Barber Asphalt Paving Co. v. Ullman

137 Mo. 543 | Mo. | 1897

Lead Opinion

Barclay, J.

The action is upon special tax bills issued in regular form for an improvement on Sixth street in the city of St. Joseph. The statement opening the report of this appeal gives a sufficient outline of the ordinance and contract. The defenses to the bills will be severally taken up.

1. The plaintiff offered in evidence the special tax bills sued upon, with proof of the signature of the city engineer who issued them. Such a tax bill is by statute invested with the force of “prima facie evidence of the validity of the bill, of the doing of the work,” etc., “and of the liability of the property to the charge stated in the bill.” R. S. 1879, sec. 4784.

It is too well settled to require argument that the courts must give full effect to such provisions of law in regard to the sufficiency of official certificates of this sort as evidence of a valid tax. St. Louis v. Hardy, (1864) 35 Mo. 261; St. Louis v. Armstrong (1866) 38 Mo. 29; Strassheim v. Jerman (1874) 56 Mo. 104.

The tax bill, duly authenticated and read in evidence, placed upon defendant the burden of proving any fact on which he might rely to show its invalidity.

2. Defendant insists that the contract for the work was not properly let, and hence is of no binding force.

The fact that the mayor did not personally pass upon the contract is said to be a fatal blemish on the proceedings. The course followed was in substance this:

A special ordinance directing the improvement was duly enacted by the common council, and then approved by the signature of the mayor, June 27, 1887. (Its terms have been mentioned in the statement of the ease.) The city engineer was thereby directed to advertise for ten days for bids, and all conflicting ordinances were repealed. He did advertise and no question is raised upon the terms of the advertisement. On receiving the bid of plaintiff, according to the call of the advertisement, a formal contract under seal was made, in due course, between the Asphalt company, as principal (and party of the first part) and the city of St. Joseph (by the city engineer) as the second party. That contract was also signed by several other parties as securities for its due performance by the party of the first part. The act of the engineer in executing the contract was, however, merely tentative, inasmuch as one term of the agreement declared that it was subject to the approval of the city council.

The securities and bond were approved by the city comptroller, who attested that approval by his signature. The city counselor did the same; and a like approval later by the common council is shown by the official certificate and attestation to that effect by the city clerk.

The contract as offered in evidence by defendant shows these facts.

The defendant’s contention is founded on the language of an ordinance in force when the general charter for cities of the second class was accepted by St. Joseph. That ordinance provided that, “All contracts shall be awarded by the mayor and city council to the lowest reliable and responsible bidder,” etc. By section 4816 '(R. S. 1879) of the general charter of St. Joseph, all ordinances, etc., “in force, and not inconsistent with” the new charter were left operative until altered, modified or repealed by the common council.

By the old special charter (art. 2, sec. 4) the mayor was the presiding officer of the council, but under the general charter governing the facts under review, one of the council is chosen to preside. R. S. 1879, sec. 4630, now part of section 1242 of 1889.

The old ordinance above quoted was intended to express the same idea contained in section 4815 (R. S. 1879; sec. 1436 of 1889) touching the letting of contracts to the lowest bidder.

The general charter (sec. 4673, R. S. 1879; sec. 1294 of 1889) makes it the duty of the comptroller “in conjunction with the city engineer, to open and inspect all bids of contractors for public works, and to approve and safely keep all bonds given by contractors for the faithful performance of public contracts.”

So far as ' the old ordinance may have contemplated personal action by the mayor upon contracts made for the city, it was subject to repeal by a later ordinance. Hence the contract in question here (if entered into in the mode prescribed by the ordinance for this particular work) is not subject to impeachment because of any want of conformity to the old ordinance. It is therefore not necessary to consider whether the new charter of itself lays down a line of procedure (in regard to letting of such contracts) at variance with the old ordinance. There is no room for doubt that the contract was duly entered into on the part of the ■city in a mode contemplated by the ordinance authorizing this work on Sixth street, as sanctioned by the subsequent action of the common council.

