Kiley v. Oppenheimer

• Decision Date: 28 February 1874
• Citation: 55 Mo. 374
• Parties: FLORENCE KILEY, Respondent, v. M. OPPENHEIMER, JOSEPH DURFFEE AND WM. H. BAITLETT, Appellants.
• Court: Missouri Supreme Court

55 Mo. 374

FLORENCE KILEY, Respondent,

v.M. OPPENHEIMER, JOSEPH DURFFEE AND WM. H. BAITLETT, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Buchanan Common Pleas.

H. K. White, for Appellants

I. Advertising to receive bids till a specified time, and closing a contract with a favorite contractor long before that time had expired, carries the stamp of fraud and illegality upon its face. (Dill. Mun. Corp., p. 605; Mitchell vs. Milwaukee, 18 Wis., 92; City of Dubuque vs. Wooton, 28 Iowa, 571; City of Lowell vs. French, 6 Cush., 223; Nash vs. St. Paul, 11 Minn., 174.)

Van Waters and Everett & Reed, for Respondent.

I. The notice was for thirty days, and therefore regular on its face, and in literal compliance with the requirement. But the award was made to plaintiff a few days before the expiration of the thirty days' notice. If defendant had alleged and proved that in consequence of this irregularity, some one had been prevented from offering a lower bid, this question might then assume graver magnitude. (4 Seld., 91, 93.) But no defense of this kind is set up. The question is conceded to be one of law, presenting nothing but the abstract question, whether an omission to comply strictly with the ordinances per se, invalidates the contract of plaintiff? This requirement of the ordinance was clearly directory. (30 Mo., 537; 2 Am. Rep., 79, 80.)

SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff Florence Kiley brought his action in the Buchanan County Court of Common Pleas, against Marcus Oppenheimer, to recover the amount of two special tax bills, for macadamizing, &c., alleged tohave been done by plaintiff in front of two lots on Missouri street in the City of St. Joseph, under and by virtue of a contract entered into with that city through its engineer. Oppenheimer did not appear to the action, but Durffee and Baitlett entered their appearance, and amongst other matters, pleaded the general issues. A trial without the intervention of a jury resulted in a judgment for the plaintiff.

In the view which I take of this case, it is entirely unnecessary to discuss the numerous points which have been urged here for a reversal. Before passing, however, to a point of graver importance, it may be observed that the position of defendants as to the inadmissibility of the tax-bills certified anew by the City Engineer, after the expiration of his term of office, in order to cure certain informalities in his certificates to such bills, is untenable. Such amendments have been held valid by a former decision of this court. (See Kiley vs. Cranor, 51 Mo., 541.) But a difficulty which I regard as insuperable in the case before us, is presented in the fact, that during the time publication was being made for the reception of proposals the contract was prematurely awarded to plaintiff, in utter disregard of the express provisions of the ordinance of May 13th, 1865, requiring the City Engineer to give at least thirty days' notice by advertisement, in the official paper of the city, that proposals would be received at his office for the performance of the contemplated work. This ordinance was passed in conformity with the provisions of the amended charter of the City of St. Joseph, approved February 8th, 1865, which required, that the mode of assessing the costs of macadamizing the streets, &c., against the owners of adjoining property, should be prescribed by ordinance, and such work completed under like authority. (§§ 4, 5, p. 47, Laws & Ord.) Where extraordinary powers are conferred by statutory enactment, powers which even in theirlegitimate exercise are very often productive of great hardship, if not of actual abuse and oppression, the greatest caution should attend every step taken in a pathway obviously unknown to the common law. The powers bestowed by the above ordinance were clearly of this character, and therefore demanded on the part of those attempting to execute them the most rigid observance, and the strict performance of those conditions precedent upon which alone their validity depended. The ability of the city to create a lien on the property of one of its citizens in the manner pointed out in the ordinance referred to, is founded not in any...