Asel v. City of Jefferson
| Decision Date | 01 April 1921 |
| Citation | 229 S.W. 1046,287 Mo. 195 |
| Parties | CHRIST H. ASEL, Appellant, v. CITY OF JEFFERSON et al |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. J. G. Slate, Judge.
Affirmed.
Pope & Lohman for appellant.
(1) The proceedings are based upon Section 9237a of the Act of 1919 Laws 1919, p. 572. This act repeals the Act of 1915. Laws 1915, p. 359. The Act of 1915 provides for only sprinkling and oiling. The Act of 1919, repealing the 1915 Act and enacting a new section in lieu thereof, known as 9237a, in addition to sprinkling and oiling, provides that streets may be repaired, surfaced and re-surfaced, while no mention of the repairing, surfacing and re-surfacing thereof appears in the title. The real subject of the legislation is not clearly expressed in its title, and does not indicate to the people in clear terms the general contents of the bill, but on the contrary, shows a design to mislead and keep from the people the real subject of the legislation. It is unconstitutional so far as it relates to repairing, surfacing and re-surfacing streets. Sec. 28, Art. 4, Mo. Constitution; State v McEniry, 269 Mo. 228; Woodwear Hardware Co. v Fischer, 269 Mo. 276; State ex rel. v. Revelle, 257 Mo. 538; Williams v. Railroad, 233 Mo. 676; State ex rel. v. Heege, 135 Mo. 112; State ex rel. v. County Court, 102 Mo. 531; State ex rel. Greene County v. Gideon, 210 S.W. 358. (2) Section 9237a provides that streets may be repaired, surfaced and re-surfaced, at the cost of the property owners, without an opportunity to protest, and is directly contrary to Sections 9254, 9255 and 9256, R. S. 1909, Laws 1911, pages 337-341, in which it is provided by Section 9254, that "repaired as here used shall not include an improvement where the entire surface of a paving is renewed, but such renewals shall be considered paving," and by which it is provided by Section 9255 that, before the council shall be authorized to pave any street, they shall declare by resolution such improvement necessary, and cause the resolution to be published in a newspaper in the city, and if no sufficient protest is made, then the council shall have power to cause the improvement to be made. Ranney v. Cape Girardeau, 185 Mo.App. 229; Sec. 9237a, Laws 1919, p. 572; Secs. 9254, 9255 and 9256, Laws 1911, pp. 337, 341; State ex rel. Major v. Amick 247 Mo. 290; State ex rel. Gregory v. Brodie, 161 Mo.App. 545. (3) Under the proceedings contemplated, there will be an equal assessment for an unequal amount of work. Improvements made under Specification No. 1 provide for the re-surfacing of the entire street, while under Specification No. 2, only holes or depressions shall be patched, all property owners paying the same amount per front foot, regardless of the improvement made in front of their property. (4) Under the present proceedings and the notice to paving contractors, the contractor is to be paid with special tax-bills, issued in favor of the contractor. There is no authority under Section 9237a, Laws 1919, authorizing tax-bills to issue to the contractor, or to pay the contractor in tax-bills. The city must do the work and issue tax-bills in its own name, and has no authority to pay the contractor with tax-bills issued to him.
Leonard M. Rice and Vance J. Higgs for respondent.
(1) The Act of 1919 does not violate Section 28 of Article 4 of the Constitution. State ex rel. v. Gordon, 261 Mo. 639; State ex rel. v. Williams, 232 Mo. 56, 75; State v. Brodnax, 228 Mo. 25, 53; State ex rel. v. Vandiver, 222 Mo. 206, 219; State ex. inf. v. Herring, 208 Mo. 708; State ex inf. v. Jockey Club, 200 Mo. 56; O'Connor v. Transit Co., 198 Mo. 622, 633; State v. Doerring, 194 Mo. 398; Elting v. Hickman, 172 Mo. 251; State v. Bixman, 162 Mo. 16; St. Louis v. Weitzel, 130 Mo. 614; State ex rel. v. Bronson, 115 Mo. 275; State v. Morgan, 112 Mo. 212; State ex rel. v. Miller, 100 Mo. 444; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller 45 Mo. 495. The purposes of the act are clearly expressed in its title. State ex rel. v. Roach, 258 Mo. 561; State ex rel. v. Assurance Co., 251 Mo. 244; State ex rel. v. Weithaupt, 231 Mo. 294; State v. Distilling Co., 236 Mo. 294; State ex rel. v. Vandiver, 222 Mo. 206; State v. Cantwell, 179 Mo. 260; State v. Bengsch, 170 Mo. 105; City of St. Louis v. Tiefel, 42 Mo. 578; State v. Mathews, 44 Mo. 523; State v. Miller, 45 Mo. 495; Hannibal v. County of Marion, 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 268. (2) The Act of 1919 is not in conflict with Section 30 of Article 2 of the Constitution. Embree v. Road Dis., 257 Mo. 611; Hager v. Reclamation Dist., 111 U.S. 701; Springfield ex rel. v. Weaver, 137 Mo. 672; Bank v. Carswell, 126 Mo. 436; Kansas City v. Huling, 87 Mo. 203; St. Louis v. Richeson, 76 Mo. 470. (3) The Act of 1919 is not in direct conflict with Section 