3. The tax bills are also challenged because, it is said, they include a charge for subsequent repairing of the street, under the name of “maintenance.” Defendant argues that that burden should properly be borne by the city of St. Joseph (by reason of the terms of its charter) and that it can not, by any device,.be imposed upon the adjacent property. There are some conflicting contentions as to the effect of certain provisions in the charter of that city in regard to its power to assess the cost of repairing highways as a special tax upon the adjoining realty. R. S. 1879, secs. 4781, 4788, same as secs. 1404, 1426 of R. S. 1889. The sections just cited plaintiff claims confer such a power. But then section 4786 (of 1879, same as section 1424 of the revision of 1889) opens with the statement that ‘ ‘the cost of repairing and keeping in repair the paving and macadamizing of all streets and avenues shall be paid out of the general revenue of the city.”

It will not be essential at this time to solve any difficulty of construction that may arise from the sections mentioned. For the present (and for ■ argument only) the proposition asserted by defendant will be assumed, namely: that the cost of repairs on the finished street is properly chargeable to the city, and not as a special tax lien upon the adjoining property.

We here touch the most interesting feature of the present appeal.

• Do the provisions of plaintiff’s contract with the city, in regard to the maintenance of the street, place on the adjoining property any charge for the repairs of the street after its completion?

• There are two branches to this inquiry, one of a technical, and the other of a substantial nature.

a. The defendant by his answer set up (among other defenses) the following:

“That in pursuance of its said contract to repair said pavement for and during a period of five years, plaintiff has at all times since the date of said contract kept said pavement in repair, and in repairing said pavement during said times has found it necessary to, and it did, take up and replace nearly all of said pave-

ment, and that the cost of so repairing, taking up and replacing said pavement, during the said time, and the cost of repairing, taking up and replacing'said pavement for the remainder of said five years, was and is and will be, many thousands of dollars,. and that plaintiff in making its said bid and contract, contemplated and took into consideration, and included in its said bid and contract, the estimated cost of making said repairs, taking up and re-placing said pavement for said time, and same is included in each of the tax bills herein sued upon.”

That part of the answer was stricken out by the court on motion of plaintiff. The bill of exceptions in the cause was allowed and filed as of the August term, 1893 (in fact, later than the August term, an extension of time having been obtained, under section 2168, at that term when the appeal was allowed). But the ruling, striking out the defense above quoted, took place at a term of court prior to the August term, 1893, and no exception to that ruling was preserved by any bill at that prior term; nor was the time to except to that ruling ever extended beyond the term when it was made.. The correctness of the ruling is, therefore, not properly before the supreme court for revision on this appeal.

An exception to a ruling striking out a pleading (or part thereof) must be taken by a bill filed at the term when such ruling becomes final, or within time given so as to connect the exception with that term. R. S. 1889, sec. 2168. It is not sufficient to bring such a matter of mere exception into the final bill, filed at a subsequent term, when no bill preserving the exception was obtained at the proper time during the course of the proceedings. Keen v. Schnedler (1887) 92 Mo. 516 (2 S. W. Rep. 312).

b. What then is the effect of the contract as to the subject of repairs? The ordinance merely provides for the paving of Sixth street with asphaltum and for the proper setting of curbing on that street, according to certain specifications in the engineer’s office. The ordinance makes no*mention of repairs.

It was held in the Verdin case, 131 Mo. 26 (33 S. W. Rep. 480) that, where the city is bound to repair, it can not, by forcing a bargain on the contractor for a cheap rate of repairing (as a condition for letting a contract for reconstruction of a street) impose on the adjacent property, as a special tax for reconstruction, an uncertain and unascertainable portion of the expense properly chargeable to the city for the repairs. In that case the petition for injunction made a showing which was considered to substantially charge such a scheme. A majority of the court in bane held that scheme unlawful under the charter of St. Louis.

But at bar we have a case in which the record makes a different showing. A defense asserting a similar state of facts to that alleged by plaintiffs in theVerdin case has been stricken out and is not now available to the defendant. The contract itself, however, is before the court. But it reveals quite another sort of arrangement from that condemned in the Verdin case. The price to be paid for maintenance or repairs, as itemized in the contract, refers very plainly to maintenance, during the second period of five years. That is evident from the stipulation touching the “manner of payment for maintenance” toward the close of the instrument, as well as from other passages quoted in the statement of the contract. The property adjacent is not charged for any part of the repairs during the first term of five years, and still less during the second term. The agreements of the plaintiff, the Asphalt company, in regard to maintaining the street in repair for five years, free of cost to the city, apply only to “the pavement constructed under these specifications.” If other repairs become necessary on account of the construction of sewers, laying of pipes, or other disturbances of the asphaltum street surface (under permits of the city) those repairs are to be paid for by the city (not by the adjacent property owners) at a price not to exceed the original cost per yard, according to the contract.

