191 Mo. App. 575 | Mo. Ct. App. | 1915
This is a suit for the reasonable value of two aseptic tanks installed by plaintiff’s decedent under a contract with defendant city as parcel of its public sewer system. The amount sued for is $4700 and interest. At the conclusion of the evidence the court directed a verdict for defendant and plaintiff prosecutes the appeal.
Plaintiff is administratrix of the estate of her deceased husband, Charles Sehueler, and sues in that capacity. Defendant, a city of the fourth class, interposes a more or less technical defense, to the effect the contract for the installation of the several aseptic tanks was void; also that it was not within the power of the city.
It appears that, on the 20th day of February, 1905, the city of Kirkwood, under its ordinance number 302, duly enacted, provided for the building and construction of á system of public sewers. The ordinance set out in detail the course, routes, dimensions and materials to be employed in the construction of the sewer system and provided, too, that aseptic tanks should be used in connection therewith, as is indicated on the map of the sewer system of Kirkwood, prepared by R. M. Douglass, now on file with the city clerk of Kirkwood.
By section 4 of this ordinance it was provided substantially that there should be constructed and installed three aseptic tanks, which are by the ordinance declared to be a part of the public sewer system of the city, one of such tanks to be located on the southeast corner of Monroe and Taylor avenues; one to be lo-
Touching the matter of compensation, it is provided by the ordinance that the tanks and installation shall be paid for from a fund raised by levying a tax on all of the property within the city of Kirkwood made taxable for such purposes. The ordinance di-: rects that the contract or'-contracts shall be signed on behalf of the city of Kirkwood by the mayor, and attested by the ■ city clerk, who shall cause - the seal of ■ the city to be thereto affixed.
“The board took up for consideration the bids for aseptic tanks, and the bid of Charles Schueler being the lowest and best bid, and the same, . . . being within the estimate submitted to the board of aldermen by the city engineer, was accepted by the board, and the mayor directed to enter into contract with said Schueler for building said aseptic tanks, etc.”
Subsequently, on the first day of May, 1905, in pursuance of the resolution above quoted and the foregoing ordinance, the mayor and city clerk on behalf of the city entered into a contract with Charles Schueler for the building of the three aseptic tanks mentioned in the ordinance, and this contract with all its details duly executed appears in evidence. Among .other things, the contract so entered into between the mayor and Charles Schueler recites, in effect, that the tanks shall be built in accordance with the requirements of the ordinance' and that the city shall have a period of one year after the' completion in which to test the same before payment shall be made. The contract •provides for the building of two tanks and likewise the building of a third tank, upon the performance of certain matters by the city of Kirkwood, which were not performed, and the third was therefore not installed. No claim is made on account of the third in this suit, ■which proceeds, as before stated, for the reasonable value for installing two of the tanks only.
The two aseptic tanks mentioned in the petition were duly installed by the contractor, Charles Schueler, ■in accordance with the requirements of the ordinance and the contract, and under the supervision of the sewer committee and the city engineer, so as to be .completed on the first day of June, 1906, and ever since
In connection with the construction of the sewer system, the city passed an ordinance levying a tax of $2.50 per hundred dollars on the assessed valuation of all the property of the city of Kirkwood, in order to raise the money to pay for the same, and the collection of this tax was subsequently restrained by ■certain property holders, on the theory that it was unconstitutional. However, as much as, or more than, twenty-three thousand dollars were paid into the city treasury on account of such tax, for the purpose of ■compensating the construction of the sewer system, including the aseptic tanks, when the court declared the ordinance levying such tax to be void, for that it exceeded the constitutional limit of fifty cents per hundred dollars on the valuation of the entire taxable wealth of the city. [See Union Trust Co. v. Pagenstecher, 221 Mo. 121, 119 S. W. 1103.] Something more than three thousand dollars were also paid in on account of the tax thereafter, however, and it appears that, in all, the city collected over $26,000 of taxes with which to construct and pay for the sewer system including the aseptic tanks. More than $7000 of this tax, under the provisions of the ordinance, were levied and collected for the purpose of compensating the installation of aseptic tanks, and this amount was on hand in the city treasury at the time the board of aldermen passed the resolution approving and accepting the tanks and the work installing them. But it appears that, after the decision of the Supreme Court declaring
On what theory the court directed a verdict for defendant does not appear, but it is argued here that plaintiff may not recover for the reason the contract was void because it does not appear that'plans and specifications pertaining to the tanks were on file with the city clerk prior to the time the contract was entered into. Touching this matter, the statute (section 9384, R. S. 1909) requires that the public sewers shall be constructed of such dimensions and under such regulations as may be provided by ordinance. The ordinance sufficiently stipulated the character of the aseptic tanks to be installed, in that it required them to have a sufficient capacity to purify the usual dry weather flow for a population of 1500 people; that the sewage delivered to said tanks should be purified to the extent of consumption of ninety per cent of solids ; that the effluent discharge be not putrescible and be free from color or odor; moreover that the tanks should be built in such manner and of such material as to be satisfactory in point of strength to the city engineer. After having thus prescribed the general requisites of such tanks by ordinance, it was competent for the board of ■aldermen to commit to the city engineer the matter •concerning the material and strength thereof. Although the board of aldermen may not delegate legislative discretion to the city engineer, such a minor irregularity as conferring authority on him to approve the detail pertaining to the material and strength of the tanks is not sufficient to render the contract void in the sense essential to destroy its effect as a basis for an estoppel on the part of the city, when it appears the services thereunder have been fully performed and the city availed itself of the benefits. [See Whitworth v. Webb City, 204 Mo. 579, 103 S. W. 86.]
