Dunham Construction Co. v. City of Webster Groves

• Citation: 84 S.W.2d 183
• Decision Date: 02 July 1935
• Docket Number: No. 23127.,23127.
• Parties: DUNHAM CONSTRUCTION COMPANY, A CORPORATION, RESPONDENT, v. CITY OF WEBSTER GROVES, MISSOURI, A CORPORATION, APPELLANT.
• Court: Court of Appeal of Missouri (US)

84 S.W.2d 183

DUNHAM CONSTRUCTION COMPANY, A CORPORATION, RESPONDENT, v. CITY OF WEBSTER GROVES, MISSOURI, A CORPORATION, APPELLANT.

No. 23127.

St. Louis Court of Appeals. Missouri.

Opinion filed July 2, 1935.

Rehearing Denied July 16, 1935.

Appeal from Circuit Court of St. Louis County. — Hon. Fred E. Mueller, Judge.

REVERSED.

John A. Nolan for respondent.

(1) An act, as first enacted, with provisions of which it originally formed a part, should be considered in ascertaining its meaning, rather than other laws with which it may be grouped in Revised Statutes. Pierce City v. Hentchel, 210 S.W. 31; Timson v. Coke Co., 220 Mo. 580, 119 S.W. 565; Aloe v. Assn., 164 Mo. 675, 55 S.W. 993. (2) Section 13745, Revised Statutes 1929, is a general statute, couched in broad and comprehensive terms, and in its construction this fact must be kept in view. State ex rel. v. McQuillen, 246 Mo. 517, 152 S.W. 347. (3) The creation of a municipal corporation is an act of sovereignty. The corporation, or corporate entity, acts only through and by means of designated agencies, boards, councils and officers. These agencies created by state law are empowered to let contracts and authorize levy of taxes and the expenditure of public funds so raised. State v. Lichte, 226 Mo. 273, 126 S.W. 466; Heller v. Stremmel, 52 Mo. 309; State v. Dierkes, 214 Mo. 578, 113 S.W. 1077; 43 C.J., p. 490, Secs. 741-742; Sections 6911-12, 6834-6829, 6826-6821, 6808-6803, 6788-6905, 6899-6905, 6890-6897, R.S. Mo. 1929; Harrison v. Roberts, 145 Cal. 173, 78 Pac. 537; McDonald v. Dodge, 97 Cal. 112, 31 Pac. 909; Bowling Green v. Gaines, 123 Ky. 562, 96 S.W. 852. (4) The court, in construing a legislative act, should consider the previous state of the law and the evil present at the time of the passage of the act which it was intended to correct. The term "board" is a broad and comprehensive term, chosen to meet a particular situation. Kerens v. St. Louis Union Trust Co., 283 Mo. 601, 223 S.W. 645; Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159; City v. Christian Brothers, 257 Mo. 541, 165 S.W. 1057; Craig v. St. L. & S.F.R.R. Co., 248 Mo. 270, 154 S.W. 77.

Alva C. Trueblood for appellant.

(1) The courts cannot enlarge or change the scope of a statute. Stephens v. Gordon, 181 S.W. 73; Knisely v. Holtcamp, 181 S.W. 1007; 59 C.J., Sec. 569, p. 952. (2) A statute should be construed so as to ascertain and give effect to the legislative intent, and the conditions under which it was enacted and the purpose to be accomplished should be considered. Clark v. Kansas City, St. L. & C.R. Co., 118 S.W., l.c. 44; 59 C.J., Sec. 568, p. 948.

SUTTON, C.

This is an action to recover of the defendant, City of Webster Groves, the sum of $3000 and interest.

Defendant is a city of the third class. In June, 1931, the city council passed an ordinance providing for an election to vote on a proposition to issue bonds for the erection of a city hall. The election was held pursuant to the ordinance, and the issuance of bonds was authorized. The bonds were duly issued, and an annual tax was provided by ordinance sufficient to pay the interest on the bonds and provide a sinking fund for their payment at maturity. The city council advertised for two weeks in the Webster News Times, a newspaper published in said city, that it would, on October 30, 1931, receive bids for the construction of the city hall. The advertisement contained the following clause: "All bids shall be accompanied by certified check for $3000 to guarantee that the bidder, if successful, will enter into a proper contract for the performance of the work, and will give bond as may be required." Pursuant to such advertisement, bids were received from twenty-five contractors. The plaintiff's bid, in the sum of $52,700, being the lowest and best bid, the contract was awarded to it. The city council passed an ordinance authorizing the making of a contract with the plaintiff in accordance with its bid. Plaintiff declined to enter into a contract as required by its bid. Thereupon, the ordinance authorizing such contract was repealed, and the contract was relet to another bidder for $56,720, or $4020 in excess of plaintiff's bid, and the building was erected under the latter contract. Plaintiff requested the return of the $3000 deposited with its bid, but the request was refused, and plaintiff now sues to recover this amount. Defendant offered to prove that plaintiff's refusal was based on its inability to give bond, but this offer of proof was rejected by the court.

The trial, which was had before the court, without a jury, resulted in a finding and judgment for plaintiff for $3180, and defendant appeals.

Plaintiff rests its case on the theory that the contract tendered to the plaintiff by defendants was invalid, for the reason that no advertisement for bids was made under the provisions of section 13745, Revised Statutes 1929, Mo. St. Ann., Sec. 13745, p. 6519, as follows:

"No contract shall be made by an officer of this State or any board or organization existing under the laws of this State or under the charter, laws or ordinances of any political subdivision thereof, having the expenditure of public funds or moneys provided by appropriation from this State in whole or in part, or raised in whole or in part by taxation under the laws of this State, or of any political subdivision thereof containing 500,000 inhabitants or over, for the erection or construction of any building, improvement, alteration or repair, the total cost of which shall exceed the sum of ten thousand dollars, until public bids therefor are requested or solicited by advertising for ten days in one paper in the county in which the work is located; and if the cost of the work contemplated shall exceed thirty-five thousand dollars, the...