The validity of those provisions as to the city is a topic regarding which we shall more fully state our position in the next paragraph of this opinion. It is enough at the moment to say that the stipulations as to such repairs on account of the city (at prices to be paid in future) do not appear to impose on the property owners any charge for such repairs as part of the primary cost of the asphaltum street.

The “guarantee” of the . pavement for five years, as laid by the plaintiff, involves no extra charge against the adjoining property, further than would be justly payable for a lasting pavement. The term for keeping the agreed work in repair, free of cost, is not longer than the reasonable period such a work should last, if properly done at the outset. It certainly is proper for the city to require of the contractor for such improvements a sound and durable piece of finished work. The agreement to maintain the work free of cost for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.

The learned dissenting members of the court consider that the contract imposes upon the taxable property some part of the after repairs, payable properly by the city.. They have quoted some parts of the contract to support their views. The passages from which the quotations are taken appear at large in the statement accompanying this opinion, as well as considerable context which also should not be lost sight of.

The paramount issue is upon the construction of the contract, taken as a whole. Does it mean to provide that the paving company shall keep the entire street in repair for* five years, or does it mean to provide that the company shall simply maintain, in good order, for that period, the street as plaintiff agreed it should be made? We think the latter its true meaning. The city had the right to determine whether the thoroughfare should be improved with macadam, gravel, asphaltum, granite or other material. It had the right to put down a pavement good enough to last at least five years, and to charge its cost against the adjacent property. Now what difference is there, in principle, between a municipal agreement that merely calls for the construction of such a substantial street, and a municipal agreement which adds to such a call terms requiring the contractor to make good (during five years) his contract to furnish the sort of pavement he proposes to supply?

The proper laying of pavements of the sort here in view is a matter of skill which few but experts can fathom. An agreement to keep such a pavement good for five years (as contracted to be laid) seems to us a far more practical and efficient way of clinching the agreement for a sound article than any amount of stipulations to govern the mere construction of tbe street at the outset. Such a “guarantee” (as it is aptly termed in the contract) is a prudent and business-like mode of securing what the city has a right to demand in respect of the quality of work desired.- Such an agreement does not of itself necessarily imply any unlawful increase of the first cost of a well constructed street. Such a street is what the contract before us is designed to secure. The guaranty is entirely different in principle from an agreement to keep the whole street in repair for .a term of years, irrespective of the causes which might necessitate repairs. That distinction is plainly pointed out in the Boyd case (1896) 92 Wis. 456 (3 A. & E. Corp. Cas. N. S., 652, 66 N. W. Rep. 603) and in Brown v. Jenks (1893) 98 Calif. 10 (32 Pac. Rep. 701).

In Fehler v. Gosnell (1896) Ky. (35 S. W. Rep. 1125) the remarks in the Broion case on that distinction are approved.

In Schenectady v. Union College (1892) 66 Hun,” 179, an agreement similar to that here in question was sustained, as was another in Cole v. People (1896) 161 Ill. 16 (43 N. E. Rep. 607).

There is nothing in this contract, or elsewhere in the case, that makes it clear to us that any part of the cost of repairing the finished street has been put upon the taxable property by reason of the mode followed by the city in having this work done.

It is our duty to assume (in the absence of a showing to the contrary) that the municipal authorities have proceeded in accordance with law, and not in violation thereof. Action by city officials in regard to the imposition of special taxes for a street improvement comes within the protection of the general maxim that public officers are presumed to have rightly acted until the contrary is clearly made to appear.

It is a grave error to suppose that the law looks with any disfavor upon these special tax bills for street improvements. They are to be treated with the same fairness and justice that should be accorded all public acts of the civil authority, when taken in conformity to law. And a want of conformity to law is not to be presumed as to such governmental action any more than to other proceedings of public» functionaries. Farrar v. St. Louis (1883), 80 Mo. 393.

