Gratz v. City of Kirkwood
| Decision Date | 07 April 1914 |
| Citation | 166 S.W. 319,182 Mo.App. 581 |
| Parties | ANDERSON GRATZ et al., Appellants, v. CITY OF KIRKWOOD et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W. McElhinney and Hon. G. A. Wurdeman, Judges.
AFFIRMED.
Judgment affirmed.
Davis Biggs for appellants.
(1) In a proceeding to levy a special tax by a municipal corporation, where the owner's property is taken without his consent, every provision of the law made for that purpose must be strictly followed or the tax bills will be declared void. Municipal Securities Company v. Gates, 130 Mo.App. 552; City of Kirksville v. Coleman, 103 Mo.App. 215; Barber Asphalt Paving Co. v O'Brien, 128 Mo.App. 267; Excelsior Springs v Ettison, 120 Mo.App. 215; Cole v. Skrainka, 105 Mo. 309; DeSoto v. Showman, 100 Mo.App. 323. (2) (a) There was an absolute failure to comply with the mandatory provision of Sec. 9407, R. S. 1909, requiring the city engineer or other proper officer to make an estimate of the cost of the improvement. Weisner v. Bank, 106 Mo.App. 672; Rich Hill v. Donnan, 82 Mo.App. 386; Boonville v. Rogers, 125 Mo.App. 149; Nevada v Eddy, 123 Mo. 546; DeSoto v. Showman, 100 Mo.App. 323; Wheeler v. Poplar Bluff, 149 Mo. 36; Boonville v. Stevens, 95 S.W. 314; Kirksville v. Coleman, 103 Mo.App. 215; Paving Company v. O'Brien, 128 Mo.App. 278; Erie v. Brady, 150 Pa. 462; Probst v. Girard Investment Company, 137 S.W. 42; Walsh v. Bank, 139 Mo.App. 647; Akers v. Kohlmeyer, 97 Mo.App. 528. (b) The duties of a public officer must be performed by him and not by an employee or a private citizen. Competent persons may be employed as clerks and assistants, but their work must be directed and the results thereof officially certified by the officer. Weisner v. Bank, 106 Mo.App. 668; Rich Hill v. Donnan, 82 Mo.App. 386; Boonville v. Rogers, 125 Mo.App. 142; Nevada v. Eddy, 123 Mo. 546; Sedalia v. Donohue, 190 Mo. 407. (3) Conceding the estimate filed to be a compliance with the law, the contract price exceeded the estimate, which is likewise contrary to the express provisions of the statute and equally vital to the validity of the tax bill. See cases cited under Point II (a) supra. (4) In view of the fact that the streets and alleys committee had the authority under the ordinances to change the grade, form and plan of the improvement, either before or after the work commenced, this rendered the plans and specifications so indefinite and uncertain as to stifle competition and render the ordinances and tax bills void, and the fact that no change was afterwards made does not give validity to an ordinance already void. Excelsior Springs v. Ettison, 120 Mo.App. 225; Kirksville v. Coleman, 103 Mo.App. 218; City of Trenton v. Collier, 68 Mo.App. 483; Jones v. Plummer, 137 Mo.App. 344; Grant v. Barber, 135 Cal. 185; Dickey v. Holmes, 109 Mo.App. 721; Municipal Securities Company v. Gates, 130 Mo.App. 552; Poplar Bluff v. Bacon, 144 Mo.App. 480; City of Independence v. Knoepper, 134 Mo.App. 601; Wells v. Bernham, 20 Wis. 112; Anderson v. Fuller, 51 Fla. 380; 2 Paige on Taxation by Assessment, Sec. 821, p. 1398; Foss v. Chicago, 56 Ill. 354; Lakeshore Railroad v. Chicago, 144 Ill. 391; McChesney v. Railroad, etc., 200 Ill. 146; Glover v. People, 201 Ill. 545. (5) The validity of the contract ordinance with Winter must be determined as of the day it was entered into. The ordinance of a city, like a statute, cannot be given validity by what happened to be done under it. It is judged by what was possible to be done under it. Ramsey v. Field, 115 Mo.App. 626; St. Louis v. Allen, 53 Mo. 55; Brown v. City of Denver, 7 Colo. 305; Dexter v. Boston, 176 Mass. 247; Collins v. New Hampshire, 171 U.S. 33; Minnesota v. Barber, 136 U.S. 313.
