City of Springfield To Use of Central National Bank v. Weaver

• Decision Date: 02 March 1897
• Parties: City of Springfield to use of Central National Bank v. Weaver et al
• Court: Missouri Supreme Court

37 S.W. 509

137 Mo. 650

City of Springfield to use of Central National Bank v. Weaver et al

Supreme Court of Missouri, First Division

March 2, 1897

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Reversed and remanded.

Massey & Tatlow and Goode & Cravens for appellants.

(1) The court clearly erred in holding in this case that it was necessary to pass the ordinance ordering the work done prior to advertising for bids, and the failure so to do vitiated the proceedings. It is the charter that grants, limits and defines the powers of the council as a legislative body which can neither be added to nor taken from by any ordinance passed by the city council. The power of the council as prescribed in the charter, to cause improvements to be made is: First. A preliminary resolution declaring that the council deems it necessary to improve the street. This resolution, under section 1498 of the Revised Statutes 1889 must first be passed and duly published, as provided by this section for two weeks. After its publication, if a majority of the property owners do not protest within ten days, the council is then vested with jurisdiction to go forward and carry out the improvement. Second. Under the statute, as construed by the supreme court, in addition to this resolution, an ordinance must be enacted ordering the improvement to be made. City to the use of Gilfillan v Eddy, 123 Mo. 546. Third. In addition to the preliminary resolution and this ordinance, before letting any contract an estimate must be made by the city engineer, and the contract must be let within the estimate; that is, the contract price must not exceed the estimate. Fourth. Then the final ordinance making the levy and ordering the tax bill is all of the steps that the charter prescribes. (2) The following authorities hold that it is the charter that grants, limits and defines the power of the council, and that it can neither be added to nor taken from by any ordinance of the city. Heiskell v. Mayor, etc., 65 Md. 125; Barnert v. City of Paterson, 48 N. J. Law, 395; Rex v. Ashwell, 12 East. 22; Welch v. Bowen, 103 Ind. 252; 1 Beach on Public Corporations, secs. 492, 284; Cape Girardeau v. Fougeu, 30 Mo.App. 551; Dillon's Municipal Corporations, secs. 317-685-781. (3) Even if sections 8, 9 and 10 of the general ordinances of the city (as the court holds), do declare it necessary to pass an ordinance, ordering the improvement before advertising for bids, the council itself had a right to disregard such former ordinance, and by passing the ordinance, 1566, did disregard the same so far as this case is concerned. If these sections are correctly construed by the trial court, and either such sections, or ordinance number 1566, must fall, under the authorities it would be the former and not the latter. Dillon on Municipal Corporations [4 Ed.], p. 391, sec. 314; City of Kansas v. White, 69 Mo. 26; 1 Beach on Public Corporations, sec. 521; Ex parte Wolf, 14 Neb. 24; S. C., 14 N.W. 660; Rex v. Ashwell, 12 East. 22; Burlington v. Estlow, 43 N. J. Law, 13. (4) It is a general rule in this state, that while in these proceedings of special assessments all charter provisions must be substantially complied with by the city council, and all ordinances of the city substantially complied with by the contractor, agents and officers of the city, to entitle the contractor to establish a lien against the property of the citizen for the work, yet it has never been held that every formality and little detail must be complied with. On the contrary, it is expressly held that it is the substance and not the form to which the court looks, and hence, if there is a substantial compliance, it is sufficient. Sheehan v. Owen, 82 Mo. 458; City of St. Joseph v. Anthony, 30 Mo. 538; Cole v. Skrainka, 105 Mo. 303. (5) The advertising for bids before the passing of the ordinance ordering the work done, by the most strained and subtle reasoning, could never be held to affect in the slightest degree the substantial rights of the parties. Hence, it is, at best, a mere barren technicality, void of any pretense of substance, and can not impair the validity of the proceedings. State ex rel. City v. Birkhauser, 56 N.W. 303; State ex rel. Brown v. Town of Westport, 116 Mo. 582. (6) That the plaintiff was entitled to recover under the court's finding of facts and the undisputed evidence in the case, there can be no question. The proceedings are regular and under the express provisions of the charter and the rulings of the supreme court of this state, the council had the power to improve any street, avenue, alley or lane, or any part thereof. The wording of the statute is: "To improve any street, alley or lane, or any part thereof." Moran v. Lindell, 52 Mo. 229; Bacon v. Mayor, 86 Ga. 301. (7) The railroad company having bound itself to pave between its tracks and for two feet on each side, after the city should cause the balance of the street to be improved in the same manner as the balance of the street was improved by the city, the proceedings of the council must be construed as intending to pave that portion of the street that it was not the duty of the street car company to pave; and the fact that the company has not performed its duty constitutes no valid ground for objection of the property owner and is no defense to this action. Bank v. Haywood, 62 Mo.App. 550; Voght v. City of Buffalo, 31 N.E. (N. Y.) 340; Bacon v. Mayor, etc., 86 Ga. 301; S. C., 12 S.E. 580. (8) The council clearly had a right to rescind its action in setting aside the acceptance of Reilly's bid. Ross v. Stackhouse, 16 N.E. 501; Welch v. Bowen, 103 Ind. 252; Board v. Fullen, 111 Ind. 410. (9) All the city authorities concerned in this paving, the contractor and the abutting property owners, by their contract and acts construed the proceedings to intend the paving of only that part of the street which the railway company was not bound to pave. In the construction of a doubtful and ambiguous law, the contemporaneous construction of those who are called upon to act under the law and were appointed to carry its provisions into effect, is entitled to very great respect. Edwards v. Darby, 12 Wheaton, 206; State of Missouri ex rel., etc., v. Severance, Mayor, etc., 49 Mo. 401; United States v. Moore, 95 U.S. 760, p. 763; Brown, Adm'x, v. United States, 113 U.S. 568; Chesnut v. Shane's Lessee, 16 Ohio 599; 23 Am. and Eng. Ency. of Law, under Statutes, pp. 339 and 340, citing cases in nearly every state in the union. (10) The bank was rightly permitted to be substituted as relator. When not prejudicial to the adverse party, amendments should be freely allowed. Utley v. Tolfree, 77 Mo. 307. The name of one party plaintiff may be struck out and another substituted, even at the trial. Tayon v. Ladew, 33 Mo. 205. There is no error in admission of new party plaintiff after the institution of suit, where it is made to appear that the cause of action has been assigned to him for value by the original plaintiff. Wellman v. Dismukes, 42 Mo. 101; Todd v. Crutsinger, 30 Mo.App. 145. On the trial of an interplea if it is objected that the interpleader claims as cestui que trust, he may substitute his trustee as interpleader. Winklemaier v. Weaver, 28 Mo. 358. Where plaintiffs brought suit as a corporation, it is proper to permit them to amend by substituting their individual names and allege that they were co-partners when the suit was brought. Ward v. Pine, 50 Mo. 38.

