Barber Asphalt Paving Company v. Munn

• Decision Date: 24 December 1904
• Parties: BARBER ASPHALT PAVING COMPANY, Appellant, v. MUNN et al
• Court: Missouri Supreme Court

83 S.W. 1062

185 Mo. 552

BARBER ASPHALT PAVING COMPANY, Appellant, v. MUNN et al

Supreme Court of Missouri, Second Division

December 24, 1904

Appeal from Jackson Circuit Court. -- Hon. W.B.Teasdale, Judge.

Affirmed.

Scarritt Griffith & Jones for appellant.

(1) The contract between Kansas City and the Paving Company to pave Tenth street upon being approved and confirmed by ordinance of that city became the legislative act of the city; i. e its terms had the dignity and sanction of a law, because the city on November 2, 1892, enacted an ordinance expressly confirming and approving that contract. That ordinance recited the date and the parties to the contract and expressly ordained and declared that the contract was thereby confirmed. Keating v. City of Kansas, 84 Mo. 415; Wheeler v. Poplar Bluff, 149 Mo. 36; 2 Dill. Mun Corp. (3 Ed.), secs. 949, 951. The reference to the contract and the recital of its confirmation makes the contract as much a part of that confirmation ordinance as though every word and figure of that contract were recited in the ordinance. Pav. Co. v. Ullman, 137 Mo. 571; Becker v. Washington, 94 Mo. 380. (2) Assuming the contract to be a part of the ordinance confirming and ratifying it, then its terms, in respect to the time within which the work was to be completed, being inconsistent with the ordinance, No. 4572, providing for the construction of this pavement, by express requirement or at least by implication, changed the time for such construction. Where two ordinances or laws relative to the same subject-matter are enacted at different times, the law last enacted -- the last expression of the legislative will -- will be held to be the paramount law. In re Lorkowski, 94 Mo.App. 630; Suth. on Stat. Const., sec. 136. (3) The only ordinance declaration, therefore, in force and effect after the enactment of the confirmation ordinance, relative to the time when the work in question should be completed, was one which specified that if the work was not completed within the sixty days during which the prosecution of the work was not suspended by order of the engineer, and which imposed a penalty of ten dollars a day for each and every day after that period during which the work was not completed, is one in which time is not of the essence of the undertaking. Heman v. Gilliam, 171 Mo. 268. (4) Under a proper construction of the time provision of the paving contract, it required no more than that the work should be completed within a reasonable time, and the period within which the work was suspended, under the written direction of the engineer, is required to be deducted in estimating the period taken to accomplish the work. Barcus v. Plank Road Co., 26 Mo. 102; 1 Dillon, Mun. Corp. (3 Ed.), sec. 483; 15 Am. and Eng. Ency. Law (1 Ed.), 1112. (5) The confirmation ordinance is valid; and the terms of the contract to which that ordinance expressly referred, and which it confirmed and approved, became a part of it and thereby changed the period of sixty days fixed for the completion of the work in the original ordinance No. 4572, to that fixed by the terms of the contract. Carlin v. Cavender, 56 Mo. 186; Strasshein v. Jerman, 56 Mo. 104. (6) The validity of the charter provision in question is at least a debatable question. It is an enactment drafted and adopted in accordance with the requirements of the State Constitution. A presumption, therefore, obtains that it is constitutional and valid. That presumption is so strong that the decisions of this State hold it is to be overcome only by the attacking party sustaining the burden of proving it so. Henderson Bridge Co. v. Henderson, 173 U.S. 615. Under our system of government and under our Federal and State Constitutions as construed, a citizen is not entitled to a judicial trial as a constitutional right upon a demand to enforce a tax. Eames v. Savage, 77 Me. 212; McMillen v. Anderson, 95 U.S. 37; Murray v. Land Co., 18 How. 272; Cooley, Const. Lim. (6 Ed.), 587; McColloch v. Maryland, 4 Wheat. 428; Kelley v. Pittsburg, 104 U.S. 80. The levy and collection of taxes is a legislative function. The methods for so doing must be established by the Legislature. A law could undoubtedly be framed, and in many jurisdictions they are framed, providing for the levy and collection of special assessments without resort to courts at any stage of the proceeding. People v. Turner, 145 N.Y. 451; Seminary v. Tacoma (Wash.), 62 P. 444. Because a law is not as wise as it might be, because it does not go as far as it might go, is not a good reason for a court to declare it unconstitutional. State v. Railroad, 21 Nev. 260; Mix v. People, 116 Ill. 265; Allen v. Armstrong, 16 Iowa 508; Wahlgren v. Kansas City, 42 Kan. 243; Kansas City v. Kimball, 60 Kan. 224; Doran v. Barnes, 54 Kan. 238; Kansas City v. Gray, 62 Kan. 198.