The mere fact that the board of aldermen accepted the tanks by resolution September 4, 1906, and again September 19, 1907, rather than by ordinance duly passed, is immaterial to plaintiff’s right to recover the reasonable value, for the contract entered into and which induced their installation in the first instance was within the power of the city and it is estopped to deny the right of compensation to that extent. Although it be true that an estoppel may not be invoked against a municipal corporation which acts entirely beyond the scope of the power conferred upon it, this doctrine does not obtain as to such matters as fall within the powers conferred. For an application of the broad principle, see Wilson v. King’s Lake Drainage etc. Dist., 257 Mo. 266, 165 S. W. 734; s. c., 176 Mo. App. 470, 158 S. W. 931; Union Depot Co. v. St. Louis, 76 Mo. 393; s. c., 8 Mo. App. 412. Therefore-, where it appears that the power has been conferred upon the municipality to enter into the contract in compliance with which the services have been rendered, the principle of estoppel obtains alike as in the case of individuals, where such contract has been fully complied with and the benefits received thereunder and
The evidence tends to prove that plaintiff’s decedent installed two of the aseptic tanks precisely in •accordance with the contract and that the third one was not installed because of the failure of defendant to provide for its location. The tanks were found sufficient in all respects and the city retained and used them. Obviously the precepts, of nátural justice suggest that it should pay the reasonable value of the tanks so constructed.
But it is argued the doctrine of estoppel may-not' be. invoked here against defendant, because it was not within the power of the city to provide by ordinance and contract thereunder for the installation of the aseptic tanks. Obviously this argument- is without merit. The statute (section 5969, R. S. 1899, now- sec-tion 9384, R. S. 1909) provides:
“The board of aldermen shall' have'power to cause a general sewer system to be established, which shall be composed of three classes of sewers-, to-wit: Public, district and private sewers. Public sewers shall be' established along the principal courses of drainage, at*586 such points, to such extent, of such dimensions and under such .regulations as may be provided by ordinance, and these may be extensions or branches of sewers already constructed, or entirely new throughout,, as may be deemed expedient.”
Although there is a statute now which expressly authorizes the installation of aseptic tanks, no such provision appears in' the section quoted, and that section is identical with section 5969, Revised Statutes 1899, which was in force at the time the contract was entered into. But though such be true, it would seem that the city possessed a clear implied power to install these aseptic tanks as parcel of its public sewer system. The question of power involved here relates to the public sewers, which the statute expressly authorizes the-•board of aldermen to construct. The ordinance provides for the aseptic tanks as parcel of such public sewer system and expressly declares such tanks to be a part of such system.
It is argued that a municipal corporation possesses and can exercise the following powers and no others: “First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers' expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation — not simply convenient, but indispensable;” and moreover that any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation and such power denied. [See Dillon, Municipal Corporations (5 Ed.), section 237.] The point made is, that, as the statute does not expressly authorize the installation of the aseptic tanks in connection with the public sewer system and the power of the municipality touching this matter is, therefore, to be sought among those implied only, it must appear that such tanks were indispensable.
The ordinance having especially provided for such tanks as a part of the public sewer system, the matter must be .viewed here as though they were indispensable thereto, in the absence of any evidence whatever on the subject, one way or the other. Especially is this true when it appears that the aseptic tanks are employed for the purpose of the purification of sewage, as well as mere receptacles therefor. It may be, for aught that appears, that the city of Kirkwood was not provided with any outlet for its sewage, affording a sufficient supply of water to carry it away — that is, such as a river or stream of considerable size. If such be the fact, then no one can doubt that aseptic tanks may be regarded as indispensable, for, otherwise, the sewage might be opened into a small stream without sufficient flow to prevent its pollution, with the resulting spread of disease and disaster, and thus annihilate the very purpose sought to be accomplished by establishing the sewers.
It is provided in the contract under which the tanks were installed that payment therefor shall be made
The judgment should be reversed and the cause remanded. It is' so ordered.