Allen v. Labsap

• Court: Missouri Supreme Court
• Writing for the Court: LAMM, J.
• Citation: Allen v. Labsap, 188 Mo. 692, 87 S.W. 926 (Mo. 1905)
• Decision Date: 24 May 1905
• Parties: ALLEN v. LABSAP et al., Appellants

87 S.W. 926

188 Mo. 692

ALLEN v. LABSAP et al., Appellants

Supreme Court of Missouri, First Division

May 24, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Affirmed.

Sigmund Labsap for appellants.

(1) The failure to complete the work in the time specified in the contract constitutes a complete defense and makes the taxbill void. Time is of the essence of this contract. McQuiddy v. Brannock, 70 Mo.App. 535; Springfield v Davis, 80 Mo.App. 594; Neil v. Gates, 152 Mo 585; Barber Asphalt Co. v. Ridge, 169 Mo. 376. The alleged causes of the delay as recited in the reply and shown in the evidence are not covered by the contract. The street commissioner cannot delegate his authority to compensate the contractor for the detention by an extension of time. This is a function which requires judgment and discretion, and which he must perform himself. Mechem, Law of Offices and Officers, sec. 567; Charter, art. 4, sec. 35. (2) In compelling the contractor to keep the street in repair for a requisite time after the completion of the work, it is attempted to burden the property of defendants in the form of a special tax for reconstruction, which is in violation of section 18, article 6, of the charter. (3) The ordinance and provision in the contract restricting the dressing of stone, etc., within the territorial limits of Missouri is void and the taxbill issued for the work invalid. Charter, art. 6, sec. 27; Dillon, Munic. Corp., sec. 388; State v. Julow, 129 Mo. 163; State v. Loomis, 115 Mo. 319; In re House Bill No. 203, 21 Colo. 27; People ex rel. v. Coler, 59 N.E. 776; People ex rel. v. Coler, 59 N.E. 716; Constitution, sec. 4, art. 2, and sec. 30, art. 2; 14th Amendment, sec. 1 and sec. 2, art. 4, U.S. Constitution. This clause is also in violation of the interstate commerce clause, U.S. Constitution, which reserves to Congress alone the right to regulate commerce between the States.

David Goldsmith for respondent.

(1) No time for completion was provided by the ordinance under which the work was done, but the contract for the work required the work to be completed within two and one-half months after it was commenced, and the work was actually completed two weeks, or less, after the time thus designated. A distinction exists where the provision for time of completion is by contract only. Carlin v. Cavender, 56 Mo. 286; Heman v. Gilliam, 171 Mo. 258; Const. Co. v. Loevy, 78 S.W. 613. (2) If the evidence for the defendants were considered alone, it might afford basis for a claim that the provision in reference to dressed rock served to increase the taxbill against the property of the defendants to the extent of fifty or sixty cents. Such an effect would not, under any circumstances, warrant a holding that the entire taxbill was vitiated. Atkin v. Kansas, 191 U.S. 207.

LAMM J. Marshall, J., not sitting.

OPINION

LAMM, J.

This is a suit to enforce the lien of a taxbill, levying the cost of certain street improvements against abutting properties, and, inter alia, against a lot, the property of appellant Nettie Labsap, fronting twenty-eight feet and eight inches on Easton avenue, between Marcus avenue and Kings Highway 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.

I. It is contended by appellants that the street improvement was not completed by the contractor within the time limit, hence the taxbill 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. 258, 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 taxbills. 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 taxbills are not void. [Heman v. Gilliam, supra; Schibel v. Merrill, 185 Mo. 534, 83 S.W. 1069; Barber Asphalt Pav. Co. v. Munn, 185 Mo. 552, 83 S.W. 1062; Neill v. Gates, 152 Mo. 585, 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 taxbill was cancelled 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 taxbill because of any delay, but appellants stand squarely on the proposition that the taxbill is void, not that it should be shaved down.

II. 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 7, 1897. Said ordinance is hereby made a part of this contract and must be observed in all of its provisions."

The ordinance referred to is as follows:

"An ordinance to regulate the doing of public work in the city of St. Louis.

"Be it ordained by the Municipal Assembly of the city of St. Louis as follows:

"Sec. 1. All ordinances and contracts authorizing the doing of public work in the city of St. Louis which involves the use of dressed rock, granite or stone shall contain a provision that the work of dressing such rock, granite or stone, shall be done within the territorial limits of the State of Missouri."

Appellants insist that the ordinance included in the foregoing contract provision rendered the taxbill void because (1) it is in violation of section 27 of article 6 of the Scheme and Charter, which provides that the board of public improvements shall "let out said work by contract to the lowest responsible bidder . . .;" (2) because it is violative of section 4 of article 2 of the State Constitution providing, "That all persons have the natural right to life, liberty...