9254, Revised Statutes 1909. A canon of construction of statutes is to get at the intent of the Legislature and to give force and effect to this intent. Curtis v. Section, 252 Mo. 245; State ex rel. v. Gmelich, 208 Mo. 152; Kenney v. McVoy, 206 Mo. 42; Grimes v. Reynolds, 184 Mo. 679. Statutes relating to the same subject must be treated prospectively and construed together as though they constituted one act. State ex inf. v. Koelen, 270 Mo. 191; State ex inf. v. Standard Oil Co., 218 Mo. 355; Sales v. Paving Co., 166 Mo. 671. If there is, however, an irreconcilable conflict between Section 9254 and this act, the act, being subsequent legislation and a special provision, must prevail. State ex rel. v. Foster, 187 Mo. 611; State v. Green, 87 Mo. 587; State v. DeBar, 58 Mo. 395. (4) The ordinances questioned do not admit of an unequal assessment of benefits. Ruecking Const. Co. v. Withnell, 269 Mo. 556; Land Co. v. Kansas City, 241 U.S. 419; Wagner v. Baltimore, 239 U.S. 217; Houch v. Drainage Dist., 239 U.S. 254; French v. Paving Co., 181 U.S. 343; Webster v. Fargo, 181 U.S. 395; Municipal Sec. Co. v. Met. St. Ry. Co., 196 S.W. 400. (5) The city, under the provisions of the Act of 1919, has authority to issue tax-bills to itself and assign the same to the contractor, or to issue such taxbills directly to the contractor. Sec. 8301, R. S. 1919.
OPINION
In Banc.
This is an equitable action wherein plaintiff (appellant herein) seeks to enjoin defendants from contracting for the sprinkling, oiling, repairing, surfacing and re-surfacing of certain streets in Jefferson City, Missouri.
Respondent having agreed to appellant's statement of the facts, we adopt the same, with some slight modifications.
On February 9, 1920, the city council of the said City of Jefferson passed an ordinance dividing the city into six sprinkling, oiling, repairing, surfacing and resurfacing districts, one of which is known as District No. 4, and established the boundaries thereof.
Plaintiff is a citizen and resident of the City of Jefferson, owning real estate in said District No. 4, fronting 48 feet on Madison Street and 98 feet on Ashley Street.
On May 7, 1920, the city council of said city passed an ordinance providing for the sprinkling, oiling, repairing, surfacing and re-surfacing of certain streets within the limits of District No. 4, by the terms of which the streets upon which plaintiff's property abuts, were proposed to be improved. The city engineer was instructed to prepare plans and file the same with the city clerk and advertisements for bids for the work were authorized. It was provided in said ordinance that the costs of sprinkling, oiling, repairing, surfacing and resurfacing should be defrayed by special tax to be assessed in favor of the City of Jefferson on the property fronting on or abutting the streets improved, in proportion that the lineal feet of each lot fronting or bordering on the improvement bears to the total number of lineal feet of all property chargeable with the tax aforesaid, in the territory embraced by the contract for which advertisement was directed to be made.
Two specifications were made by the city engineer, one for re-surfacing the streets as an entirety, and the other for patching holes and depressions. The city engineer testified that under Specification No. 1, they proposed to scarify the streets and give them surface treatment, where they were too far gone to be retreaded under Specification No. 2, and that under Specification No. 2 they proposed to fill the holes with a bituminous concrete mixed.
After the specifications were filed, due notice was given to contractors, which was duly published according to law. The Pope Construction Company, a partnership composed of Joseph Pope and F. J. Kersting, submitted the lowest bid for the work proposed to be done, 108,133 square yards, at $ 0.321 per square yard, amounting in all to $ 34,724.80, which sum the city engineer testified would not exceed sixty cents per front foot on the streets proposed to be improved.
The bid of the Pope Construction Company was accepted by the city council, by resolution adopted July 6, 1920, and the mayor of the city was authorized by the council to enter into a contract with the Pope Construction Company for the faithful performance of the contemplated work.
Before the contract was entered into the plaintiff herein gave notice to defendants of his intention to file an application for an injunction on the 13th day of July, 1920, and on said 13th day of July he filed his petition and exhibits and a temporary injunction was granted, enjoining the defendants from proceeding further in any way from entering into the contract for sprinkling, oiling, repairing, surfacing and re-surfacing the streets within District No. 4, as provided in the city ordinances.
The petition for injunction recites...
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