Gratz v. City of Kirkwood

• Decision Date: 02 April 1912
• Citation: 145 S.W. 870
• Parties: GRATZ v. CITY OF KIRKWOOD et al.
• Court: Missouri Court of Appeals

145 S.W. 870

GRATZ v. CITY OF KIRKWOOD et al.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

Rehearing Denied April 16, 1912.

1. COURTS (§ 231)—JURISDICTION—COURT OF APPEALS—NATURE OF CONTROVERSY.

A suit to cancel tax bills issued by a city for the construction of a sewer, and to remove them as a cloud on title to real estate, does not involve title to real estate, and the subject-matter is within the appellate jurisdiction of the Court of Appeals.

2. APPEAL AND ERROR (§ 1009)—FINDINGS IN SUIT IN EQUITY—REVIEW.

The court, on appeal in a suit in equity, must determine for itself the weight of the evidence; but great deference will be paid to the findings of the trial court.

3. MUNICIPAL CORPORATIONS (§ 462)—PUBLIC IMPROVEMENTS—"ESTIMATE" OF COST— BIDS—CONTRACTS.

Where the estimate of the cost of the construction of a sewer totaled in gross a specified sum, and the details thereof were of service only as specifications of the particular work to be done, and a bid for the work totaled a less sum, though the price of some of the items exceeded the estimate thereof, and the amount allowed the bidder obtaining the contract for the work was less than the bid, the special tax bills issued for the cost of the work were not void, on the ground that the cost of the work exceeded the estimate, within Rev. St. 1909, § 9407, providing that no contract shall be entered into for any work for a price exceeding the estimate; an "estimate" meaning a rough calculation.

For other definitions, see Words and Phrases, vol. 3, pp. 2492, 2493.]

4. MUNICIPAL CORPORATIONS (§ 358)—PUBLIC IMPROVEMENTS—OFFICER IN CHARGE OF WORK—STATUTES.

Where the mayor of a city constructing a sewer took charge of the construction work and called to his assistance a competent engineer, who did work under the personal supervision

of the mayor, who was constantly in direct supervision of it, and the engineer submitted a report of the completion and cost of the work to the mayor, who in turn verified the computation and submitted it to the municipal authorities as his own computation, and they accepted and approved of it and ordered the issuance of tax bills, there was a substantial compliance with Rev. St. 1909, § 9385, requiring an engineer or other officer to have charge of the work, who shall compute the whole cost thereof; the mayor being an officer in charge of the work.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Laura C. Gratz against the City of Kirkwood and another. From a judgment for plaintiff, defendant Robert Wycoff appeals. Reversed and remanded.

This is a suit in equity in which by the petition it is charged that certain tax bills issued against the property of plaintiff for the construction of a sewer had been unlawfully issued by the city of Kirkwood in favor of one Robert Wycoff, the contractor who had done the work, and of which bills he is the holder. There are several grounds on which the validity of the tax bills is attacked, among others that the property against which the bills were issued is not lawfully within the corporate limits of the city of Kirkwood and hence not subject to assessment for payment of this sewer. The trial court found against plaintiff as to this, and she not appealing, it is out of the case. The grounds of attack on the tax bills, which the trial court sustained, are numbered in the petition as "second" and "third." The second ground is that the contract entered into between the city and defendant Wycoff exceeded the estimate of the engineer and is therefore void. The third ground is that the final estimate, computing the whole cost of building the system of sewers in the sewer district extension and apportioning this against the lots and parcels of ground described by plaintiff as her property, was not made by the city engineer or other officer having charge of the work as required by section 5970, R. S. 1899 (now section 9385, R. S. 1909). Plaintiff, charging that the tax bills constitute a cloud upon her title to the real estate, prays that they be ordered to be delivered up to her by the defendant Wycoff for cancellation, and that the city of Kirkwood and its officers be ordered to cancel them upon the records of the city. There is a further prayer that the ordinance which purports to include within the limits of the city of Kirkwood the property of plaintiff and other similar property, be held unreasonable, illegal and unauthorized. There is also the usual prayer for general relief.

It is sufficient to say of the answers of the defendants, that they deny that the tax bills are invalid on any of the grounds alleged, and also plead that plaintiff is estopped by her acts from contesting the bills.

