173 Mo. 319 | Mo. | 1903
This suit was begun by respondent as plaintiff below, to have declared void and can-celled, certain taxbills issued to appellant by the city oí St. Joseph, in payment of the cost of certain street improvements made in front of respondent’s property. The general improvement consisted of paving, curbing .and laying sidewalks on Ashland avenue for a distance of about two thousand feet at an aggregate cost of something like fifteen thousand dollars. The taxbill issued .against respondent’s property and sought to be can-celled, however, being only for the sum of $984,18. The grounds alleged by respondent for having said taxbills cancelled are that they are void, first, because the contract for the work was not approved by the common council of the city of St. Joseph, and, second, because if the contract was approved by the council the contractor failed to comply with the provision thereof and to complete the work within the time specified.
Defendant’s answer denied, first, that the contract had not been confirmed; admits that the work was not ■completed within the time specified in the original contract, and pleaded in avoidance that the time had been ■extended by ordinance, and that, even if it had not been ■extended, the city had prevented appellant from completing the pavement within the required time, by failing to seasonably grade the street by independent contractors as it undertook to do, and that the city was therefore estopped to say that the work was not completed within the specified period. The answer contains this further averment, and on account of which appellant now contends this court had jurisdiction of the case on this appeal:
“And this defendant states that for the court to hold or declare that the said city, by reason of the premises, is estopped to say that the work was not completed within the time required by the terms of the contract, but that the plaintiffs are not for that reason precluded from so saying, and that the taxbills described*326 in the petition and therein alleged to have been issued in part payment of the price of said work are void, would be in violation of the defendant’s rights established by section 15, article 2, of the Constitution of Missouri, of immunity against laws impairing the obligation of contracts, and contrary to the rights of defendant under section 10 of article 1 of the Constitution' of the United States, inhibiting state laws impairing the obligations of contracts, and this defendant invokes the protection of the rights guaranteed under the constitutional provisions aforesaid.”
As is readily seen, there is nothing in the character of the suit, or in the amount involved, to give to this-court jurisdiction to hear and determine this appeal, unless it be true as appellant asserts that a constitutional question is raised by the last paragraph of its answer..
If we may assume that the appellant’s last plea is good, let us see what was done in the case, to give this-. court jurisdiction of this appeal. The first issue raised by the pleadings was, Did there exist a valid contract-between the city and defendant for doing the work, for which the taxbills were issued? The respondent, a.s plaintiff below, contended against the validity of the contract, because the confirmatory ordinance as it is-called, of March 19, 1901, was passed by the common council after that body had been abolished by an act of the Legislature passed and approved March 13, 1901, and after it ceased to have any legal existence. Appellant’s contention was, that the action of the council was-legal and the contract was valid.
To determine this issue (which was found in favor of the appellant by the trial court) the only question for consideration was, When did the act of the Legislature abolishing the common council of the city of St. Joseph,, take effect? The validity of the act was in nowise questioned by either party to the controversy. Its construction was alone involved. There is nothing, then, in that.
The next issue raised by the pleadings, and the one upon which the trial court found in favor of the plaintiff and upon which its decree is predicated, was this: Did defendant lose the right to enforce its taxbills issued against plaintiff’s property because it had not completed the work of paving, curbing and laying sidewalks on Ashland avenue within the time originally specified? It was defendant’s contention at the trial of the ease, as it was by its answer filed, that it did not lose its right to the taxbills issued against plaintiff’s property for the reasons, first, that time was not of the essence of the contract under which the work was done, and second, because the city did not provide in time a graded street upon which the pavement could be laid, as provided by the contract it should do, and because it was prevented from prosecuting its work by the express orders of the city’s officers, and, third, because the city by ordinance duly passed and approved had extended the time for the completion of the work by the defendant, and that the work was done during that extended period.
The mere statement of the issue tendered by this plea shows upon its face that no constitutional question was involved in its determination, but only the application of general principles of law governing contracts and the excuse for their non-performance in the original specified time, and the question of the extent of the power of St. Joseph under its charter privileges. The consideration of no proposition asserted by appellant, to uphold the validity of the taxbills issued to and held by it, involves the construction of either the State or the Federal Constitution.
It is also to be noted that the averment in the last paragraph of defendant’s answer is not that any statute, act or ordinance invoked by respondent is void because in violation of the provisions of section 15 of article 2
If it could be said that the reversal by a court of a prior decision construing an act, law or ordinance, upon the faith of which prior construction a contract had been made, would operate to impair the obligation of such contract, that would not imply that a constitutional right of a defendant claiming under such a contract had been violated, or that a constitutional question was involved in the determination of his case.
The language of the State Constitution is that no law impairing the obligation of contracts can be passed by the General Assembly, while that of the Fedéral Constitution is, that no State shall pass any law impairing the obligation of contracts. The decision of a court that a certain contract is good or bad, valid or invalid, enforcible or non-enforcible against the assertion of a
As the obligations sought to be cancelled by this proceeding are less in amount than forty-five hundred dollars, and as no constitutional question was properly involved in the consideration of the contract out of which they arose, this court is wanting in jurisdiction to hear and determine the case on appeal, and the cause is ordered transferred to the Kansas City Court of Appeals for hearing and determination there.
