Gist v. Rackliffe-Gibson Const. Co.

• Decision Date: 21 December 1909
• Citation: 123 S.W. 921
• Parties: GIST v. RACKLIFFE-GIBSON CONST. CO.
• Court: Missouri Supreme Court

123 S.W. 921

GIST v. RACKLIFFE-GIBSON CONST. CO.

Supreme Court of Missouri.

December 21, 1909.

1. STATUTES (§ 184) — CONSTRUCTION — LEGISLATIVE INTENT.

Laws are presumptively passed in a spirit of justice and for the welfare of the community, and must be so interpreted, if possible, as to further that purpose, and the court will endeavor in interpreting a statute to save it from the charge of being unreasonable.

2. STATUTES (§ 184) — CONSTRUCTION — LEGISLATIVE INTENT.

Where, in the construction of a statute, the intent of the Legislature is clearly manifest, the courts are relieved from searching out the reason of the law, and must content themselves with the words thereof without inquiry into its reasons.

3. MUNICIPAL CORPORATIONS (§ 304)—PUBLIC IMPROVEMENTS—ORDINANCES—VALIDITY —"FIX."

Under Laws 1903, p. 64, § 9 (Ann. St. 1906, § 5747-9), providing that ordinances for public improvements shall fix the time within which the work shall be completed after the contract shall be awarded, and that the council may give its consent for an extension of the time only on the contractor requesting it and consenting to a reduction of the price, an ordinance declaring that the work shall be completed within a specified time after the award of the contract provided that days' work lost through injunction, bad weather, general strikes, etc., shall be added to the number of days above specified, is not invalid for failing to fix the time for the completion of the work, the word "fix" merely meaning a rule by which the time is to be determined.

4. STATUTES (§ 207) —PROVISO—EFFECT.

Where a proviso is repugnant or inconsistent with the purview of an act, the latter prevails.

5. MUNICIPAL CORPORATIONS (§ 303)—ORDINANCES —INVALID IN PART—EFFECT.

The invalidity of a part of an ordinance or a contract under it embodying its terms does not necessarily make the whole void, unless made void by statute.

6. MUNICIPAL CORPORATIONS (§ 303)—ORDINANCES —INVALID IN PART—EFFECT.

The invalidity of the proviso in an ordinance for a public improvement that days' work lost through injunction, bad weather, strikes, etc., shall be added to the number of days specified for the completion of the work, because in conflict with Laws 1903, p. 64, § 9 (Ann. St. 1906, § 5747-9), requiring every ordinance to fix the time within which the work shall be completed, does not render the entire ordinance invalid, where the ordinance with the proviso eliminated is complete, and hence, where a contractor did not ask anything on the strength of the proviso equity could not interfere because of its presence in the ordinance and the contract for the work.

7. MUNICIPAL CORPORATIONS (§ 294)—PUBLIC IMPROVEMENTS—PROCEEDINGS—NOTICE.

The notice required by Laws 1903, p. 62, § 8 (Ann. St. 1906, § 5747-8), authorizing a street improvement to be initiated either by the board of public works or by a petition of the resident owners of the abutting property, and requiring notice to persons interested of the time and place of hearing by the board of public works of objections to the proposed ordinance for the improvement, etc., need not state the terms of the proposed ordinance as to grade, material, etc.

8. CONSTITUTIONAL LAW (§ 290)—DUE PROCESS OF LAW—SPECIAL ASSESSMENTS — NOTICE — VALIDITY.

Publications of notice to the property owners and opportunity to be heard before the tribunal ascertaining the facts, and acting in a special assessment procedure in levying a special assessment for a street improvement, satisfies Const. art. 2, § 30 (Ann. St. 1906, p. 166), providing that no person shall be deprived of his property without due process of law, special assessments being referable to the taxing power.

In Banc. Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Carl Gist against the Rackliffe-Gibson Construction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fulkerson, Graham & Smith, for appellant. K. B. Randolph, for respondent.

LAMM, J.

St. Joseph is a city of the second class. In 1903 the General Assembly (Laws of 1903, p. 60 [Ann. St. 1906, §§ 5747-1 to 5747-19]) passed an act creating a board of public works in cities of that class and giving such board great power along the line of supervising, grading, paving, and cleaning streets and alleys, etc.

