Dickey v. Holmes

• Court: Kansas Court of Appeals
• Writing for the Court: ELLISON, J.
• Citation: Dickey v. Holmes, 109 Mo. App. 721, 83 S.W. 982 (Kan. App. 1904)
• Decision Date: 28 November 1904
• Parties: WALTER S. DICKEY, Respondent, v. JAMES T. HOLMES et al., Appellants

83 S.W. 982

109 Mo.App. 721

WALTER S. DICKEY, Respondent, v. JAMES T. HOLMES et al., Appellants

Court of Appeals of Missouri, Kansas City

November 28, 1904

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED.

Judgment reversed.

Gage Ladd & Small for appellants.

(1) The provisions of the general ordinance requiring the specifications to be made out and on file before the advertisement was published, and that the specifications should state the amount of security or bond that would be required of the contractor, were mandatory, and therefore defendants' instructions numbered 2, 3, 4 and 5, should have been given. Desoto v. Showman, 100 Mo.App. 323; Leach v. Cargill, 60 Mo. 316; Kiley v Oppenheimer, 55 Mo. 374; McQuiddy v. Brannock, 70 Mo.App. 535; Heidelberg v. St. Francois Co., 100 Mo. 69; St. Louis v. Gleason, 89 Mo. 67; s. c., 93 Mo. 33; Farm Co. v. District, 51 Mo.App. 549; Mazet v. Pittsburg, 137 Pa. 548; Galbreath v Newton, 30 Mo.App. 394; Guinotte v. Egelhoff, 64 Mo.App. 366; Electric Co. v. Los Angeles, 118 F. 753. (2) The alterations in the specifications made after the award was made, referred to in defendants' instruction numbered 9, and shown in evidence, rendered the contract entered into a different contract from the one on which the bids were received, as an examination of the contract will show, so that the contract made was really never advertised at all and certainly is void. That instruction also should have been given. (3) The provision in the contract, that Kansas City brick alone should be used, if they could be obtained at the same price as brick of foreign manufacture, tended to create a monopoly, and prevent the work from being let to the lowest bidder. Schoenberg v. Field, 95 Mo.App. 241. The contract with this provision in it, being confirmed by ordinance, makes the provision the same as if contained in the ordinance for the work. Childers v. Holmes, 95 Mo.App. 158; Ayers v. Schmohl, 86 Mo.App. 349. (4) The charter requires that district sewers "shall be of such dimension, material and character as shall be prescribed by ordinance." The ordinance for this sewer in connection with the plans, which it may be admitted were in existence when the ordinance was passed, probably described in a general way the dimensions and materials of the sewer, but can not be said to describe the character of the sewer. The word "character" in the connection in which it is used in the charter, means quality or nature of the work, which depends upon the workmanship and all the little details relating to the finish as well as the dimensions and materials. The evidence showing that the specifications were not made until long after the ordinance was passed, shows that the ordinance failed to prescribe the character of the sewer, as required by the charter and defendants' instructions numbered 1 and 6 should have been given.

Karnes, New & Krauthoff for respondents, filed lengthy argument.

OPINION

ELLISON, J.

This action has for its object the enforcement of a lien of two special taxbills against the property of defendants. The judgment in the trial court was for plaintiff.

It appears that the bills were issued for the building of district sewers in Kansas City. The defendant assails the validity of the ordinance under which the work was done. That ordinance was passed by the city council and thereafter, on April 27, 1897, was approved by the mayor. The charter of the city empowers the council to do public work by letting it to the lowest and best bidder as shall be prescribed by ordinance. Sec. 12, art. 17. The charter empowers the city council, with the approval of the board of public works, to cause district sewers to be built; and such sewers "shall be of such dimensions, material and character as shall be prescribed by ordinance." Sec. 10, art. 9.

Under such provision two things are prominently necessary to the validity of taxbills against the property of the citizen for building a district sewer. First, there must be an ordinance ante-dating the proceedings: that is, the ordinance is the first action upon which the proceedings are had. And such ordinance must prescribe the dimensions, material and character of the sewer. Second, a public letting of the contract after proper notice. [Galbreath v. Newton, 30 Mo.App. 380; DeSoto ex rel v. Showman, 100 Mo.App. 323, 73 S.W. 257; Heidelberg v. St. Francois Co., 100 Mo. 69, 12 S.W. 914; Mazet v. Pittsburgh, 137 Pa. 548, 20 A. 693.] These are matters of necessity which must precede all else. It is by thus prescribing by ordinance the material, dimension and character of the work that it is possible to let it publicly to the lowest bidder. It is the height of absurdity to talk of prescribing these things by an ordinance subsequent to letting the work by competitive bidding. In this case the dimension of the sewer and a part of the material thereof were prescribed in the face of the ordinance; but the character of the work and a great part of the material and the specific kind of material, were, by the ordinance, left to lengthy specifications, referred to in the ordinance as on file with the board of public works. An ordinance may be valid without incorporating all its provisions in its face; that is, it may refer, for a part of its provisions, to specifications on file in some designated public place where they may be inspected like the ordinance itself could. [Galbreath v. Newton, 30 Mo.App. 380.] The specifications are adopted and referred to by the legislative body and are made part of the ordinance itself. Manifestly they must be in existence at the time the ordinance is adopted. In this case the evidence disclosed that there were no specifications on file with the board of public works, or, indeed, in existence at all, at the time the ordinance was adopted by the city council. They were made out and filed some time afterwards, and several days after the beginning of the publication of the letting of the work, and only two or three days before it was let. It is, therefore, apparent that work was let for building a district sewer without its material and character being prescribed by an ordinance as required by the charter. [Railroad v. Chicago, 174 Ill. 439, 51 N.E. 596; Copnett v. City of Yonkers, 83 Hun 178, 31 N.Y.S. 659.] The taxbills are void and defendants' demurrer to the evidence, embraced...