Allen v. Rogers

• Decision Date: 05 January 1886
• Citation: 20 Mo.App. 290
• Court: Missouri Court of Appeals
• Parties: W. R. ALLEN, Respondent, v. F. ROGERS ET AL., Appellants.

20 Mo.App. 290

W. R. ALLEN, Respondent,

v.F. ROGERS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 5, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

J. L. and F. P. BLAIR, for the appellants: The municipal assembly had no power to pass the ordinance question, since the mayor did not mention the subject matter of it in his message. St. Louis v. Withaus, 16 Mo. App. 247. The contract was improperly awarded. Addis v. Pittsburg, 85 Pa. St. 379; Bigler v. Mayor, 5 Abb. N. C. 51; Kneeland v. Milwaukee, 18 Wis. 411; Wells v. Burnham, 20 Wis. 112.

LEONARD WILCOX, for the respondent: A contract, as well as a statute or ordinance, may be void in part and not void in toto. Lœhner v. Ins. Co., 17 Mo. 247-258; S. C., 19 Mo. 628; Reichard v. Ins. Co., 31 Mo. 518; St. Louis County Court v. Griswol, 58 Mo. 199; Quinette v. St. Louis, 76 Mo. 303-404. General stipulation number four of the contract is not void, but is a necessary and lawful provision to insure the proper performance of such a work. Tipton v. Norman, 72 Mo. 384; Charter, art. 4, sects. 28, 35; Rev. Ord. 1881, 142-144; Rev. Ord., art. 3, sect. 2; Id. 72-74. The mayor's message sufficiently stated “the objects for which” the session was convened. The reference therein contained to particular sections of the charter, wherein the subjects of legislation are enumerated, made them a part of the message. Potter v. Todd, 73 Mo. 101.

THOMPSON, J., delivered the opinion of the court.

This is an action on a special tax bill, issued to the plaintiff by the city of St. Louis, as a contractor for the reconstruction of a certain portion of a street of the city, upon which the defendant's land abuts.

I. The first defence which is made to the action is that the ordinance was passed at a special session, and that the mayor in his message, submitted to the session, immediately after it was assembled, in which he designated the subjects of legislation for which the session was called, failed to designate the subject embraced in article six of the charter, which relates to the manner of assessing the costs of such improvements against adjacent property. It appears that the special session was rendered necessary by the fact that in the charter, as originally framed, by an evident oversight of its framers, no general session could be held on the first Tuesday in April, the time designated for the convening of regular sessions each year. The mayor was, therefore, obliged to call a special session, and in his message, after the assembling of the session, he set forth at length the necessity which had impelled him to call it, and said: “The circumstances surrounding the present special session of the assembly are such that in my judgment it will conduce to the general interest of the city if the control lodged in the mayor by the above provisions of the charter is at once exercised in favor of all legislation, which, under the legislative powers conferred on me by the charter, is within your jurisdiction. In other words, it seems to me expedient to make the special session in effect a general session, by at once throwing open the doors of legislation; and, as I am compelled by the language of the charter to state the object for which the special session is convened, I do accordingly state that you are convened in special session for the purpose of legislating upon all matters and subjects embraced within and specified by sections twenty-six, thirty, thirty-two, of article three, and section four of article five, and section twelve of article seven, and sections one, two, four, five, six, of article ten, and of sections ten to seventeen, nineteen, of article sixteen of the charter of St. Louis.” It thus appears that the mayor specially stated to the assembly, when thus assembled, in pursuance of his previous proclamation, among other subjects of legislation for which they had been called together, that embraced in section twenty-six, of article three, of the charter, which section, it will be remembered, contains in fourteen sub-sections the general grant of legislative power conferred upon the municipal assembly. This grant of power, among other subjects, includes the following: “To establish, open, vacate, alter, widen, extend, pave, or otherwise improve, and sprinkle all streets, avenues, sidewalks, alleys, wharves, and public grounds and squares, and provide for the payment of the costs and expenses thereof in the manner in this charter prescribed.” Article six of the charter, which relates to street improvements and street openings, merely points out the mode in which the power conferred by the language above quoted is to be exercised, and we, therefore, think that it was not necessary for the mayor in his message to direct the attention of the assembly specially to this article, especially in view of the fact that his message contains the broad statement that it seemed to him “expedient to make the special session in effect a general session, by at once throwing open the doors of legislation;” and we, therefore, think that the circuit court committed no error in refusing the instruction tendered by the defendant upon this point, and in giving an instruction to the effect that the municipal assembly had power to pass an ordinance authorizing the work, for the doing of which the tax bill sued on is issued. Our decision in the case of St. Louis v. Withaus (16 Mo. App. 247), has no bearing upon the question as here presented.

II. The second defence is that the contract under which the work was done was not let to the lowest bidder. This defence was set up in the answer, and is predicated on the fact that the following clause is found in the contract under which the work was done: “The first party shall also do such extra work in connection with his contract as the street commissioner may especially direct, and if it shall be of a kind for which no price is stated in this contract, said price shall be fixed by said commissioner, but no claim for extra work shall be allowed unless the same was done in pursuance of special orders as aforesaid, and the claim presented as soon as practicable after work is done...