Gibson v. Owens

• Decision Date: 25 March 1893
• Citation: 115 Mo. 258,21 S.W. 1107
• Parties: GIBSON v. OWENS.
• Court: Missouri Supreme Court

21 S.W. 1107

115 Mo. 258

GIBSON v. OWENS.

Supreme Court of Missouri, Division No. 1.

March 25, 1893.

MUNICIPAL CORPORATIONS — LOCAL IMPROVEMENTS — ESTOPPEL.

1. Rev. St. 1879, § 4781, gives power to cities of the second class to grade and improve their streets at such time and to such extent "as shall be provided by ordinance," and Laws 1885, p. 59, provides that no street in any city of the second class shall be graded or regraded, unless the property owners petition therefor, or the council provide for the assessment of damages. Held, that an ordinance for grading and macadamizing a previously graded street, where no change in the grade was actually made, need not provide for compensation, since the act of 1885 supplemented instead of repealed the former statute.

2. The grading of a street under one ordinance, and the macadamizing, curbing, and guttering of the street under another ordinance, passed the same day, may be done under one contract.

3. Under an ordinance requiring city contracts to be awarded to "the lowest reliable and responsible bidder who will sufficiently guaranty the performance of said work," a city engineer, who has selected the lowest bidder, may, where such bidder refuses to enter into contract, and give the guaranty required, award the contract to the next lowest bidder, without readvertising for bids.

4. Where all the jurisdictional steps which authorize a contract for improving a street have been taken, a property owner who has made no objection till the work has been completed and he has received the benefit of it, is estopped, when sued on a special tax bill therefor, to question the legality of the act of the proper officer in awarding the contract.

5. It is no objection to the validity of a contract for curbing and guttering a street that it requires the contractor to keep the same in good repair for six months after its acceptance, where, under the laws in force at the time, the cost of repairing curb and gutter is chargeable against abutting property.

Appeal from circuit court, Buchanan county; O. M. Spencer, Judge.

Action by William E. Gibson against James E. Owens on certain special tax bills. Defendant obtained judgment. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by MACFARLANE, J.:

This is an action on certain special tax bills for excavating Ninth street, preparatory to putting down macadam, and for macadamizing, curbing, guttering, and putting in cross walks. There were three different classes of tax bills in suit, to wit: (1) For grading the street exclusive of sidewalks; (2) for the grading of sidewalks; (3) for macadamizing, curbing, and guttering. The defendant was the owner of a large number of separate lots abutting on the street improved, and there were separate counts in the petition for each lot, and a separate count on each tax bill of each class. It was agreed by the parties that one tax bill of each class against one lot should be considered, and that all other bills correspond to some one of these three, except as to amount and description of property. The first count of the petition was on a tax bill for the cost of grading between two designated points, exclusive of grading the sidewalk thereon, as provided by ordinance No. 295, entitled "An ordinance to grade Ninth street," etc., approved August 27, 1887. The bill was signed by the city engineer, and was filed with the petition, and was the basis for the allegations of the petition. In the tax bill the engineer charged "that when such work was completed he computed the cost thereof, and apportioned it among the several lots to be charged therewith, according to the values thereof fixed by the city assessor, according to law, and charged each lot with its proper share of such cost; that after so apportioning and charging the cost of such work, he made out this special tax bill according to such apportionment and charge, in favor of William E. Gibson, the contractor, to be charged against lot 8 in block 2, in South St. Joseph addition to the city of St. Joseph; that said lot has been charged, as aforesaid, with $13.98, its proper share of such cost." The total cost of grading under the contract was $2,018.17. The second count was for grading for a sidewalk under the same ordinance, charged against the same lot, in favor of plaintiff, Gibson, and against defendant, Owens, the due proportion being $2.17 of a total cost of $156.85, which was apportioned according to the frontage of the lots. The third count was in favor of plaintiff for work done under ordinance No. 296, approved August 27, 1887, providing for "macadamizing, curbing, guttering," etc., Ninth street between the same points. In this bill it was charged that the cost of the work was apportioned among the several lots to be charged therewith according to the frontage of the property, and against said lot 8 the sum of $147.92, its proper proportion of the whole, which amounted to $2,877.92. Defendant, by answer, denied the validity of the tax bills upon the following special grounds: (1) That as the work of grading the street, and of putting down the macadam, guttering, curbing, etc., was directed by separate ordinances, both having reference to the same street, and passed and approved the same day, they required, as matter of law, that bids for such work should have been separately advertised, and that, bids having been asked for all the improvement, it rendered the tax bills all void. (2) That on bids so advertised for, Regan Bros. being the lowest bidders on the item of excavating, the awarding of the contract to Gibson was such a violation of law as to invalidate the tax bills. (3) That Sheridan, who was the lowest all-round bidder, refused to enter into contract with the city, or give bond as required by the law and ordinances, and the engineer had no power to award the contract to the plaintiff, without readvertising, and that such action was void. (4) That the contract contains a provision that the contractor, Gibson, should keep the curbing and guttering on said work in good repair and in proper position for six months after the acceptance of the work, which increased the cost, and rendered the tax bills void. (5) That both ordinances under which the work was done were void, as being in violation of the charter of the city pertaining to the grading of streets. The reply charged that Ninth street was dedicated to the city as a public highway in 1858, and that grades were established prior to 1885. It also charged that defendant, by his conduct, was estopped to deny the validity of the tax bill. It was shown upon the trial that St. Joseph was a city of the second class; that Ninth street was dedicated, and its grade established, prior to 1885; that the two ordinances were passed and approved on the 27th day of August, 1887, one for grading and the other for paving Ninth street; that each contained a section requiring the engineer to advertise for bids on the work required respectively by the ordinances; that the engineer advertised for bids for the work ordered under both ordinances together, received joint bids, and awarded the contract for all the work upon an estimate for doing it all. The facts charged in the answer, as above stated, were shown to be true in substance. There was no question as to the regularity in the assessment of benefits and apportionment of the cost. Upon the pleading and evidence the court found and rendered judgment for defendant, and plai...