Gist v. Rackliffe-Gibson Consruction Co.

• Decision Date: 21 December 1909
• Citation: Gist v. Rackliffe-Gibson Consruction Co., 123 S.W. 921, 224 Mo. 369 (Mo. 1909)
• Parties: CARL GIST v. RACKLIFFE-GIBSON CONSTRUCTION COMPANY, Appellant
• Court: Missouri Supreme Court

123 S.W. 921

224 Mo. 369

CARL GIST v. RACKLIFFE-GIBSON CONSTRUCTION COMPANY, Appellant

Supreme Court of Missouri

December 21, 1909

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Reversed and remanded (with directions).

Fulkerson Graham & Smith for appellant.

(1) The petition did not state a cause of action. (a) The ordinance "fixes" the time at ten months. This is definite and obeys the mandate of the statute requiring the ordinance to "fix" the time within which such work shall be completed, etc. Then follows in the ordinance, a proviso clause extending the time (for the completion of the work) under certain conditions that may happen. Does this proviso nullify the main text? If the proviso is not in harmony with the main text, should not the proviso clause alone be construed as non-effective, and therefore mere surplusage? Why give to it, as the trial court has done, the effect of rendering the whole enactment void? For the validity of appellant's contract does not rest in any way upon the validity of the proviso clause in the ordinance. Appellant was not compelled to rely upon its provisions. Where a proviso is repugnant to or inconsistent with the purview of the act, the latter must prevail. Penick v. High Shoals Mfg. Co., 38 S.E. 973; Jackson v. Moye, 33 Ga 302; 26 Am. and Eng. Ency. Law (2 Ed.), p. 681; Dugan v Bridge Company, 27 Pa. St. 303; Ex parte Mayor's Court of Lancaster, 4 Clark 315; Barksdale v. Elam, 30 Miss. 694; St. Louis, J. & C. R. Co. v. Mathers, 71 Ill. 592; Benjamin v. McConnell, 46 Am. Dec. 474; Dugan v. Bridge Co., 67 Am. Dec. 464; Myers v. Davies, 49 Ky. (10 B. Mon.) 394; In re Webb, 34 How. Prac. 247. (b) Even though the court may find the proviso clause void, still that does not make void the entire ordinance. The ordinance itself would still be good. St. Louis v. Turnpike and Ferry Co., 14 Mo.App. 216; St. Louis v. Railroad, 89 Mo. 44; Lamar v. Weidman, 57 Mo.App. 507; Rockville v. Merchant, 60 Mo.App. 365; State v. Clark, 54 Mo.App. 36; State ex rel. v. Pond, 93 Mo. 635; State ex rel. v. Field, 119 Mo. 612; Railroad v. Evans Brick Co., 85 Mo. 307; State v. Bockstruck, 136 Mo. 335. (2) The designating notice was sufficient. It is all that is required by the statute.

K. B. Randolph for respondent.

(1) It is provided in Laws 1903, page 64, section 9, as follows: "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." If the language of the contract above quoted is in harmony with, and not inconsistent with the laws we have just quoted, then of course, this contract and the ordinance authorizing it, are both valid, and the demurrer, so far as that point is concerned, shall have been sustained. This question has been recently passed on by the Kansas City Court of Appeals. Rackliffe v. Peters, 136 Mo.App. 168. In that case it is held that the ordinance containing those provisions and consequently the contract following the provisions of the ordinance, is void in that it wholly fails to meet the requirements of the charter of the city. The positive direction of the charter is that the ordinance providing for the work must "fix" the time, and while there are several definitions of the word "fix," they are all in harmony; and we find that the word means, to make certain or sure; to permanently settle; to set a limitation upon. San Francisco Woolen Company v. Brickweddle, 60 Cal. 166; City v. King, 38 A.D. 610, 57 N.Y.S. 162. (2) The notice published by the board of public works and set forth in the petition, is not in compliance with sec. 8, Laws 1903, p. 63. The section requires that notice shall be published for five days, giving notice of the time and place when and where said board will hear objections to said proposed ordinance. The provision is not as to the proposed work, but as to the proposed ordinance. The terms of the ordinance should be briefly stated and a notice of what work was contemplated is not a notice as to a proposed ordinance. The property-owners might be interested as to whether or not the paving was to be laid to the established grade, as to whether or not the contractor was to have three months or ten months in which to complete the work, and as to what material was contemplated, whether brick, asphalt, macadam, etc. The property-owners might be satisfied as to some ordinances and not as to others. This section of the charter evidences that the ordinance must be prepared before the notice is published; then why are not the board of public works required by that section to give notice as to the ordinance and ask for objections to the ordinance, instead of simply saying that they intend by ordinance to improve the street by paving? This question all turns upon the proper construction of said section 8. City of Kirksville ex rel. v. Coleman, 103 Mo.App. 215.

LAMM, J. Valliant, C. J., concurs in result.

OPINION

In Banc

LAMM J.

Coming here from the circuit court of Buchanan county, this case was advanced for hearing In Banc.

St. Joseph is a city of the second class. In 1903 the General Assembly (Laws of 1903, p. 60) 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. Section 8 of the act ordains, among other things, 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 full plans and estimates of the costs 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 election 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 provides, among other things, 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 five-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 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...