54 Mo. App. 315 | Mo. Ct. App. | 1893
— In this case both plaintiff and.defendant have appealed from the judgment of the circuit court. We will first notice the grounds of the plaintiff’s appeal. It is conceded that the plaintiff is a city of the second class, under the statute.
The plaintiff city by an ordinance under the authority conferred upon it by statute (section 1429, Revised Statutes) established sewer district number 27. And by a subsequent ordinance it was provided in section 1 that: “The city engineer is hereby directed to cause district sewers to be constructed within a portion of sewer district number 27, with all the lateral sewers, inlets, manholes, junction pieces and other appurtenances necessary to render such sewers complete and efficient, said sewers '¡being by the common council deemed necessary for sanitary and draining purposes. Said sewers shall be located as follows, viz: A sewer commencing at the manhole on Nineteenth and Mulberry streets, thence east on Mulberry street to Twentieth street, thence south on Twentieth street to the alley north of Faraón street, to be made of vitrified clay pipe, eighteen inches in diameter on Mulberry street and twelve inches in diameter on Twentieth street. Also a sewer commencing at same manhole as above, thence south on Nineteenth street to the south line of lot 7, block 9, Harris’s addition, to be made of vitrified clay pipe, twenty-one inches in diameter from Mulberry street to Faraón street, fifteen inches in diameter from Faraón street to Jule street, and twelve inches in diameter south of Jule street; also a sewer made of vitrified clay pipe, commencing on Eighteenth or Kemper street at the alley between Clay and Mulberry streets, thence east on said alley to Twentieth street, to be eighteen inches in
The contract for building these sewers was awarded to Owen Danaher, who constructed the same, and for which the tax bills sued on were issued to him. The bank holds the tax bills under an assignment from Danaher. The sewers were all made of vitrified clay pipe. The total cost of all the sewers under the contract was shown to be $4,440.60, and that three of them, the materials for which it is contended is not specified in the ordinance authorizing their construction was $865.22. The court at the trial instructed the jury on its own motion to find for the plaintiff on each count of the petition the amount of the tax bills less the proportionate cost of the' three sewers mentioned in the evidence for the construction of which no material was specified in the ordinance.
The plaintiff contends that the court erred in thus instructing the jury. Whether the court erred or not in its direction to the jury depends upon the construction to be given to the ordinance providing for the construction of the sewers. The plaintiff contends that
The ordinance in question plainly shows upon its face that it w s the intention of the common council by its passage to provide for six pipe sewers in said district number 27. Of what material were they to be made? It is specified in the ordinance that the first three sewers shall “be made of vitrified clay pipe,” and the fourth is required by the specifications of the ordinance to be a “sewer made of pipe,” and the fifth and sixth to be “a pipe sewer” of certain dimensions. Now if the words, “vitrified clay,” had preceded that of “pipe” in describing the material of which the first ’ of the sowers mentioned in the ordinance were to be
If we adopt a construction which presumes that the common council never intended to pass an ordinance incapable of a sensible and practical operation, it will be in furtherance of such construction if we presume that-the descriptive words “vitrified clay” are to be implied wherever needed in said ordinance to give effect to what we think was the intent of the common council, that is to say, that all of said sewer pipes should be made of the material said words describe.
This construction will harmonize all the provisions •of said ordinance and render the same operative,.which otherwise would not be the case. The exercise of this Judicial license we think is allowable under the authorities we have cited. The construction of the officers of the city whose duty it was to execute said ordinance • was the same as we have concluded it should be, as .shown by the contract and specifications for doing the work. Taking this construction as correct, 'it necessarily follows that the instruction of the court to the jury was error. It should have declared that the plaintiff was entitled to recover on each count the whole amount of the warrant upon which it was based with the interest that had accrued thereon.
Clopton v. Taylor also answers the defendants’ further objection that in counting the time of the publication that the two Sundays included therein should have been excluded. It was held long ago in this state, that in counting statute time Sunday was not to be excluded. State v. Green, 66 Mo. 631. We think so far as any objection is raised in the record before us the contract was legally awarded.
The defendant next insists that said ordinance is void for the reason that it did not specify the grade of the proposed sewers nor the depth of the excavations nor to any plan or specification. It will be observed by reference to the record that there was no issue as to the grade of the sewers, nor as to the depth of the excavations to be made therefor. It does not appear that this objection was interposed either in the pleadings, evidence or instructions.
As to the other objection that the ordinance does not refer to any plan or specification, it is sufficient to
The specifications, a copy of which was incorporated in the contract for doing the work, were quite elaborate and minute in every particular. It is difficult to see how it could have been more so.’ Besides this the supreme court of this state in the recent case of Gibson v. Owen, 110 Mo. 445, which'was in many essential particulars very like the case at bar, declared that this “court has never required a literal compliance with ordinances providing for such local improvements. “The principle thus announced affords a complete answer to most of the objections which the defendant has interposed in this case. Nothing more need be said.
The evidence tended to show, and the jury must have found, that the sewers connected with the main sewer of the city and that the latter ran to the Missouri river, which was the natural course of drainage. This was all that was required by the statute. Sec. 1429.
The objection that the tax bills show upon their face that they were issued for sewers to be constructed and were made out prior to the completion of the work was not taken at the trial, or if so no exceptions were preserved to the action of the court in overruling the same, so that we cannot now notice that matter here.
The defendant further challenges the judgment on the ground that one of said sewers was built over private property. The court by an instruction directed
No error is perceived in the action of the court in the giving or refusing of instructions. "We therefore are of the opinion that said tax bills are valid.
The judgment of the circuit court will be reversed and the cause remanded to that court with directions to enter judgment on each count of the petition for the plaintiff for the amount of the several tax bills with proper interest thereon.