City of Excelsior Springs v. Ettenson
| Decision Date | 02 July 1906 |
| Parties | CITY OF EXCELSIOR SPRINGS to the use, etc., Respondent, v. HENRY ETTENSON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay Circuit Court.--Hon. Joshua W. Alexander, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
H. L Moore and I. J. Ringolsky for appellants.
(1) There was no authority given cities of the fourth class to curb or gutter its streets by issuing taxbills. Sec. 1592, Laws 1893, pp. 107-108; Knapp v. Kansas City, 48 Mo.App. 485; St. Louis v. Tel. Co., 96 Mo. 623; Hustonia v. Grubbs, 80 Mo.App. 433; Bank v Sanford, 103 Fed. ; Skinker v. Heman, 148 Mo 349. (2) The Laws of 1893, p. 107, delegate to the board of aldermen authority by ordinance to fix the time, extent, dimensions, material, manner and regulations connected with public improvements. Hence, none of these legislative powers can be delegated to any other person or officer. If the ordinance fixes the time within which a public improvement shall be finished, then no one has the right to extend that time. In other words, the contract made for the improvements with the contractors, must correspond with the ordinances authorizing the making of the improvements. Our contention is that all the contracts for the paving, guttering and curbing under which the work was done and the taxbills issued are void because the contracts are different in terms and conditions from the ordinances authorizing the work, and are much more favorable to the contractor than the ordinance; and because the contracts give to the city engineer legislative powers, only possessed by the board of aldermen themselves. (3) We think the contracts made with McCormick are void because they are in conflict with the ordinance appointing an engineer, and because the contracts are against public policy. Kick v. Merry, 23 Mo. 72; Gillman & Cowdery v. Railroad, 40 Iowa 200; Outon v. Rhodes, 3 Marsh (Ky.) 433; Taffan v. Brown, 15 Wend. 170. (4) The ordinances and taxbills for macadamizing Broadway, South and Main streets are void, because they provide that these streets shall "be macadamized to the full width thereof, exclusive of sidewalks." (5) As plaintiff seeks to enforce a taxbill for curbing and paving Broadway from "west side of lot 7," and in the various counts in the petition for curbing and paving Broadway alleges that the work was completed from the "west side of lot 7," he having failed to prove that he did the work from the "west side of lot 7," this being a material allegation, there was a total failure of proof of the causes of action charged in said counts in the petition. If the contract was modified so as to allow the work to be done from the "east side of lot 7," plaintiff should have pleaded that fact. There was no consideration for such modification of the contract. Plaintiffs cannot sue on one written contract and recover on another. For these reasons, the decree should have been for defendants on the counts for paving and curbing Broadway. R. S. 1899, secs. 728-729; Faulkner v. Faulkner, 73 Mo. 327; Waldhire v. Railroad, 71 Mo. 514; Groll v. Tower, 85 Mo. 247; Whipple v. Loan Ass'n, 55 Mo.App. 554; Cole v. Armour, 154 Mo. 333; Mormaw v. Emerson, 80 Mo.App. 318; Lanitz v. King, 93 Mo. 513.
D. C. Allen and Sandusky & Sandusky for respondent.
(1) Cities of the fourth class may curb or gutter their streets by issuing taxbills. Laws 1893, pp. 107-8, sec. 1592; Elliott on Road and Streets (1 Ed.), p. 335; Dillon on Municipal Corp. (4 Ed.), 3797; Corbin v. Cavender, 56 Mo. 286. (2) The contracts under which the work was done were not void upon the grounds stated in appellants' brief. (3) It is claimed the taxbills are invalid because the width of the sidewalks was not fixed, when the ordinances for the improvement were passed. Under the testimony the width of the sidewalk was fixed before the contracts were entered into. (4) It is claimed that the taxbills for macadamizing and curbing Broadway are void for the reason that the work stopped at the east line of lot 7, in block 19, Western addition, instead of the west line of said lot 7, a difference of forty feet. This presents simply a question of construction. (5) It is claimed that the taxbills for paving and curbing Broadway and South street are invalid because two streets (as alleged) were improved under one ordinance and contract.
