182 Mo. App. 581 | Mo. Ct. App. | 1914
This is a suit in equity to cancel a certain tax bill and remove the cloud thereby cast upon the title to plaintiffs’ property. The decree below was for the defendants, and the case is here upon plaintiffs ’ appeal.
The suit was begun by Laura C. Gratz, the owner of certain real property fronting upon Taylor avenue, a public street in Kirkwood, a city of the fourth class. During the pendency of the suit plaintiff departed this life, and the cause has been duly revived in the names of the devisees under her will.
The tax bill in question was issued for a special assessment levied against appellants’ property for the improvement of said Taylor avenue. A resolution was duly passed by the board of aldermen of the city of Kirkwood, and approved by the mayor of said city, declaring it necessary to improve a portion of said Taylor avenue, in the manner therein specified, and in accordance with specifications contained in certain ordinances, which resolution was duly published according to law; and an ordinance was duly enacted, known as ordinance No. 754, providing that such portion of the above-mentioned street be so improved.
Thereupon advertisement was duly made for bids for doing the work; and a preliminary estimate of the cost thereof was filed by the mayor. Thereafter the defendant contractor, Henry Winter, submitted a bid, and at a meeting of the board of aldermen such bid, being the only bid filed, was accepted, and an ordinance was duly enacted contracting with Winter for doing such work. The latter ordinance, among other things, provided that when the work should be fully completed in accordance with such contract ordinance, and duly accepted, the city would pay the contractor therefor, in accordance with his accepted bid, “by issuing special tax bills as provided in ordinance No. 572, and not otherwise. ’ ’
Before the contractor filed his bid, he received notice from plaintiff's counsel that plaintiff would contest the validity of any tax bill issued against her property for such improvement of said Taylor avenue; such notice not stating, however, any of the matters relied upon as rendering such tax bill invalid.
The above-mentioned work was duly performed by the contractor, and a final estimate of the cost thereof was filed by the then city engineer. Thereupon the city accepted the work, and an ordinance was enacted levying a special assessment upon the property of plaintiff andi others to pay the costs thereof, and providing for the issuing of special tax bills therefor.
I. It is first contended that the tax bill is void for the reason that there was no legal estimate of the cost of said improvement, as is required by section 9107, Revised Statutes 1909, applying to cities of the fourth class. The latter section provides as follows:
“Before the board of aldermen shall make any contract for building bridges, sidewalks, culverts or sewers, or for paving, macadamizing, curbing, guttering or grading any street, avenue, alley, or other highway, an estimate of the cost thereof shall be made by the city engineer or other proper officer and submitted to the board of aldermen, and no contract shall be entered into for any such work or improvement for a price exceeding such estimate.”
The estimate which was filed! conformed to ordinance No. 572, above mentioned, in that it gave the estimated amounts and prices of the various items of the work, stating also the estimated total cost thereof. It was signed by J. H. Knierim, mayor. In the agreed statement of facts it is stipulated and agreed that this estimate, though signed by the mayor, “was in truth and fact made by one Joseph M. Wilson, a private citizen and not a proper officer of said city;” that said Wilson was an'educated and experienced civil engineer, and afterwards became the city engineer of said city,
It is contended that this was a plain violation of the statute, wholly unwarranted, and that it renders the tax bill absolutely voidi. It is argued, for one thing, that the fact that the mayor signed the estimate did not make it his estimate, for the reason that if he could lawfully make it at all, then it devolved upon him to do so personally, exercising his own judgment in the premises.
But we think it clear that if the mayor was a proper officer to make and file the estimate, within the meaning of the statute, he could rightfully consult a skilled engineer concerning the same, and adopt, as his own, an estimate prepared wholly or in part by such engineer; or, at any rate, that he could do so, provided he gave the matter such attention and so far informed himself as to the same, that'the estimate filed may properly be said to reflect his own judgment in the premises, and not alone that of a private individual not bound by the sanctity of an oath of office. And in the absence of evidence to the contrary it must be presumed that the officer performed his duty in this respect, for such is the presumption which obtains in such a case.
