Lee v. Rogers
| Decision Date | 29 January 1923 |
| Citation | 247 S.W. 1019,215 Mo.App. 471 |
| Parties | ED C. LEE et al. v. C. L. ROGERS et al |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Greene County.--Hon. Orin Patterson, Judge.
REVERSED.
Judgment reversed.
Frank B. Williams and John T. Sturgis for appellant.
(1) The statute, section 8132, Revised Statutes 1919, nowhere says that the ordinance prescribing the dimensions and materials shall be enacted before advertising for bids, nor at any particular stage of the proceedings. It is sufficient if such ordinance be passed at any time before the contract is made and the work done. Springfield to use v. Weaver, 137 Mo. 650, 666; City of Trenton v. Collier, 68 Mo.App 483, 489 and 492; Smith v. Westport, 105 Mo.App 221, 224; Cushing v. Russell, 134 Mo.App. 650, 653; Whitworth v. Webb City, 204 Mo. 579; Secs. 8661 to 8667, R. S. 1919. (2) In absence of express provision of city charter or ordinance duly enacted, a city may construct sewers by contract and issue valid tax bills, without either advertising for bids or letting the contract to the lowest bidder. Warren v. Barber Paving Co., 115 Mo. 572 579; Thrasher v. Kirksville, 204 S.W. 804; Springfield to use v. Weaver, supra; City of St. Louis v. Public Service Commission, 207 S.W. 799, 803.
W. D. Tatlow for respondent.
(1) Enactment of an ordinance first prescribing the dimensions and materials to be used in the construction of the sewer is a condition precedent to such construction by the city. City to use, etc., v. Eddy, 123 Mo. 546; Wheeler v. City, 149 Mo. 36; 49 S.W. 1088; City of Sedalia v. Donahue, 190 Mo. 407, 89 S.W. 386; Asphalt Paving Co. v. O'Brien, 128 Mo.App. 267, 107 S.W. 25; Kotch v. City, 220 S.W. 1007. (2) Statute by inference requires that the dimensions and materials be prescribed by ordinance before any other steps are taken. State ex rel. v. Laclede Gaslight Co., 102 Mo. 472, 485. (3) The duty of prescribing the dimensions of the proposed improvement is legislative and not ministerial and cannot be delegated to city engineer or other officer. Rugless v. Collier, 43 Mo. 353; Whitworth v. Webb City, supra; City of California v. Kiesling, 180 S.W. 559.
The plaintiffs in this action filed a suit in equity for the purpose of cancelling certain tax bills issued by the City of Springfield, Missouri, to a sewer contractor. The sewer which was constructed was known as District Sewer No. 23 of Section 3. The record clearly shows that the sewer was constructed according to the plans, specifications and contract entered into. The court entered a decree for plaintiffs, holding that the tax bills were void. The defendants are the contractor and owners of the tax bills and have appealed from that decree.
There is but one question involved in this suit, and that is one of law. The ground upon which the trial court held that these tax bills were void was that the city had failed to meet the statutory requirements as to necessary advertisements in causing this sewer to be constructed. The city is of the second class, and the requirements for the construction of sewers for cities of this class will be found under section 8132, Revised Statutes 1919, which, so far as is necessary for a disposition of the question here, is as follows: "The council shall cause sewers to be constructed in each district whenever it shall deem such sewers necessary for sanitary purposes; and said sewers shall be of such dimensions and materials as may be prescribed by ordinance (Italics ours), etc. We have italicized the particular provision of the statute upon which this case must turn.
It is contended by the respondents that because no ordinance was passed prior to the advertisement for bids setting forth the dimensions and the materials, that the tax bills issued were for that reason void. The record discloses that the following proceedings were had concerning the construction of this sewer and issuance of said tax bills: At a regular meeting of the city council on October 5, 1920, there was presented a petition asking for the construction of this district sewer, which petition, by the way, was signed by plaintiff Ed C. Lee and four other property owners. The same was referred to one of the members of the council who at a regular meeting of October 9, returned it, making a notation that the petition be filed and that the city engineer prepare and file plans, specifications and estimates of said district sewer. At a meeting of November 23, 1920, an ordinance was passed establishing the sewer district, setting forth that the city council deemed its construction necessary for sanitary purposes, and which ordinance further contained an emergency clause. On December 1, 1920, an ordinance was passed, the first section of which defined the routes of the lines of this sewer district, the second section directing the city engineer to make and submit an estimate of the cost, and the Commissioner of Streets and Public Improvements was directed to advertise for sealed bids for the construction of the sewer. The third section provided for the issuance of these tax bills by special tax bills, and the fourth section contained an emergency clause. At a council meeting on December 21, 1920, the estimate of the cost for construction of this sewer, filed by the city engineer December 15, 1920, was read and ordered filed, and on December 23, 1920, the engineer opened bids in the presence of the council, the defendant Ralph W. Langston being one of the bidders. At this meeting there was a communication from a contractor calling the council's attention to the fact that no ordinance had been passed by the council setting forth the dimensions and materials, as provided by law, accompanied the same by an opinion of his attorney in which it was stated that this provision of the law had not been embodied in an ordinance and refused to submit a bid for the construction of this sewer. No attention was paid to this communication from this contractor, and it being found that the bid of Ralph W. Langston was within the engineer's estimate, the Commissioner of Streets and Public Improvements recommended the acceptance of his bid. An ordinance was then passed by the council, the first section of which recites that the bid of Ralph W. Langston on said sewer be accepted at the sum and price, and the contract be awarded at the price and sum set forth in his bid, and under the plans and specifications of the city engineer on file in his office. Section 1 further directed the Mayor and Commissioner of Streets and Public Improvements to enter into a contract in accordance with his bid and the plans and specifications of the city engineer and city ordinance for the construction of said sewer Section 2 of the ordinance is as follows: "The plans and specifications of the City Engineer now on file in his office for the construction of said sewer are hereby adopted and approved by this council," then follow other sections of this ordinance not of interest in this suit.
It will thus be seen from this record which we have set out that the first time the city council passed an ordinance which undertook to set forth the dimensions and materials that would go into this sewer was in the ordinance accepting the bid of the contractor, passed on December 23, 1920, in the second section of said ordinance, which we have quoted. In view of the fact that the plans and specifications were on file in the engineer's office, we think there is no doubt but that Section 2 of this ordinance, which we have quoted did by ordinance set forth the dimensions and materials of the same, and respondents make no serious contention that that was not a sufficient description in order to comply with the section of the statute which required that the dimensions and materials be set forth by ordinance. Respondents do contend that the failure on the...
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