214 Mo. 1 | Mo. | 1908
This is an action in equity against the defendants as owners and holders of certain tax-bills, issued against the appellant’s property, some eighty-three lots in J. L. Porter’s second subdivision and addition to Kansas City, by which it is sought to have said bills canceled by the decree of the court and the apparent lien of said taxhills removed from the title to said lots.
To the defendant Construction Company had been let a contract for the construction of a sewer in sewer district number 227, which was confirmed by an ordinance of the council of Kansas City, on the 13th of May, 1901; and it proceeded with the execution of the work provided for in said contract, and the ordinance under which it was let, and claimed to have completed the same in accordance with its said contract on the 14th of September, 1901, on which date the city issued and delivered to the company the taxhills which are the subject of complaint, and thereupon the plaintiff
The grounds as set forth in the petition on which the said bills are assailed were:.
First, that the ordinance No. 16521, which provided for the construction of the sewer and the letting of the contract for that purpose, and No. 16915 confirming the contract with the defendant company, were not enacted pursuant to the charter provisions in that behalf, in that, while purporting to have received the signature and approval of the mayor of the city, they, in fact, had not been signed by the mayor, but were signed and approved by his private secretary.
Second, that the notice of the letting of the contract was not published ten successive days within the twenty days next preceding the time for opening the bids, in' that said publication was omitted from the newspapers during the period of publication on the 7th and 14th of April, which were Sundays.
Third, that the defendant company never completed the construction of said sewer prior to the issuance of the bills in question, and such completion of said work has never been done, and the particulars in which it is claimed that the contractor failed in completing the sewer are as follows: “ (a) That the contract required the construction of seventeen catch basins, and the contractor only constructed thirteen, (b) That the contract provided that where any part of the sewer was to be built on or above the surface, and any other foundation is required than embankment, such construction and sewer built thereon shall be covered with an earth embankment carried to a height of not less than one foot above the top of the sewer and the top width of such embankment shall not be less than the greatest external diameter of the sewer, and that the contractor had failed to cover with an embankment, as required, a portion of about 1,000
Fourth (a) that said contract provided that the excavation shall be done by open cut from the surface except where tunneling is expressly permitted or directed by the city engineer, and that no tunneling was in any manner permitted or directed by the city engineer; but notwithstanding, the contractor, in all parts of the work which was done in earth excavation, adopted the method of tunneling by alternating a section of tunnel with open excavation, instead of doing said work by open cut from the surface as required; and that by reason of such manner of doing said work, it was impossible to fill said trenches and tunnels in a compact manner, as required, and the same was not, in fact, done, (b) That when a trench is in rock formation, the filling required by the contract was that the same be filled with clay to a point two feet above the top of the sewer, provided that the rock from the trench might be used with an equal amount of earth; but no stones of greater dimensions than six inches should be used, and that the filling was required to rammed and tamped; and that 3,258 feet of said sewer was laid in trenches and excavated through rock, in which the contractor did not use earth or clay, as required, but, on the contrary, the rock taken from the trench was dumped into the trench as filling- material, (c) That said contract further provided that all surplus materials from the trenches should be hauled away to such places within a distance of six hundred feet as might be designated by the engineer, and deposited according to his directions; and if no such place was designated, the contractor should be bound to remove the surplus at his own risk and cost; and said contractor, in violation of said requirement, failed to remove the surplus material, but left large quantities thereof dumped upon plaintiff’s lands, situated in the
The defendant’s answer denies generally and specially all of the foregoing charges, and concludes with an allegation that, “In all things in the execution of said contract, it acted in good faith and under the direction of the city engineer or the inspector from his office; that, if in any material matter, an error has been made and the plaintiff has been damaged thereby, these defendants would surrender and cancel the said taxbills for the payment of such sum as the court may find the plaintiff should justly pay.”
Upon a trial in the circuit court, the plaintiff’s bill was dismissed and from that judgment the plaintiff has appealed to this court in due form of law. So much of the evidence as is necessary to a proper understanding of the respective contentions of counsel, will be noted in the course of the opinion.
I. The first proposition upon which these bills are attacked is that ordinance 16521 is void because it was not signed by the mayor of the city in person, but by his secretary. The testimony of Mayor Reed on this point was to the effect that the signature to this ordinance bore a close resemblance to his handwriting; that he thought without question that either Mr. Harvey, his secretary, signed the signature of the mayor to the ordinance, or he did it himself, but his best judgment was that Mr. Harvey wrote it under his immediate direction. As to the other ordinance, 16915, he was very positive that the signature was in his own handwriting. On cross-examination by counsel for the city, he was asked: “Q. You think, Mr. Reed, that if Mr. Harvey signed that other ordinance or either of these ordinances, he did it under your immediate direction? Ans. Yes, sir, and after I had examined the ordinance and told him to sign it for me.