The replies were general denials to these answers.

The cause coming on for hearing before the court and the evidence being heard, the court found for the defendants as to the validity of the ordinance extending the city limits, and held that the property of plaintiff was subject to taxation for city improvements, but found for plaintiff on the grounds designated in her petition and above referred to as second and third, and holding them void, entered up a decree canceling the tax bills. From this decree the defendant Wycoff has duly appealed to this court. In support of its conclusion on the objection designated as second, the court found that the price set forth in the contract entered into between the defendant city of Kirkwood and the defendant Wycoff for the building of the sewers in the sewer district "exceeded the estimate of the engineer for the building of said sewers, and is therefore void," that the board of aldermen had no jurisdiction to enter into the contract, and that the tax bills levied and issued against the plaintiff's property "were and are for that reason null and void." In support of its conclusions on the third objection the trial court found that the official estimate or computation, computing the whole cost of building the system of sewers in the district and apportioning the same against the lots and parcels of ground situated in the district, was not made by the city engineer or other officer having charge of the work, as required by section 5970, R. S. 1899 (section 9385, R. S. 1909), and that on that ground also the tax bills levied and issued against plaintiff's property for the proportionate cost of building the sewers were null and void.

We summarize the evidence. Plaintiff offered and read in evidence the ordinance establishing the sewer district. This ordinance provided that the cost of the construction of the sewers should be borne by the owners of property in the district; that the construction of the sewers should be awarded by contract under the provisions of the ordinance and other ordinances of the city. It was also in evidence that following the adoption of the ordinance an estimate of the cost of the proposed work was made by the city engineer and submitted to the board of aldermen. This estimate (which we shall refer to as the preliminary estimate) giving items, totals $4,812.20 as the estimated cost of the work.

The defendant Wycoff submitted his bid for doing the work, which he proposed to do at a total cost of $4,226.60. He itemized his proposed work, following the preliminary estimate as to quantities, the price of some of the items being as in that estimate, most of them below it, exceeding it only as to one item, namely "Class C," which was estimated at $5.00 per cubic yard, while his bid on it was $6.00, a difference of $10.00 on this one item over the price affixed to it in the preliminary estimate. There was no total or addition of the whole carried out on the bid, but the board of aldermen of the city, in accepting it, as appears by its minutes, referred to it as "bid of Robert Wycoff, $4,226.60." Accordingly a contract was entered into with Wycoff at the figures mentioned in his bid, the total contract price being $4,226.60. It was also in evidence for plaintiff "that by a resolution or order of the board of aldermen entered in its minutes the mayor was authorized to employ some competent man to superintend the construction of the sewers and one Charles E. Young was so employed by the mayor; that defendant Wycoff fully performed his part of said contract and completed the work therein contemplated in full compliance with said contract"; that when the work was completed, a computation of its quantities and cost was made by said Young and submitted to the mayor and by him submitted to the board, upon which computation the tax bills as issued were based. By this final measurement the total cost of the sewer was $3,451.88.

Going into particulars as to quantities and price, the quantity of excavation under "Class A," which included ordinary clays, earth and the like, as shown by the final and actual measurement, exceeded the estimate and the bid by 1,183.44 cubic yards, and the actual cost exceeded the estimated cost for this by $324.06; the amount of excavation actually done under "Class B," which included boulders, detached rock, etc., fell short of the estimate by 1,785 cubic yards and the actual cost fell short of the estimate and bid by $1,627.50; the actual amount of excavation under "Class C," which included large stones, solid rock excavation and the like, exceeded the estimate by 37.40 cubic yards and in cost by $234.40; the actual cost of the 8 inch sewer pipe was $225.28 below the estimate and $13.68 below the bid. The man-hole was carried through all the exhibits at the same figure, namely, $50; eight lamp post holes estimated at $15, amounting to $120, were bid on at $4, a total of $32, and in point of fact it turned out that only 7 holes were required, which at $4 amounted to $28, a difference of $92 below the estimate and $4 below the bid and contract. Twelve feet of 8 inch iron pipe was the same in all three exhibits, $18, but instead of there being one cubic yard of concrete...