4. By the foregoing rulings, however, we intend no intimation of opinion as to the effect of the terms of the contract touching maintenance for the second period of five years. That is the period to which the item of cost for “maintenance per annum” (as given in the schedule of prices) obviously refers. Whether further municipal legislation will be essential as a basis for any draft on the municipal revenue on that account .is not a question of present concern. There is no charge of any kind in the present bill on that account, nor was it shown (or attempted to be shown), at the trial, that the agreement by the Asphalt Company to maintain the pavement at the city’s cost, for the second period of five years, had any bearing on the original cost of the improvement or that it added, in any way, to the expense properly authorized by the charter to be imposed as a special tax on the neighboring property.

The stipulations in regard to the original construction (and maintenance free of charge for the first term of five years) are readily severable from the agreements in regard to maintenance for the second term of five years. Neosho Water Co. v. Neosho (1896), 136 Mo. 498 (38 S. W. Rep. 89). The former stipulations may be valid and enforceable by the contractor, even if the latter are not, for want of proper preliminary municipal action to support them. As to the latter we give no opinion. The validity of those agreements we regard as irrelevant to the issues of this appeal. As the case at bar now stands, the latter agreements form no barrier to the collection of the special taxes in suit, imposed for the first cost of the asphaltum street. Neenan v. Smith (1875), 60 Mo. 292. Those agreements are a matter between the city and the contractor, and are not so connected with the stipulations for the work represented by the special tax bills as to impair the validity of the latter. Nothing properly before the court at present discloses that any of the agreements for maintenance of the improved street had a tendency to increase in anywise the special taxes levied on the abutting real property for the original work.

5. Nor is the ordinance deficient in omitting to properly mention the materials for the proposed work. "Paved with Trinidad sheet asphaltum, according to specifications on file in the office of the city engineer,” is a sufficiently definite description for the purposes of an ordinance, under the precedents in Missouri on that point. Sheehan v. Gleeson (1870) 46 Mo. 100; Moran v. Lindell (1873) 52 Mo. 229; Carlin v. Cavender (1874) 56 Mo. 286.

6. It is claimed by defendant that the whole job was not done in a good and substantial manner, as agreed. The finding of the jury indicates that the work was executed in substantial compliance with the contract. Furthermore, the defense that the contract was not performed by the contractor in a workman-like manner, could only be made (according to the express terms of the charter) by way of reduction in the amount of the bill, and then only upon condition of a tender of the sum justly due for the work as actually done. It is not pretended that any such tender was shown in the case at bar, and it is not asserted that there was a total failure to perform. R. S. 1879, sec. 4784. -

7. The penalty of 15 per cent per annum, by way of interest for delay, is expressly authorized by the charter, and there was no error in permitting a recovery therefor. R. S'. 1879, sec. 4784.

8. A minor point is raised upon the exclusion of a deposition of a witness, Mr. Campbell, on behalf of defendant. He resided in Buchanan county, and the trial was had in Platte county. But he was shown to be present in the court room when the deposition was tendered in evidence. No fact was disclosed which might have made his deposition admissible on exceptional grounds; for instance, for purposes of impeachment, or as an admission, or otherwise. There was no error in excluding the deposition in such circumstances Schmitz v. Railroad (1893) 119 Mo. 256 (24 S. W. Rep. 472); Benjamin v. R. R. (1896) 133 Mo. 274 (34 S. W. Rep. 590).

9. The specifications which were to be found in the engineer’s office, when the ordinance was passed, were plans and profiles of the work required on Sixth street, with blank forms which gave the particulars demanded by the engineer (in the doing of the class of work here in question) in the same terms as those which appear in the contract (finally made with the city by the plaintiff) under the head of “Specifications.” The latter contained elaborate directions for the work from beginning to end, and thus made the intent of the ordinance definite and clear. The specifications defined what was meant by the ordinance as to the subject of curbing, as well as concerning all other branches of the projected improvement. Curbing was, nevertheless, mentioned in a general way (as an item of the improvement) in the fifth section of the ordinance. The reference in the ordinance to the specifications in the office of the engineer was quite sufficient as a description of such work. It was not necessary for all the details of the working plan to be developed in the ordinance itself. Becker v. Washington (1888) 94 Mo. 375 (7 S. W. Rep. 291).

10. We find none of the objections to the circuit judgment tenable. The effect of the special tax bills as prima facie evidence has not been overcome.

