Gratz v. City of Kirkwood

• Decision Date: 02 April 1912
• Parties: LAURA C. GRATZ, Respondent, v. CITY OF KIRKWOOD and ROBERT WYCOFF, Defendants; ROBERT WYCOFF, Appellant
• Court: Missouri Court of Appeals

145 S.W. 870

165 Mo.App. 196

LAURA C. GRATZ, Respondent, v. CITY OF KIRKWOOD and ROBERT WYCOFF, Defendants; ROBERT WYCOFF, Appellant

Court of Appeals of Missouri, St. Louis

April 2, 1912

[Copyrighted Material Omitted]

February 6, 1912, Argued and Submitted

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--This is a suit in equity in which by the petition it is charged that certain taxbills issued against the property of plaintiff for the construction of a sewer had been unlawfully issued by the city of Kirkwood in favor of one Robert Wycoff the contractor who had done the work, and of which bills he is the holder. There are several grounds on which the validity of the taxbills is attacked, among others that the property against which the bills were issued is not lawfully within the corporate limits of the city of Kirkwood and hence not subject to assessment for payment of this sewer. The trial court found against plaintiff as to this, and she not appealing, it is out of the case. The grounds of attack on the taxbills which the trial court sustained, are numbered in the petition as "second" and "third." The second ground is that the contract entered into between the city and defendant Wycoff, exceeded the estimate of the engineer and is therefore void. The third ground is that the final estimate computing the whole cost of building the system of sewers in the sewer district extension and apportioning this against the lots and parcels of ground described by plaintiff as her property, was not made by the city engineer or other officer having charge of the work as required by section 5970, Revised Statutes 1899 (now section 9385, Revised Statutes 1909). Plaintiff, charging that the taxbills constitute a cloud upon her title to the real estate, prays that they be ordered to be delivered up to her by the defendant Wycoff for cancellation, and that the city of Kirkwood and its officers be ordered to cancel them upon the records of the city. There is a further prayer that the ordinance which purports to include within the limits of the city of Kirkwood the property of plaintiff and other similar property, be held unreasonable, illegal and unauthorized. There is also the usual prayer for general relief.

It is sufficient to say of the answers of the defendants, that they deny that the taxbills are invalid on any of the grounds alleged, and also plead that plaintiff is estopped by her acts from contesting the bills.

The replies were general denials to these answers.

The cause coming on for hearing before the court and the evidence being heard, the court found for the defendants as to the validity of the ordinance extending the city limits, and held that the property of plaintiff was subject to taxation for city improvements, but found for plaintiff on the grounds designated in her petition and above referred to as second and third, and holding them void, entered up a decree cancelling the taxbills. From this decree the defendant Wycoff has duly appealed to this court. In support of its conclusion on the objection designated as second, the court found that the price set forth in the contract entered into between the defendant city of Kirkwood and the defendant Wycoff for the building of the sewers in the sewer district "exceeded the estimate of the engineer for the building of said sewers, and is therefore void," that the board of aldermen had no jurisdiction to enter into the contract and that the taxbills levied and issued against the plaintiff's property "were and are for that reason null and void." In support of its conclusions on the third objection the trial court found that the official estimate or computation, computing the whole cost of building the system of sewers in the district and apportioning the same against the lots and parcels of ground situated in the district, was not made by the city engineer or other officer having charge of the work, as required by section 5970, Revised Statutes 1899 (section 9385, Revised Statutes 1909), and that on that ground also the taxbills levied and issued against plaintiff's property for the proportionate cost of building the sewers were null and void.

We summarize the evidence. Plaintiff offered and read in evidence the ordinance establishing the sewer district. This ordinance provided that the cost of the construction of the sewers should be borne by the owners of property in the district; that the construction of the sewers should be awarded by contract under the provisions of the ordinance and other ordinances of the city. It was also in evidence that following the adoption of the ordinance an estimate of the cost of the proposed work was made by the city engineer and submitted to the board of aldermen. This estimate (which we shall refer to as the preliminary estimate) giving items, totals $ 4812.20 as the estimated cost of the work.

