Hund v. Rackliffe

• Decision Date: 21 December 1905
• Citation: 91 S.W. 500,191 Mo. 312
• Parties: HUND et al., Appellants, v. RACKLIFFE et al
• Court: Missouri Supreme Court

91 S.W. 500

191 Mo. 312

HUND et al., Appellants, v. RACKLIFFE et al

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

James W. Mytton and Chas. C. Crow for appellants.

(1) The act of the General Assembly (Laws 1899, p. 78) is void because it authorizes the municipal assembly to create a valid lien upon property without any notice whatever to the party whose property is to be charged. Hunt v Searcy, 167 Mo. 158; Delaney v. Police Court, 167 Mo. 667; State ex rel. v. Ashbrook, 154 Mo. 375. (2) Placing brick on the street is not a commencement of the work, and the contract negatives any such position. Heman v. Gillam, 171 Mo. 258; Smith v. Westport, 105 Mo.App. 221. The taxbills are void, as the contract and specifications expressly provided that same shall be completed in forty days, making time an essential condition of the contract, and it is admitted that the work was not completed within the time. Smith v. City, 105 Mo.App. 221; Spaulding v. Forsee, 83 S.W. 540; Winfrey v. Lunger, 89 Mo.App. 159; Ayres v Schmohl, 86 Mo.App. 349. (3) The contract was approved by the municipal assembly on the 12th day of June, 1903. The contract was to be completed in forty days, which would be July 22, 1903, and the ordinance attempting to extend the time was approved July 15, 1903, and under the above facts the ordinance attempting to extend the time did not accomplish the purpose, for the reason that under the statute in force at the time an ordinance did not go into effect until ten days after approval by the mayor. Keane v. Cushing, 15 Mo.App. 96; Laws 1901, p. 58, sec. 5503; Neill v. Gates, 152 Mo. 585. (4) The attempt to authorize the engineer to extend the time, if such was the purpose, was void. And, in addition, respondents do not claim that the case comes within the conditions of this contract, with reference to the extension of time. McQuiddy v. Brannock, 70 Mo.App. 546; Ayers v. Schmohl, 86 Mo.App. 349; Childers v. Holmes, 95 Mo.App. 154. The municipal assembly had no power to extend the time of completion of the contract. Heman v. Gilliam, 171 Mo. 258; Smith v. Westport, 105 Mo.App. 221; Spaulding v. Forsee, 83 S.W. 540. (5) It is admitted in this case that at the intersection of two alleys the street was not paved with brick, and the contract and specifications expressly provide that the intersections of all alleys shall be paved, which renders the taxbills void. Stifel v. McManus, 74 Mo.App. 430; Construction Co. v. Levy, 64 Mo.App. 559; City v. Gates, 110 Mo. 383; Childers v. Holmes, 95 Mo.App. 154. (6) The contract provides for the completion of the whole work, including all the sidewalks ten feet wide, and it is admitted that one hundred and thirty feet by four and one half feet of the sidewalk, along other property than that owned by appellants, was not constructed. Certainly, this renders the bills void.

Vories & Vories for respondents.

