Plaintiff
had judgment in the circuit court on two special tax bills
for an amount in excess of $ 2,500. Defendant appealed. The
bills were based on an ordinance, approved, June 27, 1887, as
follows:
"SPECIAL
ORDINANCE NO. 280.
"An
ordinance to provide for the paving of Sixth street from the
north line of Hall street to the north line of Atchison
street, with Trinidad sheet asphaltum and for the setting of
the curb to the proper line and grade.
"Be
it ordained by the Common Council of the city of St. Joseph
as follows:
"Section
1. That it is found and declared by the Common Council, that
property holders owning a majority in front feet of the
property owned by residents of this city, and fronting on
Sixth street, between the north line of Hall street and north
line of Atchison street, in the city of St. Joseph, have
petitioned said Common Council to have said Sixth street
between the north line of Hall street and the north line of
Atchison street of said city, paved with Trinidad sheet
asphaltum, according to the specification therefor on file in
the office of city engineer, and that the petition for such
paving has been duly published according to law.
"Section
2. That said Sixth street, between the north line of Hall
street and the north line of Atchison street, of said city of
St. Joseph, be paved with Trinidad sheet asphaltum in
accordance with said petition and said specifications on file
in the office of the city engineer, and that the total cost
of such paving be, and it is charged, assessed and levied as
a special tax bill on and against all real estate fronting on
both sides of said Sixth street, between the streets
aforesaid.
"Section
3. That the said paving of said Sixth street, between the
streets named in the preceding section, be paid for in
special tax bills made out and specified by the city
engineer, against the several lots or parcels of land
charged, as required by law; provided, however, that when the
owner of any lot or parcel of ground fronting on Sixth
street, within the streets herein above ordered to be paved,
shall, within ten days after the letting of the contract for
such work, notify the city engineer in writing, that he
desires to pay for such work in five annual payments, the
city engineer in pursuance of said notice, shall make out
five separate special tax bills, bearing interest as required
by law. Such five separate special tax bills shall bear
interest at the rate of seven per cent per annum, from the
date of the issue until the maturity thereof, and the passage
of this ordinance, and the doing of said work shall not
render the city liable to pay for such work, or any part
thereof.
"Section
4. That the city engineer proceed forthwith to advertise for
ten days, according to law and the ordinances of the city,
for bids for paving Sixth street between the streets
aforesaid, with Trinidad sheet asphaltum, according to said
specifications on file in the office of the city engineer.
"Section
5. That the city engineer is hereby ordered to have the
curbing on Sixth street, between the streets hereinabove
ordered to be paved, set to proper line and grade.
"Section
6. That all ordinances or parts of ordinances in conflict or
inconsistent with this ordinance be, and the same are, hereby
repealed.
"Approved
June 27, 1887.
[SEAL]
"Thomas H. Doyle, Mayor.
"Attest:
Purd B. Wright, City Clerk."
The
contract for the work, on which the special tax is founded,
is quite long. It contains a mass of particulars that are not
relevant, as well as many that are vital, to this litigation.
The following is an outline of its principal features,
including quotations of important parts:
The
parties named are the plaintiff, as principal and party of
the first part, and the city of St. Joseph as party of the
second part.
Then
follow recitals of the letting to plaintiff as lowest and
best bidder (under the above quoted ordinance No. 280) and a
statement of the general scope of the contract.
"Whereas,
the party of the second part did let unto the said The Barber
Asphalt Paving Co., the work of paving Sixth street from the
north line of Hall street to the north line of Atchison
street with Trinidad sheet asphaltum and for the setting of
the curb to the proper line and grade, by taking up and
removing the old pavement, preparing the roadway and
re-adjusting the curbing, laying a roadway pavement, to
consist of a base of hydraulic cement concrete, covered with
a wearing surface, composed of a mixture of refined Trinidad
asphalt, heavy petroleum oil, sand and powdered carbonate of
lime; making all proper connections and intersections with
other streets and alleys; and to maintain paved street for a
period of five years, without cost to the city; and to
further maintain said paved street, for an additional period
of five years, commencing five years after the work of paving
is completed and accepted, as by above mentioned ordinance
specified, at the prices hereinafter stated:
"SPECIFICATIONS.
