137 Mo. 650 | Mo. | 1897
OPINION IN DIVISION ONE.
This suit is on a special tax bill for the cost of paving Walnut street in the city of Springfield in front of the property of defendants and to enforce a lien therefor. The action was commenced in favor of J. B. Reilly, the contractor. After an answer had been filed by defendants the Central National Bank, as assignee of Reilly, was, under objection
To the amended petition of the bank, defendants filed an answer, in which they plead that the resolution declaring the necessity of paving said street embraced the entire street from curb to curb; that the ordinances and law governing cities of the third class like Springfield require that before any contract could be let, or any advertisement or estimate made, or bid received, that an ordinance authorizing the work to be done should first be passed; that no ordinance was passed in this case until long after the estimate and advertisement had been made, which was only a partial one, covering only a part of the street, and omitting therefrom more than eight feet in the center of the street; that said advertisement, estimates, bid, and contract, under which the work was done, were illegal and void.
The answer further states that the ordinance, as well as said resolution, provided for paving the street its entire width, and that this was never done, but that the space between the street car rails, for the entire length of street, remains unpaved; that in consequence the said space constitutes a depression or ditch in the middle of the street lined by street car rails, and is several inches deep, in which water flows, washes out holes, and stands in the form of mudholes; that the beauty of the street is marred; that the paving is of no substantial benefit to the property, and averred other facts showing at least that the work, as done and to the extent done, was of a great deal less value as an improvement, than the same work would have been worth if the remainder of the street had been completed.
Upon a trial the court found for the defendants and rendered judgment accordingly. Plaintiff appealed to the St. Louis court of appeals, by which the cause
Walnut street is sixty feet in width; twelve feet on either side thereof is devoted to sidewalks, thus making the roadway thirty-six feet wide. In the middle of the street is a street railway track five feet wide, running the entire length of the street.
On the fourth of November, 1891, the city council passed a resolution declaring the necessity of improving Walnut street by paving the same “with first-class brick pavement on both sides thereof,” and that such improvements should be made “in accordance with the plans, specifications, and estimates of the city engineer now on file in the office of the city clerk.”
This resolution was duly published. No protest of the property owners was made.
On the seventh day of January, 1892, a resolution was adopted directing the engineer “to advertise for bids for the construction of brick pavement of the first class on Walnut street.”
This resolution was duly published.
On the second day of February,. 1892, the bids were opened and that of James B. Reilly “for first-class brick pavement on both sides of Walnut street” was accepted and the contract awarded to him.
On May 3, 1892, a resolution of the council was adopted annulling the former action of ' the council awarding the contract to Reilly, and the engineer was ordered to readvertise for bids.
Under this resolution the engineer advertised for bids, but none were ever acted upon.
On May 17, 1892, the action of the council annulling Reilly’s contract was reconsidered and the street committee was directed to enter into contract with him as per his bid accepted February 2, 1892.
On the thirtieth of May, 1892, the contract was made and approved.
On July 5, 1892, defendants and other property owners on said street protested against the improvement.
, On July 7, 1892, the council passed a resolution directing the mayor to notify the railway company to pave the street between its rails and two feet on either side thereof. The mayor did so.
The ordinance which authorized the railroad company to construct and operate its railway on the street required it to make such improvement.
The railway company did pave the part of the street outside the railway track, as required, but did not pave that part between the rails nor did Reilly do so under his contract.
Five feet in the center of the street were thus left unpaved.
At the time of these proceedings a general ordinance of the city was in force, section 15 of which provides that where a street is ordered paved the pavement should extend on each side from the curb to the center line, “provided, that where the street being improved had a street or other railway track or tracks thereon, the property abutting on such street shall only be ■charged with the expense of improving that portion thereof between the outside gutter lines and that portion of the street to be improved by the street or other railway owning such track or tracks.”
Section 8 provides for passing and publishing a resolution declaring the improvement necessary, and if protest is not filed, provides that the council shall have
I. The court declared the tax bill invalid for the reason that the ordinance ordering the improvement was not passed until 'after the advertisement for bids had been made.
Both the statute, and the general ordinance of the city, require the proceeding to be initiated by passing by the council, and causing to be published, a resolution declaring the necessity of the improvement. They provide that, “if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days thereafter, file with the clerk of said city their protest against such improvement, then the council shall have power to cause such improvement to be made, and to contract therefor and to levy the tax as herein provided.” R. S. 1889, sec. 1498.
The resolution in respect to paving Walnut street was regularly adopted and published, and no protest having been filed the power to have the work done, and to cause the expense thereof to be charged against the abutting property as special taxes, became vested in the council.
In order to execute this power the charter required an ordinance to be passed requiring the improvement to be made. This is made a condition precedent to the exercise of the existing power and is held to be essential to the validity of the proceedings. City to use v. Eddy, 123 Mo. 558; R. S. 1889, sec. 1495.
By the resolution, audits publication, jurisdiction of the subject-matter and of the parties interested was acquired. The enactment of an ordinance to pave the
But a general ordinance of the city after requiring the passage of a resolution and its publication, and giving opportunity to protest, declares that “the council shall have power to cause such improvements to be made * * * and thereupon the council shall, by ordinance, order the construction of the improvement proposed by such resolution, and direct the engineer to advertise for bids therefor.”
Defendants insist that the order in which these steps shall be taken is fixed by the ordinance, and a departure therefrom, by advertising for bids before passing the ordinance, was fatal to the entire proceeding. In this contention they were sustained by the trial court.