The judgment should be affirmed.

It is so ordered,

Judges Gantt and Burgess dissenting. Chief Justice Brace and Judges Macearlane, Sherwood, and Robinson concur in the foregoing opinion.

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Dissenting Opinion

Gantt, J.

(dissenting.) — We most respectfully dissent from the opinion of our learned brother Barclay.

The substantial point for adjudication is the validity of the tax bills sued upon. If they were issued for work directed by the city council by its ordinance and the ordinance and contract conform to the charter, then the judgment should be affirmed; if not, in our opinion, it should be reversed.

St. Joseph in 1887 was a city of the second class as defined by our statutes. The statutes governing such cities constituted its charter. The power of the authorites of the city to pave and repair its streets is to be found alone in the said charter as to how the cost of repairing the streets of said city is to be paid.

Section 4786, R. S. 1879, provides: “The cost of repairing and keeping in repair the paving and macadamizing of all streets and avenues shall be paid out of the general revenue of the city.”

It seems to us language could scarcely be inore unequivocal than is to be found in these words. The mind of the lawmaker when drawing that section was directed to the sole question of providing for the ways and means of meeting the necessary expenses of repairing streets and avenues. Already in sections 4781, 4782, 4788, and 4784, with the utmost particularity, the legislature had authorized the common council to cause to be graded, constructed, reconstructed, paved or otherwise improved and repaired, all streets, sidewalks, alleys and public highways within said city and charged the abutting property on both sides of such street with the cost of such grading, constructing and reconstructing and paving and had provided for an assessment of such abutting property and the apportioning of the costs of such improvement and the issuing of tax bills therefor. But such tax bills were to be issued solely for the work done in grading, paving, constructing, reconstructing or macadamizing said street and by a special provision in section 4784 such tax bill was only prima facie evidence of the doing of the ivork, and of the furnishing of the materials charged for and of the liability of the property to the charge stated in the said bill and the right was reserved to the abutting owner to plead “in reduction of the bill any mistake or error in the amount thereof, or that' the ivork therein mentioned was not done in a good and workmanlike manner.” Section 4788 was not, in our opinion, designed to confer any power either to construct or repair but simply marked out the mode of procedure when either grading, constructing or reconstructing, or repairing was proposed. It provided what should be a sufficient petition for such improvements when a petition by other provisions of the charter was required; for its publication and for a hearing before the council of all objections to such improvement.

That section then further provides that if in the ordinance which was essential to authorize such improvement, the common council should recite a finding by them that the work had been petitioned for and that it had been published according to law, such finding should be conclusive for all purposes. It further provided for joining tax bills in one suit and for separate judgments on each and for tax bills on corner lots for sidewalks, curbing and guttering. To our minds this section in no manner conflicted with the plain ‘mandate in section 4786 requiring that “the cost of repairing and keeping in repair the paving and macadamizing of the streets should be paid' out of the general revenue of the city.” It was not a new grant of power. It simply dealt with the matter of procedure for enforcing the previous sections of the charter. Proceeding, as we do, to consider the tax bills in suit, upon the assumption that the charter places the burden and the whole burden of “repairing and keeping in repair” the streets upon “the general revenue of the city,” and if it does not, still the ordinance in this case nowhere imposes that burden upon the abutting owners, the decisive inquiry is, did not the contract under which the street in question was paved and for which these tax bills were issued put a part,, at least, of the burden upon said abutting lot owners'?

The contract recites on its face that the city let to the paving company the work of paving Sixth street from the north line of Hall to Atchison streets with Trinidad asphaltum, specifying the constituent elements of the proposed pavement, and said company agreed “ to further maintain (said) paved street for a period of five years without cost to the city.” In another clause, uthe said paving company guarantees the pavement constructed under these specifications for five years, agrees to lieep the same in repair during the period of said guarantee and at the end of said five years to turn said pavement over to the city in good order and condition. Also to propose in his said bid, an agreement to keep said pavement in repair for an additional term of five years and turn the same over to the city at the end of such additional term in good order and condition and it is further agreed that whenever any repairs of the streets are made necessary for the construction of sewers, the laying of pipes, or of telegraph wires or from any disturbance of the pavement by parties acting under permits issued by the city, the contractor shall upon notification from the city engineer immediately make all necessary repairs in conformity with the specifications of this class of work. The cost of all such repairs exclusive of trenching and back filling which shall be done by the parties who hold the permits and in the same manner as now required by existing ordinances shall be paid at a price not to exceed the original cost per yard of the pavement.”