James R. Vaughan and Barbour & McDavid for respondents.

(1) The council had no power to advertise for bids or to contract for said work until after the passage of such ordinance. In order to entitle the city or contractor to recover from the abutting property owner the expense of paving a street, or other local assessment, it must appear that there has been a fair and substantial compliance with all the conditions precedent, whether prescribed by charter or by ordinance. In other words, a material condition precedent prescribed by ordinance is just as binding on the city and the contractor as a provision of the charter, provided that it does not conflict with the charter. The ability of the city to create a lien on the property of the citizen is founded, not in any absolute or preexistent right, but rests exclusively in an adherence to the method prescribed by ordinance in pursuance of the authority contained in the charter. Cole v Skrainka, 105 Mo. 303; Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cargill, 60 Mo. 316; Clapton v. Taylor, 49 Mo.App. 126; Construction Co. v. Geist, 37 Mo.App. 512. (2) Before the city is authorized to contract for, or have constructed, any public improvement at the cost of the abutting property, it must comply with certain requirements prescribed by the charter and ordinance of the city. What are those requirements? The city council must first pass a resolution and have it published for two consecutive weeks in the paper doing the city printing. This resolution must define the character and extent of the work proposed to be done, and it must designate the street or portion thereof to be so improved. This resolution is merely a prerequisite preliminary step that must be taken before the council has any right to proceed; it is jurisdictional, and without it the city council would be absolutely powerless to issue a legal tax bill against private property; but while this resolution is jurisdictional it does not, within itself, give the council the right to contract for the improvement. The resident owners of the abutting property have ten days after the publication of this resolution in which to protest against the making by the city of the improvement contemplated by the resolution; if a majority of such owners do protest in manner provided, then the power of the...