--Action to enforce special taxbills issued in payment of certain street improvements in Excelsior Springs. Their validity is attacked by defendant on a number of grounds, but was sustained by the trial court. An appeal was allowed to this court, but, on motion of defendant, the cause was certified to the Supreme Court because in our opinion a constitutional question was involved. The Supreme Court reached a different conclusion and remanded the cause (Excelsior Springs to use v. Ettenson, 188 Mo. 129, 86 S.W. 255), and in the opinion filed eliminated that question from the case.
Thirty-six taxbills were issued against property of defendant in Excelsior Springs, a city of the fourth class; nine for the macadamizing of Main street, nine for the curbing laid thereon, nine for the macadamizing of Broadway and nine for curbing on that street. Each taxbill was made the subject of a count in the petition. In the judgment a separate finding was made on each count and judgments were rendered in the aggregate on all counts affecting the same property. The improvements mentioned consisted of the macadamizing, guttering and curbing of Broadway, South, and Main streets. Broadway runs east and west. South is the eastward prolongation thereof. Main runs north and south crossing Broadway.
On June 28, 1894, the city in providing for the doing of the work contemplated passed four ordinances, i. e.: No. 232 for the macadamizing and guttering of Broadway and South streets; No. 240 for the curbing of the same; No. 236 for macadamizing Main street and No. 244 for the curbing thereon. Each ordinance required the city engineer to make and file in the city clerk's office an estimate of the improvement, stating in those relating to macadamizing the cost per square yard "for macadamizing according to the specifications of this ordinance and" in those relating to curbing "the cost per lineal foot for said curbing according to specifications," etc. The mayor and clerk were required to advertise for bids in the official newspaper for a period of ten days and each ordinance made it mandatory on the mayor and board of aldermen to "let the contract . . . to the lowest and best bidder provided the amount bid does not exceed the estimate price." The estimates were filed; advertisements made; and on July 21st, by resolutions duly passed, the whole work was awarded to F. P. McCormick, whose bid on the macadam was sixty cents per square yard and on the curbing fifty cents per lineal foot. Written contracts were made with McCormick on July 26th and on the same day these were confirmed by the city in ordinances duly passed. The improvements were completed by the contractor in the time required by the ordinances and contracts (one hundred, twenty days), the cost thereof computed and apportioned, and the taxbills were issued on November 15th and delivered to the contractor who, before the bringing of this suit, assigned them to the plaintiff.
At the time these improvements were made the right of the city to assess the cost of such improvements against the adjoining property was derived from the provisions of section 1592, Revised Statutes 1889, as amended in 1893. [Session Acts 1893, page 107, et seq.] That section provided, "The board of aldermen shall have power by ordinance to cause to be graded, constructed, reconstructed, paved, or otherwise improved and repaired, all streets, sidewalks and alleys, and public highways, and parts thereof within the city at such time and to such extent and of such dimensions and with such materials and in such manner and under such regulation as shall be provided by ordinance," etc. The ordinances passed by the city for the macadamizing specified the time allotted for the completion of the work, the materials to be used, the manner and regulations to be followed, and with reference to the extent and dimensions of the improvements fixed a boundary at each end thereof and stated that each street was to "be macadamized to the full width thereof exclusive of sidewalks." Broadway-South street is sixty feet wide, Main street forty feet. When the ordinances were passed no sidewalk limits had been established by the city on these streets either by general or special ordinance, nor were they fixed until after the contracts had been awarded to McCormick. On July 26th, the date the contracts were made and confirmed by ordinance, the city passed an ordinance establishing the width of the sidewalks on Broadway-South street, at eight feet and on Main street at six feet. It thus will be seen that bidders were not advised by the ordinances, nor by the plans and specifications, of the extent of the macadamizing required, since a necessary dimension (the width) was not stated and could not have been known. Defendant relies on this omission to defeat the validity of the bills issued for the cost of the macadamizing.
We give ready assent to the argument of plaintiff "that all presumptions are in favor of the right acting of public officers" and that "the taxbills themselves are prima facie evidence of the regularity of the proceedings for such special assessments, of the validity of the bill, of the doing of the work, of the furnishing of the materials charged, and of the liability of the property to the charge stated in the bill." But such presumptions go no further than to cast the burden of...
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