49 Mo. App. 117 | Mo. Ct. App. | 1892
This action is on tax bills for work done in paving a street in the city of Sedalia under an ordinance of said city. The work was done and tax bills issued. The judgment below was for defendant, and plaintiff appealed.
The two questions presented by the case are whether the work was done as required by the ordinance, and whether the city council was authorized to let the contract to the plaintiff’s intestate, he being a bidder, but not the lowest bidder, at the letting. The first question merely involves a construction of the ordinance. The construction placed upon it by the trial court, as near as we can gather from the record, is that the excavation preparatory for the boulders and gravel should be sixteen inches below the grade at the sides, and ten inches below at the center of the street. Our view is that the meaning of the ordinance is that the street was to be excavated ten inches below grade at the sides, gradually rising to a crown of four inches below such grade at the center of the street. The
The court found that the plaintiff’s intestate was not the lowest bidder; and also found that one Anderson, who was the lowest bidder was a responsible bidder. The question is, had the council the power or the discretion to let the contract to the plaintiff’s intestate? If the charter or ordinance of a municipality provide that the contract shall be let to the lowest bidder, a violation of this command of the law would be against the substantial rights of the taxpayer and would render a contract void which was let to one not the lowest bidder, in. any case where such rejection of the lowest bid was an exercise of an arbitrary will on the part of the city authorities, without any showing that such authorities exercised their jurisdiction in that respect, by determining that the rejected bid was not the lowest and best bid. People ex rel. v. Gleason, 121 N. Y. 631. In such case, the duty of the city authorities is not wholly ministerial, it partakes sufficiently of a discretionary or judicial character, in the absence of fraud or misconduct, to render their, conclusion or
There were objections to the testimony which was introduced to show the true grade of the street at the date of the improvement in order to sustain the defense that the work had not been done as required, with reference to the grade of the street. It is difficult to fully understand the bearing of some of this testimony, had on the issue, nor are we sure that we understand, to their full extent, the objections urged to this testi
The foregoing considerations lead to a reversal of the judgment, unless we find, as contended by defendant’s counsel, that other portions of the record show the judgment to be for the right party. These tax bills are against lots 6, 7 and 8 which are adjoining lots. They face south on Fourth street (the street improved), the side of lot 6 being also on Ohio street. A strip of forty-four feet in width, along Ohio street, was sold off the north end of lots 6 and 7, such strip fronting out east on Ohio street. The point is made that the entire lot, including this strip off the north end, is liable for the improvement. "We are not of this opinion. The charter is that “for the payment of the cost of such improvement the city register shall levy a special tax on the property abutting on such street, avenue or alley, according to the respective fronts of lots so abutting thereon, and according to the amount and cost of work done in front of, or adjacent to, such lots.” Our interpretation of this provision is, that the improvement is charged against the property which abuts the street improved at the time the hen attaches, regardless of the depth of the original lot. The property benefited and, consequently, the owner benefited is the abutting property and owner. The abutting owner has abutting rights, privileges, conveniences and advantages not common to others. The word “ adjacent,” in the foregoing section of the charter, has reference to the work done on the street within a certain length, which is to
Tbe next point relates to tbe notice given for tbe letting of tbe contract. Tbe ordinance required that there should be published “ in one or more of tbe daily papers pubbsbed in Sedaba a notice stating that bids wib be received * * * at least five days before tbe time fixed for opening tbe same. ’ ’ Tbe notice was pubbsbed in a daily paper issuing every day except Monday, tbe day on which tbe bids were to be opened. It was inserted on tbe eleventh, thirteenth, fourteenth, fifteenth and sixteenth, which last day was Sunday. Plaintiff’s counsel insist that, since notice is not required by tbe city charter, it is not essential, and that tbe ordinance requiring such notice is merely directory. We are not of this opinion. We expressly so ruled in Galbreath v. Newton, 30 Mo. App. 380. See, also, Keane v. Cushing, 15 Mo. App. 96. Notice of tbe letting of contract for public work, tbe cost of which is to be cobected from tbe citizen, nolens volens, by special assessment of bis property, is certainly a matter “ which affects tbe substantial rights of” such citizens. When such is tbe case, there must be “ a fair compliance with ab tbe conditions precedent, whether prescribed by charter or ordinance.” Cole v. Skrainka, 105 Mo. 303. But tbe question remains, whether tbe notice as pubbsbed is sufficient. Tbe fact that tbe last pubhcation was on Sunday does not affect tbe legality of this class of notices. Taylor v. Palmer, 31 Cal. 240. Tbe
Counsel makes the further point that the property-owners should have been given an opportunity to do the work themselves before it was let out by the city. Our answer to this is, that no such requirement is found in the charter or. ordinances. Other points made in support of the judgment being for the right party are not deemed tenable. The judgment is reversed, and the cause remanded.