163 Mo. App. 155 | Mo. Ct. App. | 1912
Action to enforce collection of certain taxbills issued to relator Pranks in payment for paving certain streets in the city of Webb City, which is a city of the third class. The defendant resisted collection on the ground that the taxbills were void. Trial by court, judgment in defendant’s favor and plaintiff has appealed.
The objection urged against the validity of the taxbills is that the statute and the ordinances of the city were not complied with by the city council and for that reason the council did not acquire jurisdiction to make the contract for the work. The proceedings of the council may be summarized as follows: The council passed resolutions declaring it necessary to pave the streets in question. These resolutions were passed at different dates and each applied to a certain specified portion of the street. These were all published as required by the statute. No protests were filed. Estimates of the cost of each were then prepared and filed by the city engineer, bids were advertised for in the proper way and the contract for the work awarded to the relator Pranks. The work
The objection of most weight against the validity of these taxbills is that no estimate of the cost of the improvement was filed by the city engineer until after the time allowed to the property owners within which to protest had expired. It is conceded that such an estimate was made and filed before the contract.was entered into but it is insisted that the property owners
The statute in force at the time, as far as this question is concerned, was sections 5858 and 5859, Revised Statutes 1899, as amended in 1901, Session Acts 1901, page 63 et seq. Section 5859 provides “when the council shall deem it necessary to pave . . . the roadway of any - street . . . for which a special tax is to be levied as herein provided, the council shall by resolution declare such work or improvement necessary to be done and cause such resolution to be published in some newspaper printed in the city for two consecutive insertions in a weekly paper or seven consecutive insertions in a daily paper and if the majority of the resident owners of the property liable to taxation therefor . . . símil not within ten days thereafter file with the 'clerk of the city their protest ágainst such improvements then the council shall have power to cause a contract for said work to be let to the lowest and best bidder on plans and specifications filed 'therefor with the city clerk by the city engineer or other proper officer.”
Section 5858 provides: “Eighth: Before the council shall make any contract for . . . paving . . . any street ... an estimate of the cost thereof shall be made by the city engineer or other proper person . . . and no contract shall be entered into for any such work or improvement for a price exceeding such estimate.” This estimate must be prepared and submitted to the council before the contract can be let by the council for the statute expressly so provides and all the authorities agree that
The statute does not provide either expressly or by implication that the engineer’s estimate of the cost of the improvement is to be made and filed for the inspection or benefit of the property owner nor is there any provision for giving notice to him of this estimate. The only provision for notice to the property owner is found in the requirement for publication of the resolution declaring the improvement necessary. It is clear therefore that if we confine ourselves to the statute, it is the passage and publication of the resolution and its contents to which we must look to determine the question of the jurisdiction of the council in the first instance. In this case, however, there was an ordinance of the city, No. 516, which provided in section 1 that when the city council should deem it necessary to pave the street, they should direct the city engineer to make an estimate of the cost, which he should do at once, and submit the same with specifications of the work proposed to be done to the council as soon thereafter as practicable. Section 2 provides that, “Before proceeding further with said improvement the council shall by resolution declare such work necessary to be done, etc.” Then follows the provision practically in the language of the statute, section 5859, as above quoted. It is now contended that even though the statute does not require the estimate to be filed at the time the notice is given by publication of the resolution, yet, the ordinance does, and the resolution recites that such estimate is on file with the city clerk, and the estimate not being on file the ordinance was not com
Cities can only exercise such powers as are granted them by their charters and in this case the statute is the city’s charter, therefore, this city council could only exercise such/ powers as are granted it by the statute and in the exercise of the powers granted they-must follow the statute. [City of Nevada v. Eddy, 123 Mo. 546, 27 S. W. 471; St. Louis v. King, 226 Mo. 334, 126 S. W. 495.] This being true, it logically follows that while power to act depends upon compliance with the statute, yet if the statute is complied with then jurisdiction attaches. It was never intended that the city council should be given control over its own jurisdiction. If- an ordinance enacted by the council can be made the basis of jurisdiction to govern a future action of the same body, then the question of jurisdiction is made to depend upon the changing moods of the council, and it could tie or loosen its own hands at will, and a party dealing with it would be required to familiarize himself with its latest ordinance to determine its power instead of going to the statute creating it from which all its powers must be derived. One purpose of our lawmakers in classifying our cities and chartering them under a general law was to secure uniformity in the powers that should be exercised by the cities of each class and hence the statute itself designates the powers of the city council and prescribes the conditions under which those powers may be exercised and the council is powerless to add to or detract from these provisions. Since the charter of the city, which, is the statute, provides the manner in which the council shall proceed, the council cannot by ordinance or otherwise bind itself to do more than the charter requires. If the council proceeds as directed by the statute it will be within its jurisdiction, even though it may not proceed in compliance with its own ordi
The resolution declaring- it necessary to pave in this case recites, “and the' same shall be done according to the plans, specifications and estimates of the city engineer on file in the office of the city clerk and general ordinance, No. 517.” The plans and specifications were not on file in the city clerk’s office except as they were contained in ordinance No. 517. This ordinance, however, contained complete specifications in detail which were, evidently, prepared by the .city engineer or some other competent person and were then incorporated in the ordinance. It is contended that because separate plans and specifications signed by the city engineer were not on file with tbe clerk at the time the resolution was published that no notice was given the property owner as to what was to be clone and for that reason the council did not acquire jurisdiction. It will be observed that the statute makes no provision as to what the resolution declaring the improvement to be necessary shall contain except that it must declare the improvement necessary. The only provision as to plans and specifications is that the contract must be let upon the plans and specifications prepared and filed by the city engineer. This, however, is for the information of bidders and not property owners. The only requirement of the statute as to furnishing information to the property owners is found in the provision for publication of the resolution. The property owner then must look to the resolution and to the sources of information therein pointed out in order to ascertain what the city council proposes to do. Since the publication of this resolution is the only provision of the statute for notifying the property owner of what
After the contract was let, a material change in the grade along one block was made, upon the insistence of property owners in that block, and an additional cost of $250 thereby added. The general contour of the street was not changed and no injury to anyone is shown and if the cost of paving each block was assessed separately as required by statute, none of the extra cost was taxed to defendant. Whether it was or not, however, is not clear from the testimony here. We do not think this change of grade should avoid the taxbills but defendant should not be required to pay any part of this extra cost.
While a strict compliance with the statute is essential to the validity of the taxbills and the city council should be careful to follow its -requirements, yet, it is not the policy of the law nor of the courts in construing the law to hedge these proceedings for
After a careful examination of this record we are of the opinion that on the conceded facts these tax-bills were valid and the trial court erred in holding them void. Judgment reversed and cause remanded with directions to enter judgment for plaintiff and in computing the amount due on the taxbills no part of the extra cost of $250 occasioned by the change in the grade should be included.