"Now,
therefore, in consideration of the payments and covenants
hereinafter mentioned, to be made and performed by said
second party, the said The Barber Asphalt Paving Company,
hereby covenant and agree to do the work of paving and
maintenance above mentioned in a substantial and workmanlike
manner, in conformity with the plans of such work on file in
the office of the city engineer of the city of St. Joseph,
and in strict obedience to the directions which may from time
to time be given by said city engineer, or his duly
authorized agents, and in accordance with the
following:"
Then
appear special provisions on the topics named, giving
particular descriptions of the process of doing the entire
work. Only the headings need be quoted:
"Taking
up old pavement." * * *
"Preparing
roadway." * * *
"Curbing."
* * *
"Concrete
foundation." * * *
"Sand."
* * *
"Cement."
* * *
"Mortar."
* * *
"Concrete."
* * *
"Hot
composition." * * *
"The
wearing surface will be composed of:
"1st.
Refined asphalt.
"2d.
Heavy petroleum oil.
"3d.
Fine sand, containing no more than one per cent hydrosilicate
of alumina.
"4th.
Fine powder of carbonate of lime. The Trinidad asphaltum
(so-called), whether crude or refined, as found in this
market, contains from twenty to thirty-five per cent of
impurities. The asphaltum herein specified is to be specially
refined and brought to a uniform standard of purity and
gravity."
Then
follow minute directions touching the preparation and laying
of the asphaltum. (We omit them.)
"GENERAL
STIPULATIONS."
"It
is further expressly agreed between the parties hereto, that
this contract is made subject to the conditions and
stipulations which follow:
"1.
The first party shall not assign or transfer this contract,
or sub-let any of the work embraced in it."
2.
Directions as to beginning different parts of the work.
3. The
working force is to obey orders of city engineer, etc.
4. City
engineer to judge of what work and material are to be
included necessarily, if not specially mentioned, etc.
"5.
The first party, upon being so directed by the engineer,
shall remove or re-construct or make good at his own cost,
any work which the latter shall decide to be defectively
executed; and any omission to condemn any work at the time of
its construction shall not be construed as an acceptance of
any defective work; but the first party shall be required to
correct any imperfect work whenever discovered, before final
acceptance of the work."
6.
First party to observe all ordinances as to obstructing
streets; to hold the city harmless for any negligence of
agents in doing the work, etc.
7. City
engineer to pass on the quality of the materials to be used
by the company, and the latter to conform to his decision.
"8.
This contract is entered into subject to the approval or
rejection of the council and subject to the city charter and
ordinances in general."
A
number of stipulations are made as to guards, signal lights,
and other means to protect the public during progress of the
work. City may stop the work for good and sufficient cause,
on ten days' notice; and may have the fidelity of the
performance to the contract investigated.
9. City
engineer to have power to alter certain matters of detail if
found necessary.
10.
Stipulations as to effect of delays, etc.
11.
Work to begin within one week after notice by city engineer,
and to be finished within one year, subject to certain
exceptions.
12. If
the contract be assigned, or the company fail to perform or
observe its terms, the city may cancel it, re-let the work
and hold the company in damages.
13.
Further provisions as to delays.
"Rubbish"
-- agreement to remove, etc.
Note --
Meaning of words "contractor" and "city
engineer," as used in the contract defined.
"Guarantee.
-- The contractor guarantees the pavement constructed under
these specifications for five years, agrees to keep the same
in repair during the period of said guarantee, and at the end
of said period of five years to turn said pavement over to
the city in good order and condition. Also, to propose in his
said bid, an agreement to keep said pavement in repair for an
additional term of five years, and to turn said pavement over
to said city at the end of such additional term, in good
order and condition; and it is further agreed that whenever
any repairs of the streets are made necessary from the
construction of sewers, the laying of pipes, or of telegraph
wires, or from any other disturbance of the...