Conceding that Mayor Reed did not affix his own signature to the ordinance 16521, but that it was signed under his immediate direction by his secretary, Mr. Harvey, would that fact alone render the ordinance void? Section 6 of article 3 of the charter of Kansas City provides that after passing the council ordinances shall be “presented to the mayor. If the mayor approve any ordinance he shall sign it; if not he shall return it to the city clerk with his objection, and the city clerk shall at the next session of the house in which it originated return it to such house.” It is also provided by section 8 of article 3, “If any ordinance shall not be returned by the mayor within five days (Sunday excepted) after it shall have been presented to him for his approval, the same shall become a law in the same manner as if he had approved and signed it, and said ordinance shall be authenticated as having become a law by a certificate signed by the city clerk indorsed thereon as follows: ‘This ordinance having remained with the mayor five days (Sunday excepted) has become a law this — day of---, 18 — , City Clerk,’ and said ordinance shall be filed, recorded and preserved in the office of the city clerk as other ordinances.”
In the construction of statutes requiring the signature, different statutes have received different constructions, some receiving' a strict construction, from the obvious intent of the Legislature, and others, a more liberal one, for a like reason. In Finnegan v. Lucy (32 N. E. 656), 157 Mass. 439; this subject received an exhaustive examination by the Supreme Court of Massachusetts in a case arising under a statute of that State forbidding the sale of liquor to a husband after “notice” by the wife, “in a writing signed by her.” In that case the notice bore the wife’s name, but was signed by another person at her request and in her presence, and it was held sufficient. In that case counsel for the defendant relied upon the rule for the construction of statutes given in public statutes of Massachusetts (1882-1887), ch. 3, sec. 3. cl. 25,
Counsel for plaintiff in this case have invoked clause 7 of section 4160, Revised Statutes 1899, which is an exact rescript of the Massachusetts statute above quoted. This section in our laws was first enacted in 1855 and was evidently adopted from the Massachusetts Revised Statutes of 1836. The charter provision plainly requires the mayor to sign all ordinances which meet his approval as an evidence of that approval. Being a member pro tanto of the law-making power, the ordinance would not be valid without his approval, unless passed over his veto. Had the charter contained the provision or a similar one to that found in section 37 of article 4 of the Constitution of this State, which ordains that, “No bill shall become
The object of the charter provision is to authorize the approval of the mayor and we find nothing in the charter to indicate that the well-settled doctrine of the common law, that what one may do by himself, he may do by another, was intended to be abrogated, and the evidence being that the signature of the mayor was affixed to this ordinance under his immediate direction and by his authority, we are unwilling to de
The authorities relied on by plaintiff, with the exception of Chapman v. Inhabitants of Limerick, 56 Maine 390, can, we think, be readily distinguished from the facts of this case. Fully recognizing the force of the reasoning of the Supreme Court of Maine in Chapman’s case, supra, we cannot bring ourselves to the same conclusion upon the facts of this case, in view of the authorities we have cited to the contrary.
There are moreover other considerations which lead us to the view we have adopted. In this ease the ordinance was in due form and had been signed by the presiding officers of both houses of the Municipal Assembly in accordance with the provision of section 6 of article 3 of the charter. It purported to be signed by the mayor in accordance with that section and was authenticated by the city clerk under the seal of the city. The ordinances of the city can be proved by the seal of the city, section 12, article 3, of the charter. To hold that the citizens of the city and the contractors doing work under these ordinances, must in every case ignore the authentication of the clerk and determine for themselves the genuiness of the mayor’s signature, would be a harsh rule. It is conceded by learned counsel for plaintiff that their contention is highly technical and formal, and we are constrained to hold that it smacks more of form than substantial justice and hence we must refuse to adopt it.
