Schueler v. City of Kirkwood
| Decision Date | 08 June 1915 |
| Citation | 177 S.W. 760,191 Mo.App. 575 |
| Parties | MARGUERITA SCHUELER, Administratrix, Appellant, v. CITY OF KIRKWOOD, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Thomas Bond and Walter N. Davis for appellant.
(1) Unless by authority of statute, money voluntarily paid to discharge a tax cannot be recovered back because the tax was irregular or void. State ex rel. Rice v. Powell, 44 Mo. 436; 4 Dillon on Municipal Corporations (5 Ed.), secs 1617-1619; Robins v. Latham, 134 Mo. 466. (2) If moneys belonging to a particular fund have been received by the city, then a diversion of these moneys from the fund, by the city, is a breach of contract, for which the city is liable. Valleau v. Newton County, 72 Mo. 593; Valleau v. Newton Co., 81 Mo. 591; 4 Dillon on Municipal Corporations (5 Ed.), sec. 860; 28 Cyc., page 1058; Allen v. Davenport, 107 Iowa 90; 20 Am. & Eng. Ency of Law, page 1176. (3) Even though the original contract was unauthorized, yet where the work has been done and the city has accepted the work and money has been paid into a particular fund by the taxpayers, in payment of that work, the city is estopped to deny the claim. Union Depot v. St. Louis, 76 Mo. 393; Whitworth v. Webb City, 204 Mo. 579;
Robt. C. Powell for respondent.
(1) It is a general and undisputed proposition of law 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. 1 Dillon on Municipal Corporations (5 Ed.), page 448, sec. 237; Leach v. Cargill, 60 Mo. 316; State v. Butler, 178 Mo. 272; Joplin v. Leckie, 78 Mo.App. 8; Kirkwood v. Meramec Highlands Co., 94 Mo.App. 637; Sec. 6759, R. S. 1899 (); Likes v. City of Rolla, 167 S.W. 645. (2) When special powers are conferred or where a special method is prescribed for the exercise and execution of a power, this brings the exercise of such power within the provision of the maxim expressio unius, etc., and by necessary implication forbids and renders nugatory the doing of the thing specified, except in the particular way pointed out. Kolkmeyer v. City of Jefferson, 75 Mo.App. 683; City of Unionville v. Martin, 95 Mo.App. 28; Heidelberg v. St. Francois Co., 100 Mo. 74; McKissock v. Mt. Pleasant Twp., 48 Mo.App. 416; Cotter v. Kansas City, 251 Mo. 224; Likes v. City of Rolla, 167 S.W. 645. (3) The alleged contract was void. First, admitted by appellant; second, because it was improperly executed. Matthews v. City, 68 Mo. 115; Neill v. Gates, 152 Mo. 585; Ruggles v. Collier, 43 Mo. 353; Smith on Municipal Corporations, sec. 564; Cooley on Constitutional Limitations (4 Ed.), page 248; City of Unionville v. Martin, 95 Mo.App. 28. Third, at the time it purports to have been executed the city had not approved or adopted any plans or specification for the septic tanks therein contemplated and had not by ordinance provided the extent, dimensions or regulations of the construction of such tanks. Sec. 5969, R. S. 1899 (now Sec. 9384, R. S. 1909); Neill v. Gates, supra. Fourth, at the time the alleged contract purports to have been executed no estimate of the cost of building said tanks was made by the city engineer or other proper officer of said city and submitted to the board of aldermen. Sec. 5985, R. S. 1899 (now Sec. 9407, R. S. 1909). Fifth, because the ordinance, the alleged father of the contract, was void and so held by our Supreme Court. Union Trust Co. v. Pagenstecher, 221 Mo. 121, 131. Sixth, Kirkwood, as a city of the fourth class, had no power or authority, at that time, by statute or incident thereto, to build the septic tanks mentioned and described in the alleged contract. Sec. 9391, R. S. 1909, Laws 1909, page 304. (4) The alleged contract was not carried out in that only two tanks were built instead of three and proof failed to substantiate plaintiff's contention that the defendant failed and refused to provide location for the third tank, in explanation of failure to build the third tank. (5) The alleged cause of action attempted to be stated in plaintiff's petition did not accrue within five years next before the commencement of this suit.
--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 Schueler, 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 a 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 located in St. Peters' Cemetery; and one to be located at a designated point on private property. The ordinance stipulated that such aseptic tanks should be of a sufficient capacity to purify the usual dry weather flow for a population of 1500 people, so that the sewage delivered to said tanks 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, and that the tanks be built in such manner and of such material as to be satisfactory in point of strength to the city engineer; also that bids be received and contracts let for the construction of such tanks, under the ordinance, either as a whole, or for the construction of any one or more of them; that the mayor and board of aldermen cause the aseptic tanks above provided for to be constructed by contract or contracts awarded to the lowest and best bidder; after which follows the requirements touching the matter for advertisements, for bids, acceptance thereof and requiring the same to be filed with the city clerk, etc. The ordinance further provided that, upon the award of the work by the board of aldermen, the successful bidder shall enter into a contract with the city of Kirkwood to faithfully do and perform the work in accordance with the provisions and requirements of the ordinance, and that the work should be constructed under the supervision of the sewer committee of such board, which committee is required to personally inspect the work as it progresses.
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 directs 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.
Thereafter, on April 7, 1905, in pursuance of the ordinance the board of aldermen took up for consideration bids for the installation of such aseptic tanks and acted thereon as follows, as evidenced by the records of such board:
"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...
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