City of New Franklin v. Edwards

• Decision Date: 02 December 1929
• Docket Number: No. 16715.,16715.
• Citation: 23 S.W.2d 235
• Parties: CITY OF NEW FRANKLIN ex rel. LYNCH-McDONALD CONST. CO. v. EDWARDS.
• Court: Missouri Court of Appeals

23 S.W.2d 235

CITY OF NEW FRANKLIN ex rel. LYNCH-McDONALD CONST. CO. v. EDWARDS.

No. 16715.

Kansas City Court of Appeals. Missouri.

December 2, 1929.

Rehearing Denied January 6, 1930.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

Action by the City of New Franklin, on the relation of the Lynch-McDonald Construction Company, against George C. Edwards. Judgment for defendant, and plaintiff appeals. Affirmed.

Willard P. Cave, of Moberly, for appellant.

R. M. Bagby, of Fayette, and A. R. James, of Marshall, for respondent.

BOYER, C.

This is an action on a special tax bill issued against the property of respondent for the building of a district sewer in sewer district No. 2 in the city of New Franklin, Mo.

The petition alleges due and proper steps by the city, a city of the fourth class, in the initiation of the work, and all intermediate steps, and the final acceptance and approval of the work done, and the authorization of the issuance of the tax bill, and the issuance thereof to plaintiff, all by ordinances of the city duly passed and approved; that the tax bill is past due and unpaid; and demands judgment for the amount thereof, and that it be decreed to be a prior lien on the real estate of defendant.

The answer admits that the city of New Franklin is a municipal corporation duly organized and incorporated as a city of the fourth class; that defendant is the owner of the real estate described, and denies all other allegations of the petition. And for further answer, defendant says that the tax bill sued on is void and is not a valid lien on the real estate of defendant for 15 separately specified reasons. Their substance is: (1) That the ordinances required to be passed by the city were never legally passed by the board of aldermen and signed and approved by the mayor; that no vote was taken thereon by said board of aldermen, nor were the ayes and nays entered upon the minutes of said board as the law required; (2) that no estimate of the cost was made by the city engineer or other proper officer, and that the person who assumed to act as city engineer was a nonresident of the city; and (3) that the purported ordinances providing for the construction of said sewer included in the contract price, in addition to the actual cost of construction, 20 per cent. of the actual cost to be paid to the engineer and to the attorney acting for the city. The answer prayed a decree that the tax bill be declared null and void and be canceled.

Plaintiff introduced in evidence the tax bill sued on, and testimony that the bill had been issued to it, and that it was the owner thereof.

Defendant put in evidence the ordinances purporting to have been passed and approved November 4, 1921, November 21, 1921, December 5, 1921, December 14, 1921, and September 5, 1922. The first one declaring the necessity for a sewer district and prescribing the boundary thereof; the second, finding no protest and ordering the construction of the sewer district, notice for bids, providing for contract with engineer, and ordering plans and specifications filed; the third, accepting, approving, and adopting profiles, plans, specifications, and contract for the work; the fourth (two ordinances), approving contractor's bond, and accepting contractor's bid for construction of sewer district; and, fifth, approving and accepting the work of the contractor, levying a special tax, and ordering the issuance of the special tax bills.

The ordinances dated November 4, November 21, December 5, and the one approving the contractor's bond, December 14, and the one of September 5, show by indorsement thereon four affirmative votes and the approval of the mayor. The ordinance dated December 14, accepting the bid, awarding the contract and directing the engineer to compute the whole cost upon completion and apportion the same against the several lots in the district, bears a notation of approval by the mayor, but the aye and nay vote is not shown by indorsement thereon or otherwise.

Defendant further put in evidence the contents of the journal of the board of aldermen of the city of New Franklin in reference to the particular ordinances above described. The journal recital under date of November 4, 1921, is as follows: "Council met in call session with Mayor Moser and all councilmen present to consider adopting new ordinance to the City of New Franklin regarding installing new sewer district to be known as Sewer District No. 2. The ordinance was read three times and carried by the following vote: Wilson, Yes; Bryan, Yes; Solomon, Yes. This was the only business to be considered, so council adjourned."

The entry made November 21, 1921, among other things, contains the following: "An ordinance pertaining to sewer district No. 2, calling for bids, etc., was also adopted."

The entry under date of December 5, 1921, recites among other things: "Council met in regular session, Mayor Moser and all councilmen answering present at roll call. * * * Bids for construction of Sewer District No. 2 in the City of New Franklin were next considered and Lynch-McDonald Construction Company of Moberly being the sole bidder, their contract of $1.29 per lineal foot was accepted. An ordinance accepting, approving and adopting profiles, plans, specifications and contracts for installing Sewer District No. 2 in the City of New Franklin was then adopted by the council. * * *"

The entry under date of December 14, 1921, is as follows: "Council met on call of the Mayor to consider ordinances pertaining to contracts with Lynch-McDonald Company regarding construction of Sewer District No. 2. An ordinance approving contractor's bond and one accepting contractor's bond for construction of sewer district No. 2 within the City of New Franklin were adopted by council. All councilmen and Mayor were present."

The entry under date of September 5, 1922, contains the following: "The council with Mayor Moser and all councilmen present met in regular session Tuesday evening September 5, and after reading of monthly accounts, warrants for payment were ordered drawn as follows: * * * Next order of business was the accepting of contract of construction of Sewer District No. 2. After reading, the contract was accepted, the vote being as follows: C. O. Wilson, Yes; O. A. Jones, Yes; Phil Bryan, Yes; E. E. Solomon, Yes. * * *"

The foregoing entries in the journal in each instance were signed by the clerk and either attested or signed by the mayor.

Defendant further showed that the engineer who was employed by the city to prepare plans, specifications, estimates, and profiles and to superintend the construction of the sewer did not reside...