Hilgert v. Barber Asphalt Pav. Co.

• Citation: 72 S.W. 1070,173 Mo. 319
• Parties: HILGERT v. BARBER ASPHALT PAV. CO.
• Decision Date: 04 March 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 1070

173 Mo. 319

HILGERT v. BARBER ASPHALT PAV. CO.

Supreme Court of Missouri.

March 4, 1903.

SUPREME COURT—JURISDICTION — APPEALS — CONSTITUTIONAL QUESTIONS—CONSTRUCTION OF LAWS AND CONTRACTS.

1. There is nothing in an issue as to when an act of the Legislature took effect (the validity of the act not being questioned) to give jurisdiction to the Supreme Court of an appeal direct from the circuit court.

2. No constitutional question is raised in determining an issue as to whether a paving contractor was excused from completing the contract within the prescribed time by the failure of the city to grade the street, and by an ordinance extending the time.

3. An allegation by defendant in an action by a private citizen to cancel tax bills issued against his property in payment for paving "that for the court to hold that the city is estopped to say that the work was not completed within the time required by the contract, but that plaintiffs are not precluded from so saying, and that the tax bills are void, would be in violation of defendant's rights, established by Const. Mo. art. 2, § 15, of immunity against laws impairing the obligations of contracts, and Const. U. S. art. 1, § 10, inhibiting state laws impairing the obligations of contracts," does not raise a constitutional question; such provisions relating to the enactment of laws by the Legislature, and not to decisions by the court.

In Banc. Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Josephine Hilgert against the Barber Asphalt Paving Company. From a judgment in favor of plaintiff, defendant appeals. Transferred to Kansas City Court of Appeals.

Scarritt, Griffith & Jones and R. A. Brown, for appellant. Culver & Phillip, for respondent.

ROBINSON, C. J.

This suit was begun by respondent, as plaintiff below, to have declared void and canceled certain tax bills issued to appellant by the city of St. Joseph in payment of the cost of certain street improvements made in front of respondent's property. The general improvements consisted of paving, curbing, and laying sidewalks on Ashland avenue for a distance of about 2,000 feet at an aggregate cost of something like $15,000; the tax bill issued against respondent's property, and sought to be canceled, however, being only for the sum of $984.18. The grounds alleged by respondent for having said tax bills canceled are that they are void, first, because the contract for the work was not approved by the common council of the city of St. Joseph; and, second, because if the contract was approved by the council, the contractor failed to comply with the provision thereof, and to complete the work within the time specified. Defendant's answer denied, first, that the contract had not been confirmed, admits that the work was not completed within the time specified in the original contract, and pleads in avoidance that the time had been extended by ordinance, and that, even if it had not been extended, the city had prevented appellant from completing the pavement within the required time, by failing to seasonably grade the street by independent contractors, as it undertook to do, and that the city was therefore estopped to say that the work was not completed within the specified period. The answer contains this further averment, and on account of which appellant now contends this court had jurisdiction of the case on this appeal:

"And this defendant states that for the court to hold or declare that the said city, by reason of the premises, is estopped to say that the work was not completed within the time required by the terms of the contract, but that the plaintiffs are not for that reason precluded from so saying, and that the tax bills described in the petition, and therein alleged to have been issued in part payment of the price of said work, are void, would be in violation of the defendant's rights, established by section 15, art. 2, of the Constitution of Missouri, of immunity against laws impairing...