Ernst v. The City of Springfield

• Decision Date: 06 June 1910
• Parties: LOUIS P. ERNST et al., Appellants, v. THE CITY OF SPRINGFIELD et al., Respondents
• Court: Missouri Court of Appeals

130 S.W. 419

145 Mo.App. 89

LOUIS P. ERNST et al., Appellants, v. THE CITY OF SPRINGFIELD et al., Respondents

Court of Appeals of Missouri, Springfield

June 6, 1910

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

Judgment reversed and cause remanded. (with directions).

Henry C. Young for appellants.

(1) The false statements contained in the city engineer's report to the council, by which excessive charges for flint ledge lime rock and earth excavation were sought to be created against the property of appellants, and so made by the engineer with full knowledge on the part of the defendant Huff, of their material falsity, constitute such fraud as to render the taxbills void. Derby v. Donahue, 208 Mo 684; Mill Co. v. Sugg, 206 Mo. 148; White v. Reitz, 129 Mo.App. 307; Baird v. Grannis, 208 Mo. 426; Brokerage Co. v. Gates, 190 Mo. 391; Hamlin v. Abell, 120 Mo. 203; Bishop v. Seal, 87 Mo.App. 261; Lovelace v. Suter, 93 Mo.App. 429; Chism v. Schipper, 2 L. R. A. 544; Edwards v. Hartshorn, 1 L. R. A. (N. S.) 1050; State ex rel. v. Cartwright, 122 Mo.App. 267; Serrano v. Commission Co., 177 Mo.App. 199. (2) Since it is impossible to separate with even approximate accuracy the illegal overcharges from the taxbills, the whole assessment is necessarily illegal and void. Hoag v. Ward, 186 Mo. 325; Hallett v. Bond Co., 90 P. 683. (3) The inspector, Mr. Eddy, was not properly appointed by the council, was not sworn in as an inspector and was not a city officer. Weisner v. Bank, 106 Mo.App. 668; Nevada v. Eddy, 123 Mo. 540; Heman v. Farrish, 97 Mo.App. 377; Akers v. Kolkmeyer, 97 Mo.App. 520; State ex rel. v. Washburn, 167 Mo. 680; Trenton v. Collier, 68 Mo.App. 492; Wheeler v. Poplar Bluff, 149 Mo. 36.

W. D. Tatlow, Barbour & McDavid for respondents.

(1) The superficial and crude investigation by some members of the council long after the sewer had been completed and filled up was unauthorized and void. Rogers v. Rehard, 122 Mo.App. 44; Board of Education v. Surety Co., 183 Mo. 182; McGregor v. Construction Co., 188 Mo. 622; McCormick v. St. Louis, 166 Mo. 326; Williams v. Railway Co., 112 Mo. 487; Whitworth v. Webb City, 204 Mo. 599; Reilley v. Albany, 112 N.Y. 32; Joplin ex rel. v. Freeman, 125 Mo.App. 722. (2) In this case the evidence conclusively shows that all the proceedings were regular and that the work was done in substantial compliance with those proceedings, and the court has so found in its judgment rendered in the case. State ex rel. v. Flad, 26 Mo.App. 503; Dickhaus v. Olderheide, 22 Mo.App. 79; Johnson v. Duer, 115 Mo. 382; Porter v. Paving Co., 214 Mo. 22; Treat v. Chicago, 130 F. 444. (3) The trial court deducted the excessive flint allowance, offset it against the accrued interest on the correct amount due on the taxbills and rendered judgment in favor of the defendant contractor for the face of the respective taxbills. In an action at law this finding of facts is conclusive. Platte City v. Paxton, 124 S.W. 531; Fruin v. Meredith, 122 S.W. 1113. (4) The inspector was appointed in the regular way. Nothing to the contrary is shown. He is in no sense a city officer. He does not draw an annual salary, nor is he appointed for a definite term. Akers v. Kolkmeyer, 97 Mo.App. 528; Hilgert v. Paving Co., 107 Mo.App. 385; Jones v. Plummer, 137 Mo.App. 337. (5) When the court reduces the amount of taxbills because found to have been issued for too large an amount, the interest or penalty provided in the taxbills must be allowed on the balance of the taxbills after making the proper reductions. Neill v. Ridge, 220 Mo. 256; Neeman v. Smith, 60 Mo. 295; Perkinson v. Schnaake, 108 Mo.App. 261.

OPINION

NIXON, P. J.

