Barber Asphalt-Pav. Co. v. Hezel

• Decision Date: 13 March 1900
• Citation: 155 Mo. 391,56 S.W. 449
• Parties: BARBER ASPHALT-PAV. CO. v. HEZEL et al.
• Court: Missouri Supreme Court

56 S.W. 449

155 Mo. 391

BARBER ASPHALT-PAV. CO. v. HEZEL et al.

Supreme Court of Missouri.

March 13, 1900.

MUNICIPAL CORPORATIONS — PAVING — REPAIRS — ASSESSMENTS — VALIDITY.

1. St. Louis Charter, art. 6, § 18, provides that the repairs of all streets shall be paid by the city, and that the cost of paving streets shall be charged to the adjoining property owner. Held, that an ordinance providing for the reconstructing and maintenance of a street for a period of years under one contract was not erroneous, as placing upon the property owners the expense of repairing the streets; the word "maintenance" being equivalent to the word "repairs."

2. Under St. Louis Charter, art. 6, § 27, providing that public works or repairs shall be let by contract to the lowest responsible bidder, a contract for the repairs of a street is a distinct public work, and must be entered into like any other public work.

3. Under a charter providing that repairs shall be paid by the city, and the cost of paving streets charged to the adjoining property owners, a contract providing for the reconstruction and maintenance of a street, and that the adjoining property owners shall pay a portion of the cost of repairs of the improvement for a long period of time, is not invalid.

4. Under a city charter providing that, in constructing or repairing public work, the material to be used must be specified, with an estimate of the cost, an ordinance specifying the material to be used in paving a street, but not providing for the character of the materials to be used in repairing it, is not invalid.

Gantt, C. J., and Burgess, J., dissenting.

In banc. Case certified from St. Louis court of appeals.

Suit by the Barber Asphalt-Paving Company against Morris Hezel, and others, to recover the amount of a special tax bill. Judgment in favor of defendants, and on appeal of the plaintiff, transferred to the St. Louis court of appeals (39 S. W. 781), where the judgment was reversed. Certified to the supreme court for final determination. Reversed.

W. C. Scarritt and Adiel Sherwood, for appellant. Hiram J. Grover and Dennis Devoy, for respondents.

BRACE, J.

This is an action to recover the amount of a special tax bill assessed by the proper authorities of the city of St. Louis against the property of defendants abutting on Jefferson avenue, in favor of the plaintiff, for work done in reconstructing and paving said avenue. Upon a trial in the circuit court, judgment was rendered for the defendants, and the plaintiff appealed to this court. Upon a motion to dismiss the appeal for want of jurisdiction, the case was transferred to the St. Louis court of appeals (138 Mo. 228, 39 S. W. 781), where the judgment of the circuit court was reversed, in pursuance of the opinion of a majority of that court (76 Mo. App. 135, 1 Mo. App. Rep'r, 504) delivered on the 21st of June, 1898; Biggs, J., sitting therein, dissenting, and, in his dissenting opinion, deeming the decision rendered therein contrary to the previous decision of this court in Verdin v. City of St. Louis, 131 Mo. 26, 33 S. W. 480, 36 S. W. 52. The case was certified here for final determination.

This is one of several suits pending on like tax bills. The litigation in regard to these tax bills was commenced in the St. Louis city circuit court, by the Verdin Case, in July, 1893. That case was a proceeding in equity against the city of St. Louis, the board of public improvements, and the plaintiff in this case, to restrain the issuance and collection of these tax bills. The case went off in the circuit court upon a demurrer by the city to the bill, which was sustained by the circuit court; and the plaintiff appealed from the judgment on the demurrer to this court, where the judgment of the circuit court was reversed, and the cause remanded to the circuit court; and, upon the dismissal thereof in that court, suits were instituted upon the tax bills. The Verdin Case was decided at the October term, 1895. The opinion of the majority of the court was delivered by Burgess, J., who, in the third paragraph thereof, said:

