City of De Soto v. Showman

• Citation: 100 Mo. App. 323,73 S.W. 257
• Parties: CITY OF DE SOTO ex rel. IRWIN v. SHOWMAN.
• Decision Date: 03 March 1903
• Court: Court of Appeal of Missouri (US)

73 S.W. 257

100 Mo. App. 323

CITY OF DE SOTO ex rel. IRWIN v. SHOWMAN.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

MUNICIPAL CORPORATIONS—SPECIAL ASSESSMENTS— ESTIMATES—SUBMISSION —CONTRACTS.

1. Under Rev. St. 1899, § 5858, providing that an estimate of the cost of any municipal improvement shall be made, such an estimate is a prerequisite to the letting of a contract for an improvement.

2. No contract can be entered into for a municipal improvement at a price exceeding the estimate of its probable cost.

3. In an action to recover on a tax bill for a street improvement, it was in issue whether an estimate of the work had been made. It appeared that an engineer had made an estimate at the request of one of the councilmen, and the councilman testified that he filed it with the city clerk. One who was city clerk at the time denied any filing, and the one who became city clerk afterwards stated that he had made search among the records, but could not find any such estimate. Held, that the evidence showed that no such estimate was ever submitted to the council.

4. An ordinance for a street improvement undertook to fix the grade by reference to a "datum plane" as fixed by certain ordinance "No. ___." The ordinance which purported to establish the grade specified numerous elevations above the "datum plane," but the number of the ordinance prescribing the plane was left blank, and in an action to enforce a tax bill for the improvement no such ordinance was introduced, and the engineer who it was claimed fixed the grade testified that the grade he fixed was the first grade ever fixed, and that having no ordinances to go by he established the grade himself. Held, that no grade of the street was established.

5. Under Rev. St. 1899, § 5860, requiring that contracts for municipal improvements shall be let on plans filed with the city clerk, a contract for an improvement, the plans for which were not filed with the clerk, is invalid.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by the city of De Soto, on the relation of H. B. Irwin, against W. A. Showman. From a judgment for defendant, plaintiff appeals. Affirmed.

Sam Byrns, for appellant. Green & Bean, for respondent.

Statement of Facts and Opinion.

GOODE, J.

Respondent is the owner of a lot in the city of De Soto, Mo., which is a city of the third class. Said lot fronts on Fifth street, between Boyd and Kelley streets, in said city, and this action was instituted to recover on a special tax bill for $70.35 issued to pay for grading, macadamizing, graveling, curbing, and guttering Fifth street between said other streets, on a contract made by the city of De Soto with the relator, Irwin, on or about June 20, 1900.

The defenses set up in the answer are as follows: (1) The city council did not declare by ordinance it was necessary to pave, macadamize, gravel, and grade Fifth street. (2) The council passed no ordinance declaring that in its judgment the general revenue fund of the city was not in condition to warrant an expenditure from that fund for bringing Fifth street to grade. (3) No ordinance was published for two weeks in regard to the improvement of Fifth street. (4) No ordinance was passed to assess the cost of bringing said street to grade, nor for levying tax bills against said lots to pay for the grading. (5) No estimate of the cost of the work necessary to be done was made by the city engineer or other proper officer and submitted to the council. (6) The contract was not let by competitive bidding. (7) The contract was let to the relator at an adjourned meeting of the council, although the awarding of the contract had been previously postponed to the next regular meeting. (8) Irwin did not sign the contract with the city. (9) No plans and specifications of the work were filed with the city clerk before or after the bid was received. (10) The contract was awarded against the protest of the owners of the abutting property.

The proceedings of the city council preliminary to the awarding of the contract in question were exceedingly irregular, and proof of what they were rests largely on oral testimony, no record having been kept of many acts. At the conclusion of the evidence the issues were submitted to the circuit judge for decision without declarations of law being requested by either side, and hence, in so far as there is substantial conflict in the testimony, this court is bound to accept the judgment of the court below as a finding of the disputed facts in favor of the respondent.

The first four defenses were overthrown, we think, by the recorded proceedings.

Overlooking several minor objections to the validity of the tax bill, we will take up the more important points made against its validity.

(a) The first is that no estimate was submitted to the council of the cost of the contemplated improvement, and that the contract price exceeded the estimates actually made but not submitted. Such an estimate is a prerequisite to the letting of a contract for a street improvement of the sort which is the basis of this controversy. Rev. St. 1899, § 5858; City of Independence v. Briggs (K. C.) 58 Mo. App. 241; City of Marshall v. Rainey (K. C.) 78 Mo. App. 416; Wheeler v. Poplar Bluff, 149 Mo. 36, 49 S. W. 1088; Mills v. Detroit, 95 Mich. 422, 54 N. W. 897; Worthington v....