174 Mo. App. 393 | Mo. Ct. App. | 1913
This is a suit in equity commenced" in the circuit court-of Jackson county on March -28, 1908, to cancel certain special tax bills issued by Kansas City, May 24, 1905, in payment of paving Troost. avenue from the south line of Thirty-eighth street to the . south line of Forty-seventh street. A trial of-the issues raised by the pleadings resulted in a judgment for plaintiff in accordance with the prayer of the petition and the cause is here on the appeal of defendant. • -
Point is made by defendant that plaintiff - is not the owner of the pro'perty against which the tax bills in question. were issued and, therefore, cannot .maintain this action, hut in the view we take of the case it will not be necessary to discuss that question and we
The city council enacted an ordinance in 1900, establishing the grade on Troost avenue between Thirty-ninth and Forty-seventh streets. Before the thoroughfare came under the jurisdiction of the city it was a county road and had a macadam roadway. The ordinance made important changes in the grade and at various places between Thirty-ninth and Forty-seventh streets the old macadam was on a grade substantially different from that established by the ordinance. Shortly before the proceedings in controversy were initiated the street railway company extended the double tracks of its Troost avenue line south to Forty-seventh street and laid them to conform to the new grade.
On November 2,1903, a petition for the paving was filed with the city engineer and on the same date the lower house of the common council passed a resolution “declaring the work of paving Troost avenue from Thirty-eighth street to Forty-seventh street to be necessary.” The resolution provided: . “The street to be paved the full width thereof, exclusive of sidewalks of legally established width and that part legally required to be paved by the street railway company operating thereon, with a genuine Trinidad Lake asphalt pavement to conform in all respects to detail “Q” of asphalt pavements, approved by the board of public works August 28, 1896, except there shall be macadam foundation of eight (8) inches in thickness, upon,such foundation shall be laid a binder course one and one-half (1%) inches in thickness and upon said binder course shall be placed an asphalt wearing surface one and one-half (1%) inches in thickness, the matrix of which shall be composed of genuine Trinidad Lake asphalt. Said pavement to be constructed
This resolution which was formally approved by the board of public works, passed the upper house November 9, 1903, went into effect on that date, and was duly published.
On November 2, 1903, an ordinance was passed in the lower house to grade Troost avenue, the full width thereof from Thirty-eighth street to Forty-seventh street “and to the established grade of the same.” The ordinance passed the upper house November 9th and was approved by the mayor November 16, 1903. The contract to do the grading under this ordinance was let July 12, 1904, the grading was completed at a cost of $8000, and was paid for in special tax bills. The grading covered the full width of the street inclusive of sidewalk spaces and brought the entire street to the established grade.
On December 21, 1903, and pursuant to the resolution we have noted, an ordinance was enacted “to pave Troost avenue from the south line of Thirty-eighth street to the south line of Forty-seventh street.” It provided that “the street shall be paved the full width thereof exclusive of all sidewalks,” that “the work and improvements shall consist of a genuine Trinidad Lake asphalt pavement to conform in all respects to ‘detail Q’ of asphalt pavement approved by the board of public works, August 28, 1896,” that “the total cost of said pavement shall not exceed the sum of two dollars per square yard,” that “the work shall be paid for in special tax bills against and upon the lands that may be charged with the cost thereof according to law,” and that “the contract . . . shall guarantee that the same shall be constructed with such materials and in such manner that the same shall en
The contract, which was confirmed by the council September 12, 1904, contained detailed specifications of the work and also by express provision made the “plans and specifications on file in the office of the city engineer relating to the work herein contemplated . . . a part of this contract and specifications.” Eef erring to “detail Q” the contract provided that “the pavement shall consist of macadam foundation already in place upon the street and sufficient new macadam so as to bring the surface when thoroug'hly compacted to within three inches of the established grade and cross section of the street.” As to the time of doing the work it was stipulated that work “be commenced within ten days from the time the contract binds and takes effect . . . and completed . . . within ninety days after “the date of confirmation;” that “in case the contractor shall fail to complete all the work herein contemplated, in accordance with the terms of these specifications, within ninety (90) days as aforesaid, the city engineer shall deduct from the aggregate amount'due according to the considerations of this contract an amount equal to ten (10) dollars
The work was not completed in the time specified in the contract but before the expiration thereof (Dec. 12, 1904) the city, on the petition of defendant, extended the time by ordinance to June 1, 1905, the cause stated in the ordinance being “sewer along street from Thirty-eighth street to Forty-seventh street. ’ ’ It does not appear that the passage of this ordinance was recommended by the board of public works. The work was completed within the time provided in the extension ordinance and according to the plans and specifications.