There can be no doubt that the council possessed, not only the powers expressly granted, but also those essential to the declared object and purpose of the corporation. The power of the council to cause the streets of the city of Springfield to be paved is expressly given and all the powers essential to that object will be implied. The charter makes no provision for the details under which contracts for paving the streets shall be made, but intrusts them to the sound discretion and judgment of the council. While the statute governing cities of the third class does not require contracts to be let out to bidders, it makes no contrary or inconsistent
The - case of Keane v. Cushing, 15 Mo. App. 96, so far as it conflicts with these views, is not approved.
II. Defendants insist that, though the court may have erred upon the point decided, still the judgment is right upon other grounds, as disclosed by the record, and should be affirmed.
The record shows that the center of Walnut street is occupied by the track of a street railway and that the space between the rails was left unpaved. The contention is that the preliminary resolution,, passed by the council, contemplated the improvement of the entire street and a failure to pave the space between the rails renders the tax to pay the cost of what was paved absolutely void.
The resolution declared the necessity of improving Walnut street “by paving the same with first-class brick pavement on both sides thereof.” This preliminary resolution was required by section 8 of an ordinance entitled: “An ordinance defining the manner
Reading the resolution, in connection with these ordinances, there can be no reasonable doubt that the improvement contemplated by the resolution only included tha^ part of the street on each side of the railway track, and was not intended to include the part occupied by it. It must be held therefore that the resolution imparted notice to defendants, and others interested, of the extent of the improvement. Farrar v. St. Louis, 80 Mo. 393.
The council had power to cause the streets of the-city to be paved. This general power vested in the council the right to determine the character and extent of the improvement that should be made. The charter does not require the entire width of the streets to-be'paved at the cost of the property owners. Such matters of detail are properly left to the judgment of the municipal authorities. Objections should have-been addressed to the council by way of protest, as is provided' by the charter.
In the ease of Moran v. Lindell, 52 Mo. 229, only a driveway in the middle of the street was improved. The powers contained in the charter authorizing the paving of streets were general. A special tax against the property abutting upon the street for the cost of making the carriageway was sustained.
It was the duty of the railway company to pave
III. It appears from the record that the suit was originally brought in the name of Beilly to whom the tax bills were issued and made payable. At that time the bill was held by the Central National Bank as collateral security. Pending the suit the bill was assigned to the bank, which was, by leave of court, substituted as plaintiff and an amended petition was filed in the name of the bank as plaintiff.
Objection was made below to this amendment and substitution which was overruled by the court. It is now insisted that the amendment was improperly permitted for the reason that it substitutes a cause of action where none existed before such amendment was made. The question rather is: Could Beilly sue on the bill while the plaintiff bank held it as collateral security? If he had that right and the bill was afterward absolutely transferred to plaintiff, the statute author-, ized the substitution. B. S. 1889, sec. 2204.
The evidence shows that the bank, which held the tax bills as collateral ¿turned them over to Beilly the payee for collection, and authorized the suit to be instituted if necessary. This authority constituted Beilly the trustee of an express trust under the decisions of this court and gave him the right to sue in his own name under express provisions of the statute. He had possession of the bill and held the legal title; and
IV. Section 6 of the general ordinance defining the manner of paving streets provides that “in case any person whose bid is accepted shall fail, refuse, or neglect to enter into written contract and proper bond herein required within ten days after the acceptance of his bid, the certified check deposited by him shall be forfeited to the city, and the mayor shall take the necessary steps to recover the amount of the bond deposited by such bidder,” etc.
Defendants insist that under this provision Reilly forfeited his right to a contract by reason of a failure to enter into a written contract and give the required bond within ten days after the acceptance of his bid.
The ordinance neither by express terms nor by necessary implication provides for a forfeiture of the contract in case of such failure.
At most the power in the council to rescind the bid is implied. The provision was intended to protect the city by avoiding delays, complications with subsequent bidders, and loss and damage from the default of the bidder. It was not intended to limit the city to ten days in which to accept a written contract arid bond.
The council had the undoubted power at a subsequent meeting to reconsider and rescind the order rejecting the bid of Reilly, and thereafter to accept his bid and let the contract to him. It had acquired jurisdiction over the parties interested and the subject-matter. The bids were before it; the bid of Reilly was within the estimate of the engineer; the acceptance or rejection of the bid and making the contract were mere matters of business detail intrusted to the council and
V. Defendants question the constitutionality of those provisions of the law governing cities of the third class, which provide for the levy of assessments for paving streets, on the ground that the enforcement of such assessments would operate as the taking of the property of the landowner without due process of law.
The law is not obnoxious to that provision of the constitution which prohibits the taking of property without due process of law. The publication of the required resolution gives due notice to the landowner of the commencement of the proceeding and the owner •is required to be made a party to a suit to enforce a lien on his property for the tax assessed and is entitled to notice thereof and his day in court. St. Louis v. Ranken, 96 Mo. 497; Saxton National Bank v. Carswell, 126 Mo. 436, and cases cited in each.
The judgment is reversed and cause remanded.
OPINION IN BANG.
(Baeclay, C. J., and Maceaelane, Buegess, Robinson, and Beace, JJ.). — The opinion delivered in this cause by Judge Maceaelane, in the first division of the court, is approved and adopted as the opinion of the court in banc. Accordingly the judgment of the circuit court is reversed and the cause remanded,