The case is not like that of Paving Company v. O’Brien, 128 Mo. App. 267, 107 S. W. 25, where the ordinance made it the duty of the city engineer to prepare the plans and specifications, but such engineer accepted plans and specifications made and presented by one of the bidders. It was held that to thus bestow an advantage upon á favored bidder, was sufficient in itself to make the act unlawful, but the court further held against the validity of the tax bill, ‘ ‘ on the ground that the engineer could not delegate the performance of a duty so important to a private person, whether or not such person was interested in the proposed improvement as a prospective bidder, or otherwise.” The' language just quoted, however, we think is not
Neither is the decision in Rich Hill v. Donnan, 82 Mo. App. 386, here controlling. It is there saidi: “In this case an estimate was made in the name of the proper officer of Rich Hill, but it was not made by him. He delegated his duty to one or two other persons. ... In answer to a question whether he made an estimate he answered: ‘Mr. Tedford did for me, because I was working and probably away at that time, but if anything came upi he was to attend to it, and if my name was put to it, Mr. Tedford or Mr. Bird did it.’ This was an wholly unwarranted proceeding. Instead of an estimate being made by the officer designated by law, we have one gotten up, for aught appearing to the contrary, by one of two private persons. ’ ’
It thus appears that in that case the estimate was in no sense made by the officer whose duty it was to make it; that he did not sign it, nor, for aught that appears, had he anything whatsoever to do with it. Manifestly he could not wholly delegate the performance of such duty and authorize a private person to sign his name to any estimate which the later might prepare.
Neither is what is said in Boonville v. Stephens, 95 S. W. 314, of consequence here. The language of the opinion referred to by appellants’ cóunsl was used
In the instant ease, not only must the presumption be indulged that the mayor performed his 'duty with respect to the estimate signed and filed by him, but the agreement contained in the agreed statement of facts tends to confirm this, in that it appears that the mayor consulted with the engineer in question before filing the estimate. From this it is fair to conclude that the mayor satisfied himself as to the correctness of the estimate, before he adopted and filed the same. If he did so we think that he so far performed his duty in the premises that no error can be said to inhere in the proceedings in this respect.
It is also earnestly insisted by learned counsel for the appellant that the mayor, who was not an engineer, was not a “proper officer” to make the estimate, within the meaning of the statute.- At this particular time the city of Kirkwood had no city engineer. The statute provides that such estimate shall be made by the city engineer, or other proper officer, and it is contended that by “other proper officer” is meant an officer having special knowledge and skill with respect to such matters.
It is true that there are opinions of the Kansas City Court of Appeals which contain language lending much support to this contention.
In Boonville v. Rogers, 125 Mo. App. 142, 101 S. W. 1120, the only estimate of cost was: “Not to exceed $300'.” It was held that this estimate was not
.But despite such expressions of our brethren of the Kansas City Court of Appeals, in cases where the precise point was not involved, the question appears to have been definitely decided by that court, contrary to appellants ’ contention, in Fayette v. Rich, 122 Mo. App. 145, 152, 99 S. W. 8. There the court said: “If the city had an engineer the statute did not in terms impose the duty on him of making an estimate of the cost of the sidewalk. Section 5895 (Sec. 9407, supra) provides that such estimates may be made by the city engineer or other proper officer. It is left to the council to say what officer shall make estimates of the cost of city improvements. Whoever that body selects, he, being an officer of the city, may be presumed to be qualified for the duty. ”
H. It is also urged that the contract price for the improvement in question exceeded the preliminary estimate, contrary to the provisions of the statute. (Sec. 9407, supra.) The statute provides that no contract shall be entered into for a price exceeding the estimate. And if the statute was violated in this respect, the contract was void and the tax bill necessarily invalid.
The estimate filéd by the mayor, in accordance with the provisions of ordinance No. 572, supra, gave the estimated amount of each item of labor and material, i. e., for grading, macadam, gravel, curb and gutter, and for rolling the surface, together with the estimated prices thereof, per unit, and the total estimated price of each of such items, making the total estimated cost $2751.80.
The contractor’s bid, upon which the contract with him was based, merely stated the prices, per unit, at which the contractor proposed to do the work, i. e.,
The record shows that the total' cost of the work at the contract rates was $2628.72, being $123.08 less than the total estimated cost. It was estimated that 67 squares of gravel would be necessary whereas 72.4 squares thereof were required. Likewise there were 48.7 squares of macadam used!, while the estimate was 37 squares. The amounts of the other items were the same as or less than the estimates.
It is contended that the bid was indefinite and uncertain, and that it might or might not have exceeded the total amount of the estimate; and that as the price of gravel in the bid was higher than in the estimate, and the contract ordinance agreed to pay the contractor the prices mentioned in his bid, the contract was in contravention of the statute. But we are of the opinion that the contract entered into cannot be said to have been “for a price exceeding such estimate.” The statute does not in terms require a bidder to name a specific price or gross sum. It merely provides that no contract shall be let for a piice exceeding the estimate. The contract entered into was to the effect that the contractor should do the work in question at the prices mentioned in his bid, but without reference to the amount of the various items.