The defendant Wycoff submitted his bid for doing the work, which he proposed to do at a total cost of $ 4226.60. He itemized his proposed work, following the preliminary estimate as to quantities, the price of some of the items being as in that estimate, most of them below it, exceeding it only as to one item, namely "Class C," which was estimated at five dollars per cubic yard, while his bid on it was six dollars, a difference of ten dollars on this one item over the price affixed to it in the preliminary estimate. There was no total or addition of the whole carried out on the bid, but the board of aldermen of the city, in accepting it, as appears by its minutes, referred to it as "bid of Robert Wycoff, $ 4226.60." Accordingly a contract was entered into with Wycoff at the figures mentioned in his bid, the total contract price being $ 4226.60. It was also in evidence for plaintiff, "that by a resolution or order of the board of aldermen entered in its minutes the mayor was authorized to employ some competent man to superintend the construction of the sewers and one Charles E. Young was so employed by the mayor; that defendant Wycoff fully performed his part of said contract and completed the work therein contemplated in full compliance with said contract; " that when the work was completed, a computation of its quantities and cost was made by said Young and submitted to the mayor and by him submitted to the board, upon which computation the taxbills as issued were based. By this final measurement the total cost of the sewer was $ 3451.88.

Going into particulars as to quantities and price, the quantity of excavation under "Class A," which included ordinary clays, earth and the like, as shown by the final and actual measurement, exceeded the estimate and the bid by 1183.44 cubic yards, and the actual cost exceeded the estimated cost for this by $ 324.06; the amount of excavation actually done under "Class B," which included boulders, detached rock, etc., fell short of the estimate by 1785 cubic yards and the actual cost fell short of the estimate and bid by $ 1627.50; the actual amount of excavation under "Class C," which included large stones, solid rock excavation and the like, exceeded the estimate by thirty-seven and forty hundredths cubic yards and in cost by $ 234.40; the actual cost of the eight inch sewer pipe was $ 225.28 below the estimate and thirteen dollars and sixty-eight cents below the bid. The man-hole was carried through all the exhibits at the same figure, namely, fifty dollars; eight lamp post holes estimated at fifteen dollars, amounting to one hundred and twenty dollars, were bid on at four dollars, a total of thirty-two dollars, and in point of fact it turned out that only seven holes were required, which at four dollars amounted to twenty-eight dollars, a difference of ninety-two dollars below the estimate and four dollars below the bid and contract. Twelve feet of eight inch iron pipe was the same in all three exhibits, eighteen dollars, but instead of there being one cubic yard of concrete estimated at eight dollars, bid on at seven dollars, the number of yards of concrete was found to be two, the cost fourteen dollars, an excess of six dollars over the estimate and of seven dollars over the bid. To summarize, the bid was $ 585.60 under the preliminary estimate, while the amount allowed was $ 774.72 under the bid, and $ 1360.32 under the preliminary estimate.

The ordinance levying the special tax recites "that the city's representative in charge of said work has reported to the board of aldermen" and computed the cost of the work and apportioned the same against the lots or pieces of ground and has reported the same to the board.

It was further admitted that Mr. Young was a competent engineer, but was not a resident of the city of Kirkwood and was not appointed as an officer, and did not act or certify to his work as an officer of the city.

It was also in evidence that the special tax involved in this case was then levied by ordinance in accordance with the foregoing and special taxbills issued, the three involved in this suit being issued against plaintiff's property and were in the ordinary form of special taxbills.

The above is substantially the evidence for plaintiff.

On the part of the defendant Wycoff, Mr. Ochterbeck testified that he had been mayor of the city of Kirkwood from April, 1906 to April, 1908, filling that position while the sewers under inquiry were being built in the sewer district; knew Mr. Young, who is an engineer, and, the city having no regular city engineer at the time, witness, as mayor, had engaged Mr. Young to superintend the construction of the sewer. The board of aldermen had authorized him, as mayor, to engage an engineer. When the work was completed on this sewer, Mr. Young consulted with him about...