In another clause said Barber Asphalt Paving Company, party of the first part, expressly guarantees the above work of repaving for the full period of five years after its completion and binds itself \ its heirs and assigns for the entire expense of all repairs which may from any imperfection in said work or materials become necessary,” and if the work at any time within five years after its completion in the judgment of the city engineer needed repairs, he should notify said contractor to make them.

Some question is raised as to the pleadings but we take it that we all concur in holding that the ordinance and the contract under which this claim is asserted are both before the court and to entitle plaintiff to recover from the abutting property holder it must appear that there has been a fair and substantial compliance with the conditions precedent whether prescribed by the charter or the ordinance; Keating v. Kansas City, 84 Mo. 415; Cole v. Skrainka, 105 Mo. 303; Verdin v. St. Louis, 131 Mo. 26; that the authority to charge this lien on defendant’s property must be found in the charter and an ordinance passed in pursuance thereof. This, the answer puts in issue. Now it is conceded by our learned brother that the ordinance makes no mention of repairs and we hold that the charter imposes all repairs “upon the general revenue.” If, then, this contract places the burden of repairs in whole or in part on the property of the abutting owner, it conflicts with the charter and has no support in the ordinance. Does it do so? Our learned brother says it does not because “the adjacent property is not charged with any part of the repairs during the first term of five years, and still less during the second term.”

It is this statement which compels our dissent for we hold that when the city authorities stipulated that the Paving Company “should maintain this pavement for a period of five years without cost to the city” it thereby cast upon the abutting owners the cost of that maintenance for five years in the teeth of the charter. It is calling for too much credulity to ask us to believe that any paving company or contractor would assume the burden of maintaining and repairing this pavement for five years without having estimated the cost of so doing and included in his bid the cost of so doing. If so, who pays it? Does not the abutting owner who pays the entire cost, repairs and all, when the city is in terms exempted from that burden?

As said Judge Winslow for the supreme court of Wisconsin in Boyd v. Milwaukee, 3 Am. & Eng. Corp. Cases (N. S.) 652 (March term, 1896): “It will not do to say that these agreements to repair are in effect guaranties of material and workmanship. Such a contention is made here, and an affidavit was introduced showing that the life of such a pavement, if properly laid, was at least ten years, and that it would require no repairs at all for five' years. If the agreements to repair tvere confined to repairs made necessary by defective workmanship or material, the argument would be entitled to serious consideration. But they go further. They cover, in terms, everything that may happen to the pavement, except the cutting through it for the purpose of laying certain pipes. Just how far these agreements might go in case of damage to the pavement from unusual causes, it is not necessary to consider, nor is the question properly here. It is sufficient to say that it is very evident that no one in possession of good business sense will make such a contract without considering and charging for the very extended liability which he assumes of keeping the pavement in repair for five years, and thus the property owner is compelled to pay for that which the law charges upon the ward in general.”

In the Verdin case, 131 Mo. 26, the board required the contractors to propose that “the streets should be maintained in good condition for a term of nine years, beginning one year after completion” and it was held that “the obvious intent of that scheme was to put upon the owner of abutting property a portion of the. repairs and the city would not be allowed to shuffle off on the adjacent property owners such expenses”

Our learned brother says that “the agreement to maintain the work free of cost to the city for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.” (To wit, “a sound and durable piece of finished work.”) “It is different, ’ ’ he says, ‘ ‘in principle from an agreement to keep the whole street in repair for a term of years.”

We are unable to perceive the distinction. Certainly it is as objectionable to agree to keep a defined section of a street in repair as the whole street in so far as it affects the abutting owners and the pavement is the street as used in this contract.

We understand from his opinion that he concedes the great weight of authority to be that if the contract binds the contractor to keep the street in repair regardless of the cause of the defect and does not confine his liability to repair to defects arising out of the imperfection of his materials or inferior workmanship, then it imposes a burden on the abutting owners which the law casts upon the city at large. So we are agreed as to the law.