It cannot be said that the contract was let for a price exceeding the estimate for the reason alone that the price per unit for one item was greater than that
And! we see no valid objection to the making of such a contract by the city. It permits the contractor to receive pay for the amount of labor and material actually furnished by him, at the contract price, provided the total thereof does not exceed the total estimated cost of the work. On the other hand, it
III. It is further urged that the plans and specifications provided for in the ordinances above mentioned were so uncertain and indefinite “as to the line, grade, plan, form and dimension of the work” as to render the tax bill void. The specifications provided were quite definite and explicit; and there is no contention that any error inhered in the proceeding in this respect otherwise than because of the provision of section 16 of ordinance 572, supra. That section provided as follows:
“The street and alley committee shall have the right to make alterations in the line, grade, plan, form or dimensions of the work herein contemplated, either before or after the commencement of the work. If such alterations diminish the quantity of the work to be done, they shall not constitute a claim for damag’es or for anticipated profits on the work dispensed with; if they increase the amount of work, such increase shall be paid! for according to the quantity actually done and at the price or prices stipulated for such work in the contract.”
The street and alley committee was a committee of the board of aldermen, composed of three members thereof. And it is argued that the plans and specifi
It is true that it devolves upon the city authorities to determine upon definite plans and specifications for the proposed work, in order to impart definite information to prospective bidders respecting the improvement," and prevent favoritism and corrupt practices, and in order as well that property owners may have an opportunity to arrest the proceedings by a protest against it in the manner provided by the statute. [See Excelsior Springs v. Ettenson, 120 Mo. App. 215, 96 S. W. 701; Ramsey v. Field, 115 Mo. App. 626, 92 S. W. 350.] But we think that the proceedings here in question were not rendered invalid, and the tax bill void, by reason alone of the presence of section 16' in ordinance No. 572, supra. It is true that that section attempts to authorize changes to be made after the plans and specifications have been adopted, and public notice given of them, and even after the letting of the contract.- For this reason it is in plain violation of the mandatory provisions of the statute. Furthermore this section is void because the board of aldermen thereby attempted to delegate to a committee the power conferred upon them by statute. [See Haag v. Ward, 186 Mo. 325, 85 S. W. 391; Neill v. Gates, 152 Mo. 585, 54 S. W. 460; Ramsey v. Field, supra.]
It quite clearly appears that this section is void, and it only remains to see what effect this should have upon the matter in hand. That it does not invalidate the entire ordinance of which it forms a part we think is likewise, clear, for it may be altogether eliminated without in any manner affecting what remains. [See Haag v. Ward; Ramsey v. Field, supra.] Though, as a part of ordinance 572, it was called into the contract,
We are therefore of the opinion that the tax bill is not rendered void by reason of the presence of this section in the ordinance in question.
IY. Much is said by learned counsel for the appellant to the effect that in a proceeding of this sort every provision of the law must be strictly followed. But this should be taken to mean, not a highly technical compliance, with the requirements of the law, but rather a fair and reasonable observance of its provisions. With respect to this question it is said by Lamm, J., in Gist v. Construction Co., 224 Mo. l. c. 379, 380, 123 S. W. 921: “It is a fundamental proposition that laws, whether State or municipal, are presumed passed in a spirit of justice and for the welfare of the community. It follows they should be so interpreted, if possible, as to further that purpose. Therefore,
It is true that the proceeding is in invitum, and the courts have ever jealousy guarded the rights of the property owner, and required that the mandatory provisions of the law be fully complied with before his property shall be burdened with a special tax assessment for a public improvement. But this should not be regarded as meaning that questions raised with respect to such a proceeding, of a purely technical character and wholly lacking in substance, should be allowed to prevail1 and to defeat a tax bill for work done by a contractor in good faith, where the real and substantial rights of the citizen, which the law seeks to protect, have in fact been fully safeguarded. [See also Meyers v. Wood, 173 Mo. App, 564; Delmar Investment Co., et al., v. Lewis, et al., 162 S. W. 675.]
A consideration of the proceedings had upon which the tax bill here in question is predicated, as shown by the agreed statement of facts, has led us to the conclusion that there was in fact no failure to comply with the law, and that the tax bill should be held to be valid. It follows that the judgment should be affirmed, and it is so ordered.