Among other things section 8 of the act ordains that: "The board, of its own motion, if approved by all of its members, may, and upon presentation of a petition, signed by the majority in front feet of the resident real estate owners, required by law, shall prepare an ordinance for the improvements therein contemplated, and submit such ordinance, together with a copy of the petition for such improvements, if there be a petition, together with all objections thereto that may have been filed with the board, and accompanied with such recommendations as it may desire to make to the common council, and also transmit to the common council, with the proposed ordinance for any improvements, the full plans and estimates of the cost of the improvements contemplated, provided that before said board shall, on its own motion, or on the petition of others, submit an ordinance for the making of such improvements it shall, by an advertisement in the official paper of the city publish, (sic) for five days, notify all persons interested of the time and place, when (sic) and place, (sic) when and where the said board will hear objections to such proposed ordinance, at which time and place the board shall attend and hear and pass upon all objections that may be presented. And if the board shall overrule such objections, then the matter shall be continued for fifteen days, and within that time the owners of a majority of front feet abutting on the part of such highway or public place sought to be improved and owned by residents of said city, shall have the right to select, in writing, any material they may desire to be used in making said improvement, and such selections only shall be embraced in the ordinance which the board may recommend, and no ordinance specifying any material other than that so selected shall have any validity, provided that the material so selected shall be reasonably available. If no such selection shall be made by the property owners, then the board may recommend and the city council pass an ordinance for doing the work with any desired material."

Section 9, among other things, provides as follows: "The common council shall not give its consent by ordinance, resolution or otherwise more than twice for any extension of the time for the completion of the work under any contract for street improvement, nor for a longer period than four months each time, and not then, unless the contractor, together with the securities on his bond, shall first file with the comptroller their written requests for such extension, and consenting for each extension asked for that the contract price for the whole work covered by the contract shall be reduced five per cent., and if such extension is granted, it shall operate as a reduction of the contract price for the whole work in conformity with the consent so given. Every ordinance for public improvements of any kind to be let to the lowest and best bidder shall fix the time within which such work shall be completed after the contract therefor shall be awarded. Nor shall any extension for the completion of a contract for public improvements be granted after the expiration of the time named in the ordinance authorizing the work, except that where a first extension is made before the expiration of the time for completing the original contract a second extension may be granted before the first extension expires— all upon the terms and conditions in this section provided."

At a certain time the board of public works of St. Joseph, desiring to improve Twenty-Second street from a designated point at the south, viz., Highway Bridge, to the north line of a street known as "Frederick," caused to be published the 5-day notice provided by said section 8, such notice having come to be called a "designating notice." Such designating notice was as follows (matter pertinent to other pending improvements being omitted): "Office of the Board of Public Works, City of St. Joseph. Public notice is hereby given that all parties interested are required to take notice that the board of public works, of its own motion, approved by all of its members, will as soon as practicable, after five (5) days from May 21st, 1907, cause to be introduced in the common council of said city of St. Joseph, Missouri, ordinances providing: * * * `For improving Twenty-Second street from the south end of the Highway Bridge, located between Douglas street and Grand avenue, to the north line of Frederick avenue, by preparing the roadway, alleyways and sidewalk space, constructing new curb, recutting or resetting the old curb, where necessary, laying or relaying of the sidewalks, gutters and crosswalks, where necessary, and paving the roadways and alleyways, excepting between the rails and eighteen (18) inches outside thereof of the St. Joseph Railway, Light, Heat and Power Company's tracks.' And that the board will meet at its office in the city hall, St. Joseph, Mo., Monday, May 27th, 1907, at 10 o'clock a. m. to hear and determine any objections that may be offered to said motion, work and ordinance."

The proper time having elapsed and due steps having been taken, an ordinance was prepared by the board and submitted to and passed by the common council of St. Joseph for the improvement of said street. Said ordinance provided, among other things, as follows: "And that the work be completed within ten months after the contract shall be awarded, provided the days' work lost in consequence of injunction or court proceedings, bad weather, work which is being done by other persons over whom the contractor has no control, organized general strikes or...