It becomes then a question of fact. Now this contract is identical in terms with the one condemned in the Boyd case. Here, as in that case, the agreement to repair for five years is not restricted or confined to repairs made necessary by defective workmanship or material furnished by the contractors but it covers all repairs rendered necessary during that time whether caused by inferior workmanship and defective materials used by the paving company or by the wear and tear of the general traffic over the streets. So that if we read the Boyd case aright, there is no such distinction between the contract in that case and the contract before us in this case.

We agree, “that the distinction is plainly pointed out in the Boyd case,” and it is equally plain to us that this contract falls within the category condemned by that case and not within the supposed case of a contract guaranteeing merely the work and materials of the contractor.

In People ex rel. v. Maher, 56 Hun, 81, the common council passed an ordinance requiring the board of contract and apportionment to require the contractor to agree to keep a pavement of gi’anite block in repair for seven years. The charter provided that the repairing of all streets paved with granite blocks should be a charge upon the city. It was held that such a provision in a contract for laying granite block pavement was u/nauthorised and tended to increase the burdens of abutting owners and the contract was set aside as illegal. That contract also we conceive to be identical in principle with the one before us.

Afterwards in Schenectady v. Union College, 66 Hun, 179, People v. Maher, supra, was before the same court for review and speaking of the provision in the Maher case the court said: “If this contract (that is, Schenectady v. Union College) is subject to the same objection it should share the same fate, if the objection was properly raised in the court below.”

“The referee was not asked to find, and did not find, that this provision in the contract increased the expense of the work or enhanced the amount of the assessment. But this question is, I think, fairly here, for adjudication. But I am inclined to concur in the views of the learned referee that this case is substantially different in some of its essential particulars from that of the People v..Maher, supra. In that case there was an express contract to keep in repair for seven years. In this case the clause referred to in the contract had reference solely to the substantial character of the work performed and materials used in the performance of the contract.” So that to us it is obvious that the Schenectady case not only does not overturn the Hall v. Maher case but fully confirms it and merely holds that when the guaranty or contract is limited to the workmanship or materials of the contractor and is not an absolute agreement to repair from whatever cause necessary, it did not violate the charter. The Schenectady case, however, was overruled on another point in 144 N. Y. 241.

In Hall v. Maher it was urged just as here that the agreement was merely a warranty that the pavement would last seven years without repairs and that such a warranty would be a benefit but the court met the suggestion in these words: “But the difficulty arises from the circumstance that the property owners are to pay only for the paving, and the city for subsequent repairs. Anything, therefore, which throws on the property owners more than the burden of having the pavement well constructed in the outset is unjust to them.” And again, “It is the duty of the city to make the repairs. But by this contract they make the property owners liable to pay, not only for the laying of the pavement, but for making repairs for seven years. And every person who was to bid for the contract was obliged to agree to these terms. * * * If, as the contractor claims, no repairs will be needed, then there was no need of such a clause.”

Neither in our opinion can this contract be distinguished from that which was ruled upon in Brown v. Jenks by the supreme court of California, 32 Pacific Rep. 701. In that ease as in this neither the law nor the resolution of the council letting the work authorized an agreement to keep the street in repair for five years but the contract included a stipulation that the contractor should give a bond conditioned “for keeping the street so improved in thorough repair for five years from the completion of the contract.” The court held that “the bond was not only unauthorized by the statute but the requirement changes, and may increase the burdens of the property owner.”

“It is manifest,” said the court, “that the obligation to keep the street in repair for five years is a burden which one would not undertake for nothing. Therefore a contractor would charge a higher price for the work when he was forced to contract also for repairs. The expense undertaken is- indefinite; and the property owner must pay for them in advance, whereas the •■statute provides for repairs after the necessity for them appears. Then, it being contingent, he will be paying for repairs which may never be required.”

In that case it was suggested, as it is here, by our learned brother, that “the specifications were a mere guaranty that the work should be well done,” and “would not require repairs for five years” but said the court: “The lot owner can not be made to pay for such a guaranty, which may become worthless before the time has elapsed. Officers are provided and vested with the power, and charged with the duty of seeing the work well done. A bond can not be substituted for the performance of this duty. Besides, it is for all repairs, and not such as may result from defects in the work.”

