Keane v. Cushing

• Decision Date: 29 January 1884
• Citation: 15 Mo.App. 96
• Parties: W. KEANE ET AL., Respondents, v. JULIA CUSHING, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 96

W. KEANE ET AL., Respondents,

v.JULIA CUSHING, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 29, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and judgment.

KLEIN & FISSE, for the appellant.

EBER PEACOCK, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is an action upon a special tax bill amounting to the sum of $65.35, issued by the city of St. Louis in favor of the plaintiffs against John and Julia Cushing, for the construction of a district sewer, within what is known as the Stein Street Sewer District, No. 3, in Carondelet. The action was originally brought before a justice of the peace, jointly against John and Julia Cushing. Upon a suggestion of the death of John Cushing to the justice of the peace, the plaintiffs dismissed their action against him, and recovered a judgment against Julia Cushing for the full amount of the tax bill and interest. Julia Cushing appealed to the circuit court, and there the cause was tried by the court without a jury, and judgment was again rendered against her, from which she has appealed to this court.

Several objections are made by the appellant to the rulings of the circuit court. We shall notice but one of them, because this, in our judgment, is decisive of the case.

By the charter of the city of St. Louis, Art. III., sect. 21, “No ordinance passed by the assembly, except the general appropriation ordinance, shall take effect or go into force until ten days after its approval, unless, in case of an emergency (which emergency must be expressed in the preamble or in the body of the ordinance), the assembly shall, by a vote of two-thirds of all the members elected to each house, otherwise direct; such vote to be taken by yeas and nays, and entered upon the journal.”

The charter of the city of St. Louis also provides:--

“The assembly shall have no power directly to contract for any public work or improvement or repairs thereof contemplated by this charter, nor to fix the price or rate therefor; but the board of public improvements shall, in all cases, except in case of necessary repairs requiring prompt attention, prepare and submit to the assembly estimates of costs of any proposed work, and under direction of the ordinance, shall advertise for bids, as provided for purchases by the commissioner of supplies, and let out said work by contract to the lowest responsible bidder, subject to the approval of the council. Any other mode of letting out said work shall be held as illegal and void.”

The ordinance of the city of St. Louis regulating the advertising and letting of public work contains the following provision:--

“The notice of such letting of public work shall be published in the newspapers doing the city printing, at least three times, the last publication to beat least ten days before the day appointed for the opening of the bids; said notice shall state the number of the letting, the nature of the work, the places at which the plans and specifications and forms of contract may be seen; the hour and place of opening the bids, and the time up to which the bids will be received.”

The ordinance under which the letting of the contract was made for the public work for which the tax bill sued upon in this case was given, was approved by the mayor on the 24th of December, 1880. It did not provide, either in its preamble or in its body, that it should take effect within less than ten days after its approval; and, therefore, under the provision of the charter above quoted, it did not take effect until ten days after the 24th of December, 1880; that is, until the 4th of January, 1881. Nevertheless, on the 28th of December, 1880, but four days after its approval, the board of public improvements fixed the 11th day of January, 1881, for the letting of a contract to do the work provided for therein; and, on the following day, December 29th, 1880, being the fifth day after the ordinance was approved, and for the two days succeeding, the same being December 30th and 31st, they caused an advertisement to be published in the St. Louis Daily Times,soliciting sealed proposals for doing the work authorized by the ordinance in question. It thus appears that this advertising of the contract was completed on the seventh day after the approving of the ordinance, and three days before it took effect.

In our judgment, because of this irregularity in advertising the letting of the contract for the public work provided for by this ordinance, the special tax bill here sued on is invalid. We need not repeat what has so often been held with regard to these special proceedings, in pursuance of which special taxes are assessed against private property, becoming a lien thereon, that, unless the provisions of law prescribing the mode in which the power shall be exercised are substantially complied with, the tax bill is void.

It is a general rule that, where a constitutional provision prescribes the date at which an act of the legislature shall take effect, until the arrival of that date, it has no force or validity for any purpose whatever; not even for the purpose of imparting notice of its existence. It is said by an authoritative writer on statutory construction: “A statute which is to become a law at a...