Eyerman v. Blakesley

• Decision Date: 13 March 1883
• Citation: 13 Mo.App. 407
• Parties: GOTTLIEB EYERMAN, Appellant, v. HENRY BLAKESLEY ET AL., Respondents.
• Court: Missouri Court of Appeals

13 Mo.App. 407

GOTTLIEB EYERMAN, Appellant,

v.HENRY BLAKESLEY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 13, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

GEORGE A. CASTLEMAN, for the appellant.

EDMOND A. B. GARESCHÉ, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This is an action upon eleven special tax-bills issued to the plaintiff by the president of the board of public improvements of the city of St. Louis. A case relating to the same subject-matter, between the same parties, was before this court at a former term, and decided adversely to the plaintiff. This court there held that the tax-bill there sued on was void for two reasons: 1. Because the entire work required to be done under one ordinance, the improvement of Lynch Street from Second Carondelet Avenue to the Gravois Road, had been by the city engineer let in three distinct contracts. 2. Because the bill was made out against eleven lots as an aggregate tract, whereas there should have been a bill against each lot separately. With this decision against him the plaintiff seems to have cast about him to see whether he could procure anything to be done which would avoid its consequences, and enable him to get the money which he had earned. Since his original bill was made out and certified by the city engineer, the scheme and charter had gone into effect; the city had passed under a new municipal government, and the duties of the city engineer of the former government had been devolved upon the president of the board of public improvements. On the plaintiff's application, the latter officer made out and certified for him eleven distinct tax-bills, one against each of the eleven lots, charging each lot with its proportion of the cost of the entire work done under three contracts; that is, charging each lot with its proportion of the cost of the entire improvement. There is no question that the result which will be reached if these bills are held valid, will be precisely the result which would have been reached if the work had been let under one contract, and if a separate bill had been made out against each lot by the city engineer then in office.

The circuit court, trying the case without a jury, gave the following declarations of law, which drove the plaintiff to a non-suit:--

1. “The court declares the law to be, that ordinance No. 9391, given in evidence by defendant, fixes the extent of the work to be done on Lynch Street, to be the grading, curbing, guttering, macadamizing and cross-walks on said Lynch Street, from Second Carondelet Avenue to the Gravois Road; and the city engineer of the city of St. Louis had no authority to make contract 3301, given in evidence by the defendant, or any other contract, except for the whole work as provided for in said ordinance 9391, from Second Carondelet Avenue to Gravois Road.”

2. “The court declares the law to be that, inasmuch as it is shown by the evidence that the work mentioned in the petition and in the special tax-bills sued upon herein, was done and fully completed prior to October 15, 1875, and that on or before said date, city engineer of the city of St. Louis computed the cost of said work, the said special tax-bills herein sued upon, cannot be considered or received as evidence that the work and material charged in such bills have been furnished, or of the execution of said work, or of the correctness of the rates or prices or amounts thereof, or of the liability of the persons named therein as owners of the land, to pay the same; and as there is no other evidence of these matters, other than the said tax-bills, the judgment must be for the defendant.”

1. The first declaration of law thus given is in strict conformity with what was held by this court in the case between the same parties, which was here before (8 Mo. App. 311); and we have now to say whether we shall adhere to that decision in its full extent. The more recent case of Kemper v. King (11 Mo. App. 116), brought us face to face with the difficulties which might arise from the ruling that the city engineer has no power to subdivide a piece of work and let it out in distinct contracts. The testimony in the present case suggests another ground for doubting the propriety of that decision. A witness familiar with this class of city work, formerly a clerk in the city engineer's office, testifies distinctly that, where the work can be subdivided into small contracts, competition is increased, and the city engineer is able to let the work out at lower prices than where he is obliged to call for bids for the entire work in a lump; and this looks entirely reasonable. In a large city like St. Louis, it might be expedient for the council to order a very extensive improvement, such as the paving of a street three or four miles long. A rule which would oblige the city engineer, or other contracting officer, to let this work out in one entire contract, would place the city at the mercy of the large contractors, who, by combining, would be able to exact such terms as they might choose. It appears that the work embraced in these bills does not include excavating or filling, but it is merely such work as is known by the terms ““curbing,” “macadamizing,” “guttering,” “cross-walking,” etc.; and it was conceded in the opinion of Judge HAYDEN, in the case between these parties in 8 Missouri Appeals, that the difference in many cases between the cost of work of this kind done on one section of a street, and that done on another section, would be slight. It is thus plain that a rule which would compel the proper contracting officer of the city to let out every piece of work of this kind under a single contract, would work much greater injury to abutting property-owners than it would remedy. Confining ourselves to what we are called upon to decide for the purposes of this case, we, therefore, hold that a tax-bill is not void from the mere fact that the work ordered to be done by the ordinance was not let in one entire contract, where the bill is made out for the proportionate cost of the entire work which the lot ought to bear, as is now done in this case.

2. This brings us to the point whether the present bills were certified by the proper officer. It has been laid down by the supreme court that where there is an informality--a mistake as to form--in a tax-bill, it may be corrected by the engineer who was in office at the time when the original bill was issued, although he is out of office at the time when the correction is made. Kiley v. Cranor, 51 Mo. 541; Kiley v. Oppenheimer, 55 Mo. 374. The court, in the former case, quote, with approval, a ruling of the supreme court of New Hampshire, to the effect that amendments in the proceedings of town officers must be made by the persons who were in office when the proceedings were had, and that it is not necessary that such persons should be in office at the time of making the amendments. Gibson v. Bailey, 9 N. H. 168. It may be observed that the weight of judicial opinion seems to be decidedly against the propriety of allowing town officers to make amendments of the town records after they have gone out of office. See Dill. on Mun. Corp. (2d ed.), sect. 232, note 3. But,...