declaring the work and improvement herein mentioned to be necessary, stating the kind of paving material proposed to he used, as provided by section 2, of article 9, of the charter of said city, ba.s been published as therein required, and that the resident owners of said city who own a majority in front feet of all the lands belonging to such residents fronting on said part of the street aforesaid, to he improved, have not filed with the city clerk a remonstrance against the doing of such work, or a petition for the’ making of such improvement with a different kind of material or in a different manner from that specified in such reso-. lution. And the passage of this ordinance and the doing of said work shall not render Kansas City liable to pay for such work, or any part thereof, otherwise than by the issue of special taxbills.
“Section 4. The total cost of the work herein authorized shall not exceed the sum of $2.50 per square yard, and said work shall be executed with a guarantee to maintain and keep the same in a state of perfect re
The board of public works recommended that the ordinance pass and endorsed their recommendation on the ordinance as required by the charter. '
In pursuance of this ordinance a contract was entered into on October 6, 1892, between the Barber Asphalt Company as principal, with R. "W. Hocker, W. E. Hall and R. Callaway as sureties, on the one part, and Kansas City as party of the second part.
The contract contained a recital that the plaintiff was the lowest and best bidder for making said improvements under the provisions of ordinance No. 4572, approved September 21, 1892. The stipulation as to time is as follows:
“Time. — Work to be commenced within ten days from the time the contract binds and takes effect and all the work completed to the satisfaction and acceptance of the city engineer within sixty days after the date of this contract. .Working days to include all days excepting only Sundays and legal holidays.
“Penalty. — In case the contractor shall fail to complete all the work herein contemplated in accordance with the terms of these specifications within sixty days as aforesaid, the city engineer shall deduct from .the aggregate amount due according to the conditions of this contract an amount equal to tén dollars per day for each and every working day after sixty days that the work is' not completed.
“Detention. — No allowance will be made for additional time for completion of this contract unless the contractor shall be delayed or restrained from prosecuting the work or any and every part thereof in pursuance of a written order from the city engineer and then only for the number of days stated in such order.
The testimony shows without contradiction that the work was not begun until the 10th of April, 1893, and was not completed until May 18, 1893. Other facts will be noted in the course of the opinion. ■. ;
I. The defense that so much of the contract as required the plaintiff to guarantee the pavement to remain in a perfect state of repair for a period of five years after completion was void because the charter does not permit the charging of abutting property for repairs, has been settled by the decisions of this court adversely to defendant’s contention, and we must decline to further consider that question. [Barber Asphalt Co. v. Ullman, 137 Mo. 543; Seaboard Nat. Bank v. Woesten, 147 Mo. 467; Barber Asphalt Co. v. Hezel, 155 Mo. 391; Barber Asphalt Co. v. French, 158 Mo. 534.]
II. The same must be said as to the charter provision of Kansas City for apportioning and charging the cost of such work against abutting lands according to the front-foot rule. That provision was carefully considered and held to be constitutional in Barber Asphalt Co. v. French, 158 Mo. 534, and reaffirmed by the
III. The special defense, that the amount of pavement laid in front of other property upon the street paved was greater'than in front of the defendant’s property, while the cost of the whole work whs levied against the abutting lands according to frontage; that a street railway occupied the street from Cherry street to Brooklyn avenue, and that from Brooklyn avenue to Olive there was no street railway; that plaintiff was only required to and did only pave Tenth street from the curb on each side of said street to within 18 inches of said street car track from-Cherry to Olive street, and the street car company paved from 18 inches of its track on one side to 18 inches beyond its track on the other side thereof, and that said part of the street was not paved by plaintiff, and that plaintiff paved the whole of said street from Brooklyn avenue to Olive street, and op that part of the street on which defendant’s property was situated only paved up to within 18 inches of the car tracks on either side, by reason whereof plaintiff was only required to and did pave only half as much of said street in front of defendant’s property as it did on the portions where there were no streét car tracks,"and yet defendant was charged in proportion to the whole cost of paving said street that defendant’s frontage bore to the entire frontage, and by reason of this inequality the taxbill was void, cannot be sustained. It is at once apparent that this'is the same argument only in a different form that has often been made against the constitutionality of the front-foot rule, but which has as often been rejected. The inequity here relied on is no greater than that which results from the application of the front-foot rule to lots of unequal depth and less area.
