City of Independence v. Knoepker

• Decision Date: 01 July 1907
• Parties: CITY OF INDEPENDENCE et al. v. KNOEPKER et al.
• Court: Missouri Supreme Court

103 S.W. 940

205 Mo. 338.

CITY OF INDEPENDENCE et al. v. KNOEPKER et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. COURTS — APPELLATE JURISDICTION—CONSTITUTIONAL QUESTIONS.

In an action to enforce a special tax bill against defendant's property for street paving done by plaintiff under a contract with the city, it appeared that while the work was being done the city had extended the time for completing the contract. Plaintiff prayed an instruction that the city had, under its charter and the provisions of Const. art. 9, § 7, power to grant additional time for completing the work. Const. art. 9, § 7, refers to the organization and classification of cities under Const. 1875, and has no bearing on the power of a city to extend the time for the completion of work under a contract for a public improvement. Held, that the refusal of the instruction did not raise a constitutional question, giving the Supreme Court jurisdiction of an appeal from the judgment.

2. SAME.

In an action to enforce a special tax bill against defendant's property for street paving done by plaintiff under a contract with the city, the questions involved were whether the city ordinances relied on by plaintiff were sufficient under the general law governing cities of the third class (Laws 1893, p. 65 et seq.), whether the specifications for the work were definite enough to give notice to property owners or to sustain an ordinance, whether the formula accompanying the bid of the successful bidder had the effect of supplementing the ordinance, and whether the contract was performed within the provisions of the contract. Held, that an assignment of error based on the ground that a peremptory instruction to find the issues for defendant deprived plaintiff of its property without due process of law within the meaning of the state and the federal Constitutions raised no constitutional question, giving the Supreme Court jurisdiction of an appeal from the judgment.

Appeal from Circuit Court, Jackson County; J. V. C. Karnes, Special Judge.

Action by the city of Independence for the use of the Parker-Washington Company and the Parker-Washington Company, against John H. Knoepker and another. Judgment for defendants, and plaintiffs appeal. Record ordered transferred to the Kansas City Court of Appeals.

Ball & Ryland, for appellants. James M. Callahan and Flournoy & Flournoy, for respondents.

GANTT, J.

This is an action to enforce a special tax bill against the defendants' adjoining property for $114.83. The answer alleged that the tax bill was void and of no effect, because the resolution passed by the council preliminary to the doing of the work did not sufficiently describe the kind of paving to be made and did not give the property owner definite notice of the kind and quality of the pavement, as required by the charter of the city, a city of the third class; second, that the ordinance by virtue of which the paving was done was ineffectual to create a lien, for the reason that it did not conform to the requirements of the resolutions; third, that the street was not completed within the time required by the ordinance; fourth, that the work was not done in accordance with the contract, and when completed was so inferior as to be practically worthless; fifth, that the cost of the work was not proportioned in accordance with the requirements of the charter. The reply was a general denial. There was a verdict and judgment for the defendants, and the plaintiff appealed.

It appears that the contract was entered into and approved by the council on the 31st day of August, 1898. Among other provisions of the ordinance was the following: "The work herein provided for shall be commenced within 30 days from the date of letting the contract, and be completed within 90 days from the time the contract takes effect." It appears that on September 29, 1898, the construction company was notified not to touch the old pavement until they had sufficient amount of material in sight to complete the contract, unless they were otherwise ordered in writing, and that afterwards, on October 10, 1898, they were notified to proceed with the work without delay. It seems the work was not completed within the 90 days. On the 29th of November, 1898, the city passed another ordinance whereby the time for the completion of the contract was extended for 10 full working days, and providing that for each or every day for said period that the work might be prevented or interfered with by inclement weather an additional day was given to construct the pavement. At the conclusion of all of the evidence the court gave a peremptory instruction to the jury to find for the defendants. Among other instructions prayed by the plaintiff was one numbered 5, as follows: "The court instructs the jury that the city of Independence, at the time of letting the paving contract...