--This is an action in equity seeking relief against the enforcement of certain taxbills issued for the construction of a sewer in the city of Springfield, Missouri, and asking that said taxbills be canceled and set aside as being a cloud on the title of the property of appellants. The grounds of relief are for fraudulent practices set forth in the petition.

The sewer in question is in sewer district No. 5 of said city, which is a city of the third class. It is claimed that the advertisements for bids were irregular and void; that no estimate was made of the cost of construction of the sewer prior to the making of the contract; that no plans or specifications were prepared and submitted to the council as required by the ordinances of the city; that the taxbills were for the cost of flint rock which was never excavated by the contractor and that said taxbills are gross over-charges for the work actually performed; that the appellants are the owners in severalty of one or more lots and tracts of land situated within the sewer district and against whom the taxbills were issued for the construction of the sewer. The defendants are the city clerk and John Huff, the contractor.

The bid of John Huff for the construction of the sewer was made on November 17, 1906, and the contract was entered into between him and the city for the construction of the sewer on the 19th day of November, 1906.

Section 98 of the charter of Springfield is as follows: "As soon as any district shall have been completed, the city engineer or other officer having charge of the work shall compute the whole cost thereof and shall apportion the same against the lots or pieces of ground exclusive of the improvements in proportion to the area of the whole district, exclusive of public high ways, and such officer shall report the same to the council by bill or otherwise and the council shall thereupon levy and assess a special tax by ordinance against each lot or piece of ground within the district in the name of the owner thereof."

On the 16th of January, 1907, the city engineer, C. E. Phillips, presented to the city council a statement in which he reported that the sewer had been completed and that the total cost amounted to $ 4063.33, and that the same had been computed by him and apportioned according to law. In this report he included a charge for 16,357 feet of flint rock, charged at 12 1/2 cents a foot, making a total of $ 2044.62.

Section 585 of the ordinances of the city of Springfield relating to public improvements is in part as follows: "All work done under contract entered into under the provisions of this chapter shall be done and carried on under the supervision and direction of the city engineer and street committee, who shall personally inspect the work as it progresses and see that the same is done in accordance with the plans, specifications, contract and ordinances governing the same. Each part thereof must be, by them, approved before that portion of the work next to follow is commenced."

Sections 648 and 649 of the ordinances are as follows:

"Sec. 648. All work done under the provisions of this article shall be carried on under the direction of the engineer and sewer committee, and shall be done in accordance with the plans, specifications, rules and regulations on file in the office of the engineer, and in accordance with the contract and ordinances governing the same.

"Sec. 649. The word 'engineer' as herein used shall mean the party designated as such by the city council who shall have charge of all work done under the provisions of this article to inspect and superintend the same, and, subject to the approval of the sewer committee and the city council, may appoint the necessary assistants to enable him to carry on the work he may have in hand."

The contract entered into for the construction of the sewer contained among others the following provision: "The word engineer as herein employed, shall be construed to mean such person as shall be designated by the city council, whose duty it shall be to superintend the work in all its details, pass upon, and reject such material as may not be in conformity with these specifications, designate when the work shall begin, and superintend construction, pass upon all questions as to the intent and meaning of these specifications. The engineer, subject to the approval of the sewer committee, may appoint, and place upon the work, such inspectors as he may see fit, fully authorized to act for him in his absence."

The contract also contained the following provisions as to rock excavation:

"Whenever rock is encountered in excavating the trenches, it shall be stripped of earth in sections of not less than fifty feet in length, and the engineer duly notified that he may measure or cross-section the same. All rock removed before such measurement is made, or rock more than six inches below the grade of the bottom of the trench, will not be allowed for and estimated.

"The rock shall be taken out a width one foot greater than the external diameter, and six inches below the grade of the outer curved bottom of the sewer. The trench shall then be filled up to the required grade and shape with proper material as the engineer may direct.

"Only such ledge rock, limestone, as requires blasting for removal shall be estimated as rock excavation, and will be paid for by the lineal foot, depth of earth excavation to cease where the rock excavation begins. Well defined ledges of flint will be paid for at one-half the price of rock excavation."

C. E Phillips was the city engineer and R. S. Eddy was appointed as inspector. R. S. Eddy testified in part as follows: "I was appointed inspector by Mr. Phillips, the engineer. I had never been inspector on any other job; that was my first job and I have never had any other job of the kind since. As inspector, I was not sworn to perform any duty. I never had any commission of any kind or description; no commission was issued to me under the authority of the city. The reason Mr. Phillips employed me was because I asked him if...