The contract was for the whole improvement and the assessment according to the frontage of the lots-abutting on the entire improvement in proportion to
In our opinion this paragraph of the answer is no defense to the action.
IY. As to the defense predicated on the failure of the city engineer to make and sign the apportionment, no instruction was asked by either party, and of course none was refused; consequently the point is not before us for review, though both parties - have briefed the proposition elaborately.
Y. We come now to the alleged errors for which a reversal is sought. The circuit court found as a fact that “none of the defendants, nor any owner of the land described in the petition, did, within sixty days after the date of the issue of the taxbill sued on, file with the Board of Public Works of Kansas City a statement of objections which he or they had to the validity of the taxbill sued on, the doing of the work, the furnishing of the materials charged for, the sufficiency of the work or materials therein used, or any mistake or error in the amount thereof.”
Because the court so found the plaintiff insists the court erred in admitting, any testimony to establish
This proposition was urged on ns in Barber Asphalt Co. v. Ridge, 169 Mo. 376, and we then held that the provision of the charter of Kansas City (sec. 23, art. 9) was in conflict with the Constitution and laws of this State which guarantee “that no person shall be deprived of life, liberty or property without due process of law. ”
We have been urged to reconsider our ruling in that case and to hold said provision of the charter a valid one. We have carefully considered the argument and authorities pressed on behalf of the plaintiff, but without repeating what was said in Ridge’s case we see no reason for departing from the views then expressed, and conclusions reached in that case. We are still of opinion that it is in conflict with the fundamental principles of our State Constitution and out of harmony with our whole judicial system. [Richter v. Merrill, 84 Mo. App. 150; Winfrey v. Linger, 89 Mo. App. 161.] The condition of the docket and the time at our disposal will not admit of a critical review of the numerous cases cited by the appellant. It must suffice to say that we have examined them, but have not been shaken in our views as expressed in Barber Asphalt Co. v. Ridge, 169. Mo. 376, and the cases approved therein.
YI. We come now to the assignment of error, that the circuit court erred in giving its 7th, 9th and 10th declarations of law. The said declarations are as follows :
“7. The court declares the law to be that under .the pleadings and evidence in this case, in determining the sixty days within which the work should, be completed, no allowance should be made.on account of weather or temperature of the atmosphere, and that the taxbill is void if the work was not completed
‘ ‘ 9. The court declares the law to be that if the work for which the taxbill in question was issued was not completed within sixty days from when this contract went into effect, then the judgment should be for defendants and that all orders by the city engineer stopping or extending the time for doing the work were of no effect' and void.
“10. The court declares the law to be that there is no evidence in this case which is competent for the purpose of showing any extension of time for commencing or completing the work beyond that provided in the ordinance; or which is competent for the purpose of showing any good or legal excuse for not commencing or completing the work within the time provided in the ordinance.”
These declarations of law are all predicated on the view that the ordinance under which the taxbill in suit was issued, must control, and as the ordinance expressly provides that “the work shall be completed in sixty days from the time a contract therefor binds and takes effect,” and the contract itself provides the same time within which the work must be completed, and further provides that ‘ ‘ in case the contractor shall fail to complete all the work herein contemplated in accordance with the terms of these specifications within sixty days, as aforesaid, the city engineer shall deduct from the aggregate due on the contract an amount equal to $10 a day for-each and every working day after sixty days that the work is not completed,” the time of commencing and completion of the work were of the essence of the contract.
There was also a provision in the specifications that “no concrete shall be laid at all when the tern
The plaintiff offered and read in evidence the following endorsement on the contract:
“City Engineer’s Office,
4 4 Kansas City, Dec. 27, 1892.
“In accordance with the terms of the within contract, I hereby suspend the doing of the work herein provided until the advent, of favorable weather in the spring of 1893, the work to-be completed in a reasonable time thereafter.
“John Donnelly,
44 City Engineer. ’ ’
■ By reference to the statement of facts in Neill v. Gates, 152 Mo. 585, it will be observed that the ordinance and contract construed in that case is in all material respects identical with the ordinance and contract in this case.
