Allen v. Labsap

• Decision Date: 24 May 1905
• Citation: 188 Mo. 692,87 S.W. 926
• Parties: ALLEN v. LABSAP et al.
• Court: Missouri Supreme Court

87 S.W. 926

188 Mo. 692.

ALLEN v. LABSAP et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — TIME OF COMPLETION — OBLIGATION TO REPAIR — RESTRICTION OF COMPETITION — CONSTITUTIONALITY OF ORDINANCE.

1. Where no city ordinance requires improvement work to be completed within a definite time, a provision of a contract for such work specifying a time for its completion, followed by another provision imposing a penalty in case the work is not completed within the time specified, does not make the completion of the work within the specified time a condition of the validity of tax bills issued for the work, so long as it is completed within a reasonable time.

2. The lower court's finding of facts cannot, if sustained by the evidence, be disturbed upon appeal.

3. A municipal ordinance requiring all contracts for the doing of public work involving the use of dressed stone to require the work of dressing the stone to be done within the territorial limits of the state, is not of itself, in the absence of a restriction in fact of the right of competition, or an increase in the price of the improvements, violative of article 6, § 27, of the St. Louis Scheme and Charter, requiring the board of improvements to let out improvement work by contract to the lowest responsible bidder.

4. Nor is it violative of Const. art. 2, § 4, declaring all persons to be entitled to liberty and the enjoyment of the gains of their own industry.

5. Nor does it violate Const. art. 2, § 30, and Const. U. S. Amend. 14, § 1, guarantying due process of law and equal protection of the laws.

6. Nor does it violate Const. U. S. art. 4, § 2, entitling the citizens of each state to all the privileges and immunities of the citizens of the several states.

7. Nor does it violate the interstate commerce clause of the federal Constitution.

8. A provision of a street paving contract, the cost of which is assessed against abutting owners, in effect requiring the contractor to keep the street in repair for a period of 12 months, is a mere guaranty of good work, and is not violative of St. Louis Scheme & Charter, art. 6, § 18, requiring repairs of streets and highways to be paid out of the general revenue of the city.

9. A question not raised in the court below need not be considered on appeal.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by William R. Allen against Nettie Labsap and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Sigmund Labsap, for appellants. David Goldsmith, for respondent.

LAMM, J.

This is a suit to enforce the lien of a tax bill, levying the cost of certain street improvements against abutting properties, and, inter alia, against a lot, the property of appellant Nettie Labsap, fronting 28 feet 8 inches on Easton avenue, between Marcus avenue and Kingshighway Boulevard, in St. Louis. The bill was issued to one G. Eyerman, Jr., as original contractor, who assigned to respondent. Tried to the court without a jury, judgment was entered for plaintiff, from which defendants appealed. The pertinent facts will appear in the opinion.

1. It is contended by appellants that the street improvement was not completed by the contractor within the time limit, and hence the tax bill was void. No special or general ordinance of the city of St. Louis was put in evidence making time of the essence of the transaction, or requiring the work to be commenced by a day certain or completed by a given date. The matter relied upon as a defense is contained alone in the contract entered into between the city of St. Louis and the contractor in clauses 10 and 11, as follows:

"(10) The first party shall not be entitled to any claim for damages for any hindrance or delay, from any cause, whatever, in the progress of the work, or any portion thereof; but such hindrance may entitle said first party to an extension of the time for completing this contract sufficient to compensate for the detention, the same to be determined by the Street Commissioner, provided he shall have immediate notice in writing of the cause of detention.

"(11) The work embraced in this contract shall be begun within one week after written notice so to do shall have been given to the contractor by the Street Commissioner, and carried on regularly and uninterruptedly thereafter (unless the said Commissioner shall otherwise, in writing, specially direct), with such a force as to insure its full completion within two and one-half months thereafter—the time of beginning, rate of progress and time of completion being essential conditions of this contract. And if the contractor shall fail to complete the work by the time above specified, the sum of five dollars per day for the first ten days, and the sum of ten dollars per day for each and every day thereafter until such completion, shall be deducted from the moneys payable under this contract."

Clause 11 (differing only in time limit) is precisely the contract provision before this court in Heman v. Gilliam, 171 Mo., loc. cit. 265, 71 S. W. 163 et seq. In that case, as in this, there was no ordinance provision regulating the time; in that case, as in this, there was a contract provision that, if the contractor failed to complete the work within a specified time, deductions should be made from moneys payable under the contract; and in that case, as in this, it was insisted that a violation of the contract time limit was fatal to the tax bills. But we held in the Heman Case that such contract, when all its provisions were construed together, in the absence of a time provision in an ordinance, contemplated that the work might not be completed within the time stated, and made provisions for such contingency, and, upon its happening, for an extension of time upon terms. That an ordinance, prescribing a definite and mandatory time limit under which work is competed for and bid off, stands on a different footing than a contract made under the ordinance, is apparent from our decisions, and is agreeable to the common sense of the thing. So that, in the absence of a city ordinance requiring the work to be completed within a definite time, and in the presence, as here, of a contract provision specifying a definite time for the completion of the work, followed by other provisions, to which effect must be given, providing for deductions from the money due the contractor on a failure to complete the work within that time, the views of this court, on full consideration, have come to be that, if the work is completed within a reasonable time, the tax bills are not void. Heman v. Gilliam, supra; Schibel v. Merrill, 83 S. W. 1069 (not yet officially reported); Barber Asphalt Paving Co. v. Munn, 83 S. W. 1062 (not yet officially reported); Neill v. Gates, 152 Mo., loc. cit. 592, 54 S. W. 460. No sufficient reason is suggested why the reasoning of these cases is unsound, or why the doctrine should not be regarded as settled under the rule of stare decisis, and we accordingly hold the question no longer an open one in this state. In the Schibel Case, supra, the tax bill was canceled on the theory that the contractor, in the absence of an ordinance prescribing a definite time limit, and under such a contract provision, had a reasonable time, but that the time actually used was unreasonable, and hence the bill was void; but in the case at bar there is no contention made that the time used was unreasonable, and, if such contention were insisted upon, it is apparent from the record before us that the delay in completing the work arose from the acts of the city government in compelling the work of reconstructing the street to cease for a fortnight in order to lay water mains and change street railway tracks. In passing the point now in hand, it is well enough to say that in the issues presented below and in this court no contention is made that there should be a deduction from the tax bill because of any delay, but appellants stand squarely on the proposition the tax bill is void, not that it shall be shaved down.

2. The contract contained the following clause: "Dressing of rock, granite or stone within the territorial limits of the State of Missouri—all the work of dressing rock or stone required by this contract shall be done within the territorial limits of the State of Missouri as provided by ordinance No. 18960 approved April 7th, 1897. Said ordinance is hereby made a part of this contract and must be observed in all of its provisions." ...