T. K. Skinker for respondents.
(1) The preliminary estimate as made by Mayor Knierim is a valid estimate. R. S. 1909, Secs. 9407, 9371; Bevier v. Watson, 113 Mo.App. 506; Fayette v. Rich, 122 Mo.App. 152; State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Jordan, 231 Mo. 577; Gratz v. Wycoff, 165 Mo.App. 196; Heman Construction Co. v. Loevy, 179 Mo. 455; Jaicks v. Merrill, 201 Mo. 91; Dickey v. Porter, 203 Mo. 1; Betts v. Naperville, 214 Ill. 380; Cuming v. Grand Rapids, 46 Mich. 150; Walsh v. The Bank, 139 Mo.App. 648; Boonville v. Stephens, 238 Mo. 339. (2) The price agreed to be paid did not exceed the estimated cost of the work, and the tax bills are valid. R. S. 1909, Sec. 9407. The statute only negatively says that no contract shall be let for a price exceeding the estimate. Any contract which complies with this negative requirement is lawful. To violate the statute the contract must state a price in excess of the aggregate estimate. It is this aggregate only which the statute requires the engineer to state. It does not call for items. Independence v. Briggs, 58 Mo.App. 241; Cuming v. Grand Rapids, 46 Mich. 157; Goodwillie v. Detroit, 103 Mich. 283; Wewell v. Cincinnati, 45 Ohio St. 407. The contractor can in no event get more than the aggregate estimate under Ordinance No. 572. Webb City v. Aylor, 163 Mo.App. 155; Cravens v. Ins. Co., 148 Mo. 583; Gratz v. Wycoff, 165 Mo.App. 196; Stover v. Springfield, 167 Mo.App. 328. (3) There is no lack of definiteness in Winter's contract in respect to line, grade, form or dimensions of the work. Sec. 16 of Ordinance 572, which undertakes to allow a variation in these is void. Rev. Stat., Secs. 9400, 9370; Ruggles v. Collier, 43 Mo. 353; Neal v. Gates, 152 Mo. 585, 594; St. Joseph v. Wilshire, 47 Mo.App. 125; Galbreath v. Newton, 30 Mo.App. 380, 392; King Hill, etc., Co., v. Hamilton, 51 Mo.App. 120. But this section is separable from the rest of the ordinance and does not make the whole void. St. Louis v. Liessing, 190 Mo. 454; St. Louis v. Grafeman, 190 Mo. 492; Water Co. v. Neosho, 136 Mo. 498; Carroll v. Campbell, 108 Mo. 550; State v. Clarke, 54 Mo. 17; Rockville v. Merchant, 60 Mo.App. 365.
This is a suit in equity to cancel a certain tax bill and remove the cloud thereby cast upon the title to plaintiffs' property. The decree below was for the defendants, and the case is here upon plaintiffs' appeal.
The suit was begun by Laura C. Gratz, the owner of certain real property fronting upon Taylor avenue, a public street in Kirkwood, a city of the fourth class. During the pendency of the suit plaintiff departed this life, and the cause has been duly revived in the names of the devisees under her will.
The tax bill in question was issued for a special assessment levied against appellants' property for the improvement of said Taylor avenue. A resolution was duly passed by the board of aldermen of the city of Kirkwood, and approved by the mayor of said city, declaring it necessary to improve a portion of said Taylor avenue, in the manner therein specified, and in accordance with specifications contained in certain ordinances, which resolution was duly published according to law; and an ordinance was duly enacted, known as ordinance No. 754, providing that such portion of the above-mentioned street be so improved. This ordinance, among other things, authorized and directed the mayor to prepare and file an estimate of the cost of doing such work--there being at such time no one holding the office of city engineer--and further provided that all matters connected with the work should be governed by the general provisions of a general improvement ordinance of the city, being ordinance No. 572, in so far as the same were applicable, and that the work should be paid for by the issuance of special tax bills in accordance with the provisions of such general ordinance.
Thereupon advertisement was duly made for bids for doing the work; and a preliminary estimate of the cost thereof was filed by the mayor. Thereafter the defendant contractor, Henry Winter, submitted a bid, and at a meeting of the board of aldermen such bid, being the only bid filed, was accepted, and an ordinance was duly enacted contracting with Winter for doing such work. The latter ordinance, among other things, provided that when the work should be fully completed in accordance with such contract ordinance, and duly accepted, the city would pay the contractor therefor, in accordance with his accepted bid, "by issuing special tax bills as provided in ordinance No. 572, and not otherwise."
Before the contractor filed his bid, he received notice from plaintiff's counsel that plaintiff would contest the validity of any tax bill issued against her property for such improvement of said Taylor avenue; such notice not stating, however, any of the matters relied upon as rendering such tax bill invalid.
The above-mentioned work was duly performed by the contractor, and a final estimate of the cost thereof was filed by the then city engineer. Thereupon the city accepted the work, and an ordinance was enacted levying a special assessment upon the property of plaintiff and others to pay the costs thereof, and providing for the issuing of special tax bills therefor.
The case was tried upon an agreed statement of facts, in which the aforesaid resolution, special ordinances, estimates, bid, etc., are fully set out, together with so much of general ordinance No. 572 as pertains to the issues herein. It is unnecessary to incorporate this entire statement of facts into the opinion, but we shall later refer to such further details thereof as may be necessary to the determination of the questions involved in the appeal, in considering the reasons urged why the tax bill here in question is claimed to be illegal and void.
I. It is first contended that the tax bill is void for the reason that there was no legal...
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