In that case, as in this, it was earnestly contended that notwithstanding the ordinance prescribed the time within which the work must be done, inasmuch as the contract entered into by the engineer and con-tractor provided that if the contract was not completed within the time prescribed therein and by the ordinance, an amount equal to ten dollars a day for each and every day thereafter until completion should be deducted as liquidated damages, this 'provision must control and not that which was fixed by the ordinance, nor that which made time the essence of the contract. Answering this contention this court held that the ordinance must and did control, and that the failure to complete the work within the time prescribed by the ordinance rendered the taxbills void.1 A similar conclusion had been reached by the Kansas City Court of Appeals in McQuiddy v. Brannock, 70 Mo. App. 535; Rose v. Trestrail, 62 Mo. App. 352; and New England
But it is urged that a different conclusion was reached by this court in Heman v. Gilliam, 171 Mo. 258, and that Neill v. Gates, and the decisions of the Kansas City Court of Appeals on this point, are not in harmony with this latest decision of this court on that question. In Heman v. Gilliam, supra, there is a clear and admirable review of all the cases above quoted on this point by Judge Brace, and he points' out that in that case the ordinance under which, the work was done for which the taxbill was issued, “did not require the work to be completed within any specified time. The ordinance is silent on the subject, and says nothing as to when the work shall be commenced or completed.” Our learned brother in that cáse clearly distinguishes that case from Neill v. Gates, Rose v. Trestrai1, McQuiddy v. Brannock, Whittemore v. Sills, 76 Mo. App. 248; Safe Deposit Company v. James, Shoenberg v. Heyer, 91 Mo. App. 389, and Barber Asphalt Co. v. Ridge, in all of which, as in this case, an ordinance required the work should be completed in a specified time. And Springfield to use v. Davis, 80 Mo. App. 574, fell within the reasoning of those cases, because while the ordinance providing for the work did not specify the time within which it must be done, the contract did, and there was a general ordinance of the city which provided such work must be done “within the time agreed upon.” In Heman v. Gilliam there was no such general ordinance shown. Nowhere in Heman v. Gilliam is there the slightest criticism of Neill v. Gates, or the' cases which it followed, and we see no conflict between that case and the decision in Neill v. Gates, and Barber Asphalt Co. v. Ridge, 169 Mo. 376.
We see no reason whatever for departing from the ruling made in the last-mentioned eases. The contract was made with full knowledge of the require
The declarations of law were necessarily given with reference to the facts before .the court. The contractor did not commence the work until April 10,1893. The contract required him to commence within ten days from the time the contract became binding. The confirmation ordinance was passed November 2, 1892. That ordinance did not change or undertake to change the time limit provided for in the original ordinance, No. 4572. The plaintiff took no step to comply with its contract, and even if the weather provision as to the concrete could be held to change the time of completion, no application was made to the engineer for relief until December 27, 1892, six days before the expiration of the time. Moreover, the engineer made no certificate that the work could not be done on account of stress of weather. He merely attempts to suspend the work until favorable weather in the spring. He at no time and by no act attempted to extend the time for commencing the work. The court properly declared that if plaintiff voluntarily determined to postpone or did postpone the doing of the work until the spring of 1893, and at that time no order for stopping
"When the endorsement was made on the contract the plaintiff was already in default for nearly two months. This was in no sense a compliance or attempted substantial compliance with the contract.
The contract expressly , provided that no allowance would be made for additional time for* the completion of the contract, unless the contractor should be delayed or restrained from prosecuting the work in pursuance of a written order from the city engineer and then only for the number of days stated in the order. Obviously this provision did not permit such an utter disregard of the terms of the contract as plaintiff was guilty of in this case for nearly two' months. But we go further; we hold the engineer had no authority to dispense with a compliance with this contract, further than for some pressing, or at least, reasonable cause, and if that intervened he was limited to stating the number of days in his order. His endorsement on the 27th of December, 1892, was no such compliance with the power found in the foregoing provision.
As between the ordinance and the contract the ordinance must govern and any provision in the contract repugnant to the plain requirements of the ordinance must yield to the ordinance. There was no stipulation in the contract exempting plaintiff from a compliance with its terms on account of unfavorable weather. The contract became binding November 2, 1892. Plaintiff knew then that unless it acted promptly and completed the contract within the time limited it would likely encounter cold weather, and yet it entered into the contract and did not commence it at all until April 10, 1893. This was not a compliance with the contract on which plaintiff lays .so much stress. The sixth paragraph of the contract provides, “the work shall be commenced within ten days after this contract binds and
There is no pretense that it was commenced within ten days after November 2, 1892, nor that it was prosecuted regularly and uninterruptedly thereafter, until it was stopped by an order in writing because no order of any ldnd was made_ until December 27, 1892, and the order then made did not comply with the other provision of the contract, requiring the number of days to be specified by the engineer in his order. Moreover, the engineer had no authority to grant .a reasonable time after favorable weather commenced in the spring of 1893. The ordinance expressly negatives any such power in that official.