“Detail Q” to which reference was made in the resolution and ordinance for the paving was one of the details of a general plan for paving upon an old macadam base which was approved by the board of public works on August 28, 1896, and since that date had been on file in the office of the city engineer. It was a blue print on which was drawn general and detailed plans for the laying of a new pavement of either asphalt or brick on old macadam.’ A general cross
“Subgrade — The space over which the pavement is to be laid will be excavated to a depth of at least 3% inches helow the established grade and cross section of the street. Should there be any soft or disintegrated material in the bed thus prepared all such material will be removed and the spaces thus excavated, as well as all holes and irregularities found or excavated below the proper surface of' the subgrade, .shall be filled with broken limestone. . . . Any Irregularities which may occur in the surface must be corrected as the work progresses and all depressions filled as above specified, rewatered and rolled until the surface is finished and consolidated to the proper grade and crown. Upon the foundation thus prepared shall be placed a binder course of 1 y2 inches in thickness and upon this binder course a wearing surface of two inches in thickness composed of Trinidad Lake asphalt. ’ ’
The specifications relating to “detail Q” were as follows: “Subgrade is to be prepared as specified in '“detail N” except that the excavation and new macadam of the foundation shall be brought to within -three inches of the established cross section and grade ■of the street. Upon the subgrade thus prepared shall be placed a binder course of 1% inches in thickness and upon this binder, course a wearing surface of iy2 inches In thickness composed of Trinidad Lake asphalt.”
Counsel for plaintiff argue, in substance, that the resolution, in legal effect, at least, required that the proposed work of paving the street to its full width exclusive of sidewalks according to the specifications-of “detail Q“ included the grading necessary to bring-the street to the established grade and that since such grading was done'under a separate proceeding and at. additional cost to the property owners, the tax bills iit question must be held void under the rule that the-work specified in the resolution must be the work contracted to be done or the tax bills will be void. [Trenton v. Collier, 68 Mo. App. 483; City of Boonville v. Stephens, 95 S. W. 314.] The charter of Kansas City in force at the time of the. passage of the resolution, in question (sec. 2, art. IX, Charter & Revised Ordinances, 1898) • provided “that whenever the common council shall deem it necessary to pave . . . any street . . . and payment for such work and improvement is to be made in special tax bills, the common council shall, by resolution, declare such work or improvement to be necessary, stating the kind of paving material proposed to be used, and such resolution or the substance thereof, shall be published for- ten
The passage and publication of such preliminary resolution is jurisdictional. [City v. Bacon, 144 Mo. App. 477; Coulter v. Construction Co., 131 Mo. App. 230; Paving Co. v. O’Brien, 128 Mo. App. 267; Kirksville v. Coleman, 103 Mo. App. 215.]
The resolution is for the prime benefit of the owners whose property is to be taxed to pay for the improvement and its publication calls on such property owner to decide whether the work shall go on with his consent or whether he shall file a remonstrance. The resolution affords him an opportunity to be heard on the subject of the necessity and wisdom of the proposed improvement and, therefore, it is indispensable that he should have accurate information. Should the subsequent ordinance and contract for the improvement deviate materially from the resolution the whole proceeding will be void for the reason that the property owners have been deprived of the right the law intends they should have to be informed at the start of the true nature of the improvement for which they are to pay. Should we find that the resolution under consideration told the property owners, in effect, that the work of paving the street included all necessary grading and that the entire work would be done at a' maximum cost of ttvo dollars per square yard, we would hold it would not support the subsequent proceedings ending in a contract which relieved the contractor of the burden of grading.
