Gibson v. Owens
| Decision Date | 25 March 1893 |
| Citation | 21 S.W. 1107,115 Mo. 258 |
| Parties | Gibson, Appellant, v. Owens |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.
Reversed and remanded.
Porter & Woodson and Huston & Parrish for appellant.
(1) The title to the streets vests in the city as trustee of the public with power to improve the same at the cost of the locality fixed by law. This is the exercise of the sovereign taxing power and is one with which the courts have nothing to do. Cooley on Taxation [1 Ed.] secs. 416, 452; Keith v Bingham, 100 Mo. 300; Farrar v. St. Louis, 80 Mo. 379; Garett v. St. Louis, 25 Mo. 505. (2) The general rule obtains that tax bills are valid liens against the property, unless, in some material matter vitally affecting the rights of the local property owner, the law authorizing the taxation has been disregarded. Sheehan v Owens, 82 Mo. 458; Cole v. Skrainka, 105 Mo 309; City of St. Joseph v. Farrell, 106 Mo. 442. (3) In the absence of any charge of improper motive or collusion, an advertisement presumably in the interest of an all around completion of the work for the lowest obtainable price ought not to prejudice the men who in good faith did the work. Alberger v. City, 20 A. 988; Matter of Ingraham, 64 N.Y. 310; Neenan v. Smith, 60 Mo. 292. (4) Bids having been advertised for and received as an entirety no division could be made in the award of the contract. (5) Sheridan having refused to comply with his contract, the contract was rightly awarded to the next lowest responsible bidder. Ross v. Stackhouse, 16 N.E. 501; State, etc., v. McGrath, 91 Mo. 386; Sheehan v. Owens, 82 Mo. 458. (6) The vality of the tax bill is not affected by the provision of the contract requiring the contractor to keep the curbing and guttering in repair for the stated period. (7) Under the pleadings and evidence in this case the defendant is estopped to deny the validity of the tax bills. Sheehan v. Owens, 82 Mo. 464; Collins v. Camden, 27 N.J.Eq. 294; 2 Dillon on Municipal Corporations [4 Ed.] sec. 924; Ross v. Stackhouse, 16 N.E. 501; State v. Morristown, 34 N. J. Law, 445; State v. Patterson, 40 N. J. Law, 244; Wright v. Tacoma, 19 P. 42; Ritchie v. Topeka, 38 Kan. 386; People v. Utica, 65 Barb. 1; 2 Herman on Estoppel, secs. 1221, 1362.
Hall & Pike for respondent.
(1) The grading of the street was ordered by a distinct ordinance; was by the law chargeable against a separate and distinct taxing district and on a distinct and independent basis, and was thus charged in the tax bills sued on in this case. (2) The owners of the abutting lots were entitled to have the damages ascertained and paid in accordance with the act of 1885. "When the statutory provision relates to prior proceedings immaterial in themselves, but contains negative terms, either expressed or implied, then such negative terms clearly show a legislative intent to impose a limitation, and therefore the statute becomes imperative and requires strict performance in the mode or manner prescribed." Hersford v. City of Omaha, 4 Neb. 351; See 1 Kent's Commentaries, 465; Bladen v. Phildelphia, 60 Pa. St. 464; Pearce v. Monice, 2 Adolphus & Ellis, 96. (3) All the tax bills in suit are void because the two improvements were let together as one improvement. The action of the city engineer in entering into a contract with plaintiff after having awarded the contract to Sheridan, because of the latter's refusal to sign the contract, was contrary to the charter and ordinances of the city, and the contract thus entered into was null and void. (4) These provisions of the charter and ordinances were mandatory, not directory, and a contract entered into by the city authorities contrary to them, was null and void. Burroughs on Taxation, p. 480; Wells v. Burnham, 20 Wis. 112; Kneeland v. Milwaukee, 18 Wis. 411; 1 Dillon on Municipal Corporation, sec. 466, and note; Dickinson v. Poughkeepsie, 75 N.Y. 65; Nash v. St. Paul, 11 Minn. 174; Fulton v. Lincoln, 9 Neb. 358; State ex rel. v. Barlow, 48 Mo. 17. (5) The tax bills in suit are a tax. One is not estopped to deny the validity of a tax by mere silence. State ex rel. v. Railroad, 74 Mo. 163; Cameron v. Stephenson, 69 Mo. 379. There is no estoppel in this case. Keane v. Klanosman, 21 Mo. 485; Coggeshall v. Des Moines, 41 N.W. 617; Galbreath v. Newton, 30 Mo.App. 394; Perkinson v. McGrath, 9 Mo.App. 26; Tone v. Columbus, 39 Ohio St. 281.
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 number 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 allegation 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 number 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 bidder 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 refusing to enter into contract with the city, or give bond as required by the law and ordinances, 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 twenty-seventh 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 plaintiff appealed.
I. It is insisted as an objection to the validity of the tax bill for "grading" that ordinance number...
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