VII. But it is urged by plaintiff that the confirming ordinance approved the contract and therefore there was no specific time limit, because the contract' contained the qualification that “if the contractor shall fail to complete the work within'the time above specified an amount equal to the sum of ten dollars per day for each and every day thereafter until such completion shall be deducted as liquidated damages for such breach of this contract from the amount of the final estimate;” that this provision in the- contract rendered the time indefinite; that this confirming ordinance being later in time than ordinance No. 4572 pro tanto repealed the"1 specific time limit fixed by said prior ordinance and ' became the ordinance in fact, under which the work was done. . We think this reasoning is much more plausible than sound, when we consider the charter provisions on this subject and the whole scope of legislation by Kansas City in regard to
By section 811 of the Revised Ordinances of said city, it is provided that when any ordinance shall provide for the doing of any- work mentioned in the second section of article 9 of the city charter, the city engineer is required to provide the necessary plans and specifications, “which shall, in-cases where a contract must be let to the lowest and best bidder, prescribe a time within which the work shall be finished.” A notice of the letting of the contract for ten successive days is required.
Section 818 of the Revised Ordinances ■ requires the engineer to notify the successful bidder to enter into a written contract with the city. “Every such contract shall be submitted to the city counselor, or, in his absence or disability, to the first or second assist
Now, applying these charter .provisions and ordinances to the contract in this case, which ordinance controls the rights of these parties? The one which had been passed in strict conformity to the charter of the city after due notice to the property-owners who were to be charged with the payment for the improvement and which specifically fixed, for the information of all parties, especially contractors who were to bid on such work, sixty days as the time within which the work must be completed, and in pursuance of which plaintiff bid- for the work, or the ordinahce which merely approved the contract? Unquestionably the ordinance which was passed in pursuance of the charter provisions adopted for the specific purpose of protecting alike the property-owner and competitive bidders. It was under this ordinance the bids were made, and without pursuing the essential prerequisites prescribed by the charter, no valid charge against the abutting property could be" enforced.
The general ordinance of the city, provided for competitive bidders for the protection of the taxpayer. As said by Judge Smith, in Rose v. Trestrail, 62 Mo. App. 355, “the ability of a city to create a lien on the property of the abutting owner for street improvements made in pursuance of the provisions of its ordinances authorizing the same, is not founded on any pre-existing right, but rests exclusively on a substantial adherence to the method prescribed by such ordinances.” [Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316.] To this we may add, a substantial compliance with the charter of the city itself,
There is not a word in this confirming ordinance that purports to expressly repeal or amend or vary ordinance No. 4572, approved September 21, 1892, On the contrary it approves the contract “to do the work according to ordinance No. 4572,” thus recognizing the controlling effect of said ordinance. When we look into the contract thereby approved it also requires the work to be done in 60 days and makes the time of commencing, the rate of progress of the work and the completion thereof, essential conditions of this contract. To say that the mere addition of the penalty clause for failure to complete the work within 60 days • was intended to,or did repeal and nullify all these clear and positive requirements as to the time within which this work was to be done would be contrary to all recognized rules of construction and interpretation of written documents and statutes or ordinances. There
So much of the contract as provided for the penalty for failure to complete in the time required by the ordinance and contract must be held to have been inserted without authority, but its insertion did not have the effect of destroying the plain, unequivocal command of the ordinance under which the work was authorized and the bids made, nor to prevent the stipulations as to time from having their full' force and effect.
There is no room in ordinance No. 4572, nor in plaintiff’s contract, for the presumption that the work was to be done in a reasonable time, but if there was, the inexcusable delay, the disregard of the plain provisions of the ordinance and the contract all show there was -no reasonable compliance with the requirement of the ordinance or the contract.
The failure to comply with the contract renders the taxbills void and the judgment of the circuit court is affirmed.