In this case the unequivocal and unqualified agreement “to keep the pavement in repair during the period of the guarantee and at the end of five years to turn it over to the city in good order and condition” is not qualified by the subsequent clause which stipulates and binds the company further for the expense of all repairs which may become necessary from any imperfection in said work or materials.” These covenants are distinct and cumulative and both must be given their full significance and so construing them we think the inevitable result is that it is an indirect effort to saddle upon the individual a burden which the statute intended should be put upon the public which used the street.

Cole v. People, 161 Ill. 16, is cited as sustaining the view that a stipulation in the contract for keeping in repair does not render the ordinance under which it was let void. The court in that case held that in a collateral attach on the ordinance the bond filed with the specifications was no part of the ordinance and while expressing the view that a city might require a guaranty for a specified time as a part of the warranty of the fitness of the material used, the court evidently disposed of the defense on the ground that it was not available under the laws of Illinois in the proceeding for judgment for the tax, and declined to say whether it would have been allowed if presented upon the application for confirmation in the original proceeding. Certainly there is nothing in the opinion which overturns or in our opinion weakens the many well considered cases already cited from other states which hold to the views expressed by the majority of this court in Verdin v. St. Louis, 131 Mo. 26 (33 S. W. Rep. 480). We still adhere to the ruling in that case and consider the effect to cover up repairs under the name of guarantee as no less transparent than the plan condemned in the Verdin case.

How much additional the contractor charged for this so-called guaranty and to cover the repairs that might or might not be needed, is as uncertain as it was in Verdin’s case, and the contract falls within the principle decided in that case.

In Fehler v. Gosnell, and Dickson v. Gleason, 35 S. W. Rep. 1125, the Kentucky court of appeals on May 26 of this year construed an ordinance for the improvement of Oak street in Louisville. The 14th section of the ordinance provided: “The contractor shall guaranty the faithful performance of his contract according to this ordinance, and the pavement therein specified and the materials composing the same shall be kept in good repair for the period of five years from the completion of the work and its acceptance by the board of public works; and to protect the city as to the character of said work and material, and such repairs as may be needed, the board of public works to be the judge, the contractor shall deposit bonds of the city of Louisville, or of the United States amounting to ten per cent of the original contract price.”

By Kentucky statute the city at large was liable for repairs of the streets. It was contended there as here that the stipulation for five years’ repairs had the effect to cast the burden on the abutting owners. The court of appeals overruled Gosnell v. City of Louisville, 14 Ky. Law Rep. 719, decided by the superior court and cited by the respondent in their brief, and said: “In this case, the contractor is required, not only to guaranty the faithful performance of his contract according to the ordinance, but that ‘the pavement therein specified and the materials composing the same shall be kept in good repair for the period of five years,’ and further, that, ‘to protect the city as to the character of said work and material, and such repairs as may be needed, the board of public works to be the judge, the contractor shall deposit bonds of the city of Louisville or of the United States amounting to 10 per cent of the original contract price of- the entire work, with the city treasurer who shall hold the same * * * to be applied as far as need be in the necessary repairs of said work.’ This provision, in our judgment, not only embraces a guaranty of faithful work, but also a provision for repairs rendered necessary by other causes than defects in the contractor’s work.”

The court also held that the provision as to depositing the bonds caused the bids to be higher than they would have been. That ease is on all fours with this in that it contains both the general and special guarantees.

In McAllister v. Tacoma, 37 Pac. Rep. 447, the supreme court of Washington held in the absence of any provision in the charter for the payment of repairs the presumption would be that the city would pay them, and that the action of the board in making it a condition that the bidder should give a bond guaranteeing the work for five years was unauthorized and the effect of not only making the -abutting property pay for said repairs but to pay for them in advance and accordingly set aside the assessment. To the same effect see, also, Paving Co. v. Leach, 34 Pac. Rep. 116.

In view of the unanimity of judicial opinion that the stipulation for repairs for five years does impose an unlawful burden upon the property owner and in every one of them the language used is almost identical with that employed in this contract and was held by all of said courts except Illinois that such words as “guarantees the pavement constructed under these specifications for five years, agrees to keep the same in repair'during the said period and at the end of said term of five years turn said pavement over to the city in good order and condition,” was an Undertaking to repair, regardless ot' the cause of the defects, we can not reconcile the law upon which we are all agreed with the conclusion reached.

Judge Burgess concurs in my construction of the contract and in the views by me expressed.