II. It is next insisted that the taxbills in suit are invalid because the advertisement for bids for the contract was not published upon two' Sundays. It is admitted that the newspaper at that time doing the city printing and the only paper in which the advertisement could lawfully be printed and published, was not published on Sunday. By section 12 of article 17 of the charter contracts of this character are required
In Thayer v. Felt, 4 Pick. 354, the Supreme Court of Massachusetts, in construing- a statutory provision that a sheriff mig-ht adjourn a sale three days held that he might adjourn the sale three days excluding Sunday, and made no distinction between a long period and one wherein the time limited is less than a week. Counsel in that case had contended that Sunday is dies non juridicus only in regard to those things which are to be transacted in court, but the court did not so confine it, but held that the sheriff might adjourn three secular days, although an intervening- Sunday might make it four days in all. The precise question presented here was passed upon in Ex parte Fiske, 72 Cal. 125. In that case the objection was made that a certain ordinance was not published according to law, and the court answered the proposition by saying, “We see no force in the objection that the ordinance was not published according to law. A provision requiring- a publication for five successive days in a daily newspaper is complied with by such publication for five successive week-days, although a Sunday intervened, on which there was no issue of the paper.” When we take into consideration that the publication of a newspaper on Sunday necessarily involves labor, and there being no evidence that the publication on Sunday of a newspaper is a work of necessity or charity, if the construction given to the ordinance contended for by counsel for the plaintiff should be adopted, the result would be that the ordinance would override the statute of the State forbidding- labor on Sunday, section 2240, Revised Statutes 1899. We think the California case was correct and that “ten successive days” in section 811 of the revised ordinances means publication on ten successive days when the paper can be published without the publisher running
III. The last contention of the plaintiff is that the work has never been completed. By section 10 of article 9 of' the charter the taxbills for the building of a sewer are not to be issued until the sewer shall have been completed. As to the failure to complete the contract for building-the sewer no complaint is made that the’ whole amount of pipe required by the ordinance was not laid on the proper lines and at the grade shown by the plans, neither is it contended that all of the flush tanks, manholes and catch basins were not built with the exception of four catch basins at the four corners of 26th and Campbell streets. The testimony disclosed that these were omitted by the express direction of the city engineer for the reason “that the street was not on grade and it would be a needless expense; when the street was graded, the city would put them in.” The cost of these catch basins was not included in the final estimate. By the terms of the contract the authority was given to the city engineer to decide all questions which might arise relative to the execution of the contract. The city engineer directed that these four useless catch basins should be omitted and that the contractor should not be paid for them. Their omission could not in any possible way affect the usefulness of the sewer, and considering the fact that the street was not graded, it would appear to have been a perfectly reasonable exercise of his authority for the engineer to dispense with these catch basins at the time the sewer was built. Certainly the landowners, whose property was to be assessed for the payment of the sewer, could have no ground of complaint if this useless expenditure was not charged up to them in the final estimate of the cost of the work.
Upon the main proposition that the sewer was not completed and for that reason the taxbills were prematurely issued, we think the testimony is against the plaintiff on this proposition. The sewer was completed as a sewer. Every foot of the pipe of the size required by the ordinance was laid and on the proper
It is true that this provision upon its face applied to actions upon the taxbill, but as the principle announced in the charter is in entire harmony with the just and equitable rule so often applied to other building contracts by this court, notably in Yeats v. Ballentine, 56 Mo. 530, to-wit, that, although the work has not been done in exact accordance with the terms of the contract, still a contractor will be permitted to •recover what the work is reasonably worth to the owner not exceeding the contract price, we see no reason why it should not apply where the landowner takes the initiative and brings a suit in equity to cancel the bill, and either tenders or offers in his bill to pay the actual value of the work done. In Quest v. Johnson, 58 Mo. App. 54, the Kansas City Court of Appeals recognized the change made in the law by the charter provision above quoted, and .for that reason distinguished the case from that of Traders’ Bank v. Payne, 31 Mo. App. 512. And the same conclusion was reached by this court in Asphalt Paving Company v. Ullman, 137 Mo. 543, and Johnson v. Duer, 115 Mo. 366. In Steffen v. Fox, 124 Mo. l. c. 635, it was said by this court: “A strict and literal compliance with ordinances, and contracts thereunder, prescribing the manner in which public street improvements shall be made, has never been required as a condition to the acceptance of the work by the city or to the validity of the taxbill, jfor the cost thereof charged against the property of individuals. The ordinance, under which the work in question was done, was general in its application and, to require literal compliance therewith, under every exceptional circumstance, would bo ■unreasonable and in instances might work 'great hardship and injustice upon a contractor or property-owner, or
We are not, however, prepared to say that if the plaintiff had proceeded in its bill upon the principle of the ordinance quoted and have tendered the full value of the work done and asked for a reduction of the bills to the amount of the cost of the embankment, but what he should have been credited with the latter sum. But the plaintiff has not proceeded upon that theory, but demands the cancellation of the taxbills entirely. It must be borne in mind that this is a bill to enjoin the collection of a tax, as these special assessments have often been ruled to be the exercise of the taxing power, and the rule in equity has often been announced, that before a court of equity will enjoin the collection of the tax on account of its being excessive, the plaintiff should tender the amount which he conceives to be actually due and just. [Johnson v. Duer, 115 Mo. l. c. 379; Arnold v. Hawkins, 95 Mo. l. c. 572; Overall v. Ruenzi, 67 Mo. 203.] Under the state of the pleadings in this case, we think the plaintiff cannot complain that the circuit court made no deduc
As to the other items of which plaintiff complained, other than the failure to cover the sewer with an embankment of dirt, we think that ■ the testimony disclosed no actual or appreciable damages of which plaintiff can complain.
Accordingly, the decree of the circuit court must be and is affirmed.