Turning to the resolution in hand we find it does not speak of grading but is confined to the subject of paving. Certainly a property owner reading it could not reasonably infer that the work of bringing the street to the established grade was intended to be a part of the improvement proposed by the resolution and if he had gone to the office of the city engineer and examined the plans and specifications to which he was referred, he would have discovered that they called for no grading except such subgrading as might be required to prepare a street already brought to the established grade for a new pavement to replace an old one; Further he would have discovered upon inquiry that a separate grading ordinance had been passed and would have known that the bidders for the paving would be asked to bid on the basis of a graded street. "We do not sanction the argument that there was a vital variance between the resolution, ordinance and contract. They all relate to the same subject-matter, i. e., the paving of a street already ‘brought to the established grade. The , property owners could not have been misled and having been given a fair opportunity to object to the proposed improvement which after-wards was made, pursuant to the terms of the resolu
' The ordinance for the improvement, as stated, was enacted December 21, 19Ó3, and, after the passage of the grading ordinance, instead of having the effect of repealing the latter ordinance, was consistent with it and clearly advised property owners and contractors that the only work to be let was the paving of the street and that no other grading would be required of the contractor than the subgrading specified in “detail Q.” Inasmuch as the old macadam did not cover the full width of the proposed pavement, the work to be done by the paving contractor as outlined in the ordinance and specifications necessarily included the work of subgrading the unmacadamized part of the proposed roadway to a depth admitting of the laying of new macadam to piece out the old macadam bed but It was not intended that the paving contractor' should do any other grading at the sides of the old pavement. The grading required to bring those parts of the street to the established grade was to be done by the city in discharge of its implied duty to furnish a graded street to the paving contractor and had already been provided for in the grading ordinance. The ordinances for grading and paving being consistent with each other were valid expressions of the legislative authority of the city and since the property owners were fully advised in the manner provided by law of the true nature and scope of the proposed improvements, we perceive no ground upon which a just attack on the validity of the resolution and ordinance for the paving may be based.
It is argued that the contract for paving was not advertised and let within a proper time after the enactment of the ordinance. The first advertisement for bids was made about three months after the passage of the ordinance, but the grading had not been done and
The Supreme Court in Jaicks v. Middlesex Investment Co., 201 Mo. 111, holds that the failure of an ordinance to fix the time for the completion of the work
Where it appears that after the passage of the ordinance the proposed improvement was abandoned the rule requiring the city to proceed in the usual course of such matters and without unreasonable delay would prevent the revivication of an abandoned proceeding, but so long as the delay in letting the contract is due to excusing causes and not to a purpose to abandon the improvement, no good reason can be given for holding the ordinance impaired by such delays which could not discriminate among bidders or give opportunity for fraud or favoritism. The evidence discloses not only that the street was not brought to the established grade until about the time of the final advertisement for bids but that a sewer was being constructed in it. These were sufficient reasons for postponing the letting of the contract and, doubtless, was the reason for the refusal of defendant to bid in response to the first advertisement.. There was no unusual or unnecessary delay in letting the contract and the proceedings to that point were valid and operative.
Another point made by plaintiff against the tax bills that the proceedings were invalid because of the failure of the city engineer to file a preliminary estimate of the cost of the improvement is well met by the answer that the charter and ordinances of Kansas City in force at the time did not make the filing of such estimate a condition precedent to the enactment of the ordinance for the improvement or the' letting of the contract. [Youmans v. Everett, 173 Mo. App. 671.]
There is no merit in the contention of plaintiff that the work was not completed in proper time. As
The council within the life of the contract extended the time by ordinance to June 1, 1905. This declaration of the legislative body of the city that good cause existed for the extension must be given weight and should not be declared untrue except upon cleai" and convincing proof to the contrary. Turning to the record we find abundant justification for the action of the council in evidence of unfavorable weather and the prosecution of other work on the street. Under the charter and ordinances the council had authority to enact the extending ordinance in the absence of a recommendation from the board of public works.
The position of plaintiff is well answered in the following quotation from the opinion in Construction Company v. Coal Co., 205 Mo. l. c. 74:
“It is next insisted that the acceptance of the work by the city engineer was void, for different reasons. First, that the pavement was not of such quality that it would endure for five years from and after the completion of the work without the need of any repairs. Section 5 of the ordinance under which this work was done provides that “the work herein authorized shall be executed with a guarantee that the said pavement shall be constructed with such materials and in such a manner that the same shall endure without the need of any repairs for a period of five years after the completion and acceptance of the same without further compensation than that provided for in the contract for the first cost of such work, and for which the said special tax bills are issued.” And the contract contains a similar provision. The evidence quite clearly showed that there were holes in the paving, both before and after it was finished; it also showed that the contractor relaid and repaired two or' three of the blocks after the payment was put down. A guaranty of this character has been upheld by this court in Asphalt Paving Company v. Ullman, 137 Mo. 543; Seaboard National Bank v. Woesten, 176 Mo. l. c. 59, and cases there cited. The guaranty being good it does not mean that the pavement shall endure without any need of repairs for five, years, but that it shall endure for .that period without further compen
If defendant breached its guaranty to keep the pavement in good repair it became liable on its bond to respond in damages but such breach could not affect the validity of the tax hills issued in payment of the cost of the pavement.
We have answered the principal attacks on the tax hills. In our opinion they are valid and the court erred in -holding otherwise. The judgment is reversed.