(1) The constitutionality of the various laws concerning special taxes for local improvements is not open to question. Barber Asphalt Co. v. French, 158 Mo. 534; Hill v. Swingly, 159 Mo. 45; Heman v. Allen, 156 Mo. 534; Springfield v. Weaver, 137 Mo. 651. (2) An injunction will not lie to restrain the collection of a taxbill, if any part is due, unless the amount due is tendered at time of suit. And in this case, if the sidewalks had been completed according to contract and law and any other part had not, or vice versa, then the action would not lie, because no part had been tendered. State ex rel. v. Flad, 26 Mo.App. 500; Johnson v. Duer, 115 Mo. 379; Arnold v. Hawkins, 95 Mo. 569. (3) The contract specifies that it is subject to the laws and all ordinances of the city. It was, therefore, entered into subject to the State laws requiring railroads to pave street crossings in a certain manner and also subject to the franchise ordinance of the Chicago Great Western Railway Company, which required said company to pave the crossings in question in exactly the manner they are now maintained, and also subject to the ordinance giving consent to the erection of the areaway complained of in the sidewalk. The contract and ordinance, properly construed, recognized all these ordinances, was subject thereto, and the work was properly done by respondents. Bank v. Heywood, 62 Mo.App. 550; Springfield v. Weaver, 137 Mo. 669; Farrar v. St. Louis, 80 Mo. 393. (4) When a contractor has ten days to begin a contract and forty days to complete same, the time begins to run at the expiration of the ten days, even though the contractor actually begins work before that time. Wheless v. St. Louis, 90 Mo.App. 108. (5) The evidence shows that respondents commenced work hauling brick upon the street long before the expiration of said ten days, and the contract provides, "On the day designated for commencement of the work, the said contractor, before altering the roadway, shall haul brick," etc. (6) Appellants are in error as to the time contract was to be completed. The contract was entered into June 12, 1902; respondents had ten days to commence work and forty days thereafter to complete the same, which would end on the 1st day of August, 1902. The ordinance extending the time upon contract went into effect the 25th day of July, 1902. Where the ordinance providing for public work does not place a time limit upon the work, the city council may by ordinance extend the time named in the contract. Neill v. Gates, 152 Mo. 585; Sparks v. Land Co., 99 Mo. 492. (7) And the city in passing an ordinance extending the time officially declared the existence of sufficient cause for the extension, and that the time designated in extension ordinance was reasonable. Heman v. Gilliam, 171 Mo. 258; Smith v. Westport, 105 Mo.App. 221; Sparks v. Land Co., 99 Mo.App. 492; Neill v. Gates, 152 Mo. 585.

MARSHALL J. Brace, P. J., absent.

OPINION

MARSHALL, J.

This is a proceeding in equity to have cancelled certain special taxbills issued by the city of St. Joseph to the respondents, for the improvement of Faraon street from the east line of Main street to the west line of Third street, under the provisions of ordinance No. 3339, and the contract entered into in pursuance thereof.

The property owned by the plaintiffs and charged with the lien of such special taxbills abutted the improvement. The basis for the relief sought is, first, that the contract required the work to be commenced within ten days after the approval thereof by the municipal assembly on the 12th of June, 1902, and to be completed within forty days thereafter, time being of the essence of the contract, and that the work was neither commenced nor completed as so required; second, that the defendants failed to complete their contract before the issuance of the taxbills, in this, that they made the sidewalk between Third street and the alley five feet wide instead of ten feet as the contract called for; third, that the defendants failed to complete their contract before the taxbills were issued, in this, that the contract required the full width of the street to be wholly paved with brick and that forty feet of the street was paved or covered with boards or planks instead of bricks, at the point where the Chicago, St. Paul and Kansas City railway crosses the street; and fourth that the act approved April 12, 1899, authorizing cities of the second class to improve streets, etc., under which the taxbills in question were issued, is unconstitutional because in violation of section 4 of article 2 and section 30 of article 2 of the Constitution.

The answer of the defendants is a general denial, coupled with a special plea that long before the passage of the ordinance and the execution of the contract, the city of St. Joseph had, by ordinance, granted to said railway company a right to construct its tracks across Faraon street, and as a portion of said grant had required the railroad company to pave that part of Faraon street occupied by its tracks and eighteen inches on each side of its tracks and to the end of the ties, and that the railroad company had accepted the said ordinance and constructed its tracks, and therefore it was no part of the duty of the defendants to pave said part of the street under said ordinance and contract for the improvement thereof; and further, that by the terms of ordinance No. 3489, approved April 15, 1902, the time for the completion of the contract was extended by the city for a period of ninety days, and that the defendants fully completed the work in that time.

The case was tried in the lower court upon an agreed statement of facts, which covered all the points in controversy, with the exception of when the work, under the contract, was commenced, and the plaintiffs introduced no evidence on that subject. But the defendants introduced evidence tending to prove that before the expiration of ten days after the ordinance was approved, they began the work contemplated, and hauled brick onto the street to be used in the construction thereof. The agreed statement of facts showed that the plaintiffs were the owners of the property affected by the taxbills; that ordinance 3339, aforesaid, provided for the improvement of the street from the east line of Main street to the west line of Third street, except its intersection at Second street and the laying of sidewalks adjoining lot 12 in block 27; that the street was to be graded and paved with vitrified brick, and the work done to be paid for by special taxbills against the property abutting the improvement; that the contract with the defendants for the improvement of the street was duly approved by the municipal assembly on the 12th of June, 1902; that the defendant city is a city of the second class; that...