"(3) It is contended that section 542 of the Revised Ordinances of the city is repugnant to the letter and spirit of the provisions of the charter of the city of St. Louis, and therefore null and void and of no effect, and that the action of the city in letting the contract for reconstruction and maintenance together is obnoxious and unlawful. Said section is as follows: `Sec. 542. Whenever a street is to be improved, either on the motion of the board of public improvements or on petition of the adjoining property owners, the board of public improvements may submit to the municipal assembly a bill for letting in one contract the work of constructing or reconstructing such street and of maintaining it in good condition for a term of years; and after such bill has become a law the board of public improvements shall advertise for proposals including the construction or reconstruction and maintenance under the same regulations as are provided for the improvement of streets; but the advertisement shall, in addition to what is prescribed for other street improvements, state the term during which the street is to be maintained in good condition and the amount of bond which the contractor will be required to furnish to secure the execution of the contract for maintenance, in addition to the bond which under existing regulations has to be furnished for all contracts for street improvements. The letting of the work, the awarding of the contract and the approval of the contract and of the bonds shall be carried out as now provided for other street improvements. In canvassing the proposals, the lowest bid shall be ascertained by taking the aggregate amount of the cost of the construction, as the case may be, and the total cost of maintenance, for the term of years designated by the ordinance. The special tax bills against the adjoining property for the work of construction shall be issued whenever the work has been completed and accepted. The contract shall provide that the obligation of the contractor to maintain the streets in good condition shall commence one year after the completion and acceptance of the work of construction or reconstruction, and the contract price shall be paid semiannually out of the city treasury, on the certificate of the street commissioner that the work has been performed in accordance with the contract and specifications. The bond to be given to insure the maintenance of streets during the term agreed upon shall be $15 for every square (of one hundred superficial feet) of the street embraced in the contract. The contract shall provide that the contractor shall, whenever notified by the street commissioner that any repairs are required, at once make such repairs at his own expense, and if they are not made within proper time the street commissioner shall have power to cause such repairs to be made, and the cost thereof shall be paid out of the fund provided for the payment of contracts for street maintenance, and the amount shall be deducted from any money then due under the contract, or which may thereafter become due. And it shall further provide, that if at any time during the term for which the contract for the maintenance of the streets is in force the pavement of such street or any part thereof has deteriorated to such an extent as to require, in the opinion of the board of public improvements, reconstruction, the street commissioner may, with the approval of the board of public improvements and of the mayor, notify the contractor that reconstruction is necessary, and that the contractor shall, within three months after receiving such notice, reconstruct the whole or such part of the pavement with the same kind of material as heretofore applied, or with some other material approved by the board of public improvements. And the contract shall also provide that if the contractor fails to reconstruct the street within three months after having been notified, the board of public improvements may, with the approval of the mayor, cancel the contract and relet the work of reconstructing the pavement, and that the cost of such reconstruction shall be paid by the city and the amount collected by suit from the contractor or his sureties, not to exceed $15 per square of pavement, included in the contract. And the contract shall provide that whenever any repairs of the street are made necessary from the construction of sewers, the laying of pipes or telegraph wires or from any other disturbance of the pavement by parties acting under permits issued by the city, the contractor for the maintenance of the street shall, on notification from the street commissioner, immediately make all necessary repairs in conformity with the specification for this class of work. The cost of all such repairs, exclusive of trenching and back-filling, which shall be done by the parties who hold the permits and in a manner as now required by existing ordinances, shall be paid for at the full contract price for a superficial square of new pavement out of the fund set apart for the payment of contracts for the maintenance of streets, and the amount shall be certified by the street commissioner to the auditor, who shall reimburse, by transfer, the aforesaid fund from the funds of the proper department, if the repairs were made necessary by the construction of any public improvement; and out of the funds to be deposited by persons obtaining permits for opening streets before such permits are granted, if the repairs are made necessary by work done under such permits. And the contract shall further provide...