Joseph S. Rust for respondents.

(1) The provision in the charter requiring the owner of the lot to file objections to the taxbill with the board of public works is of no effect. Richter v. Merrill, 84 Mo.App. 150; Winfrey v. Linger, 89 Mo.App. 161; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376. (2) It is expressly decided by Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535; Safe Deposit Co. v. James, 77 Mo.App. 616; Whittemore v. Sills, 76 Mo.App. 248; Neill v. Gates, 152 Mo. 585; Barber Asphalt Co. v. Ridge, 169 Mo. 376; and Schoenberg v. Heyer, 91 Mo.App. 389, that where as in the case at bar the ordinance providing for the work fixes the time for the completion of the work, the taxbills are void, if the work is not completed within that time. (3) The ordinance confirming the contract could not change that sixty-day time-limit provided for in original ordinance for the following reasons: 1st, the confirming ordinance did not say one word about extending that time; 2nd, the bidding was done under the first ordinance, No. 4572, and on the theory that the work had to be done in sixty days, and, as is pointed out in foregoing cases, it would be unfair to the other bidders and the property-owner to change that time after the bids were made. It would not be letting the work under competitive bids, and the ordinance confirming the contract could not possibly cure that, because it was passed after the bids were made. Heman v. Gilliam, 171 Mo. 267; 3rd, the work for the doing of which this taxbill was issued was done in pursuance of section 2, article 9 of the charter of Kansas City (a public act), which provides: "That no such ordinance shall be passed by the common council except upon the recommendation of the board of public works endorsed thereon." Such "recommendation of the board of public works" (which is a condition precedent and without which the work cannot be done) was not endorsed on the ordinance which confirmed the contract, and for that reason that confirming ordinance could not take the place of the ordinance providing for the work; as appellant so ingeniously argues. The purpose of the confirming ordinance is not to provide terms on which the bids are to be made and it did not so provide. The bids have then already been made. St. Louis v. Franks, 78 Mo. 43. (4) Even if the $ 10 per day penalty provided for in the contract would annul the unconditional provision of the original ordinance for completion in 60 days, the evidence shows expressly that no credit was made on account of this nearly five months' delay.

GANTT, P. J. Fox, J., concurs; Burgess, J., not sitting.

OPINION

GANTT, P. J.

This is an appeal from the circuit court of Jackson county. The suit is an action by petition in the ordinary form to enforce the collection of a special taxbill issued by Kansas City against a city lot owned by defendant, in part payment of the contract price for paving Tenth street from Cherry to Olive street with an asphalt pavement. The petition contains four counts, each of which is grounded upon one of the four installments of the taxbill. The answer embraces first a general denial and six special defenses as follows:

"1. That the ordinance and contract providing for the work, required the work to be completed within sixty days after the contract became binding; that while the contract was approved and became binding on the 2nd day of November, 1892, the work was not completed until May, 1903, by reason whereof the taxbill is void.

"2. That the terms of the contract required the street to be guaranteed to remain in a state of perfect repair for a period of five years after completion; that there was no law authorizing the charging of the cost of repairs against abutting property, and that said ordinance, contract and bill are, because of the guaranty and provisions, void.

"3. That the Kansas City charter requirement for apportioning and charging the cost of such work against abutting lands according to their frontage upon the improvements is unconstitutional and void.

"4. That the amount of pavement laid in front of other property upon the street paved was greater than in front of the defendant's property, while the cost of the whole work was levied against abutting lands according to frontage.

"5. That the city engineer did not personally compute and apportion the cost of the work as required by section 6 and article 9 of the charter of Kansas City.

"6. That the contract for the work did not contain a clause providing that eight hours should constitute a day's work for all workmen employed in its execution as provided by the general ordinances of Kansas City."

Plaintiff's reply admitted that the contract for the work in question was approved and became binding on November 2, 1892. It charged that the specifications for the work embraced in the contract between the city and the paving company in evidence, were, by reference, made...