McCoy v. Randall
| Decision Date | 01 July 1909 |
| Citation | 121 S.W. 31,222 Mo. 24 |
| Parties | L. F. McCOY et al., Appellants, v. JOSEPH J. RANDALL et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Henry L. McCune, Judge.
Affirmed.
A. R Strother and James G. Smart for appellants.
(1) The Supreme Court has not jurisdiction of this suit and it should be referred to the Kansas City Court of Appeals. The plaintiffs joined in the suit because they had a common interest in the questions of law involved and to avoid a multiplicity of suits and to save costs. And while the aggregate amount of the taxbills levied against their respective properties was in excess of forty-five hundred dollars, not one of the taxbills was equal to this sum. The aggregate amount should not be considered for the purpose of conferring jurisdiction on this court; but the amount assessed against the property of each plaintiff should control in determining the question of jurisdiction. Laws 1901, p. 107 (new section 1649a); Amendment to the Constitution, sec. 3, p. 93, R. S. 1899; Wheeless v. St Louis, 180 U.S. 379; 4 Federal Statutes Ann., p. 265 (25 Stat. L., U. S. 434). (2) The filing of plans and specifications with the city clerk is a condition precedent to the letting of the contract. The evidence shows no plans were ever filed. There were so-called specifications filed but these were wholly inadequate and could not be properly called specifications. There was nothing upon which an intelligent bid could be based. Nothing to show the cross-section of the street or the quantity of earth to be removed or fills to be made in the grading. This departure from the plain letter of the charter requirements renders the contract and the taxbills void. Laws 1901, sec. 5859, p. 65; De Soto ex rel. v. Showman, 100 Mo.App. 329; Barber Asphalt Paving Co. v. O'Brien, 128 Mo.App. 267; Independence v. Nagle, 114 S.W. 1129; McCormack v. Moore, 114 S.W. 40; Dickey v. Holmes, 109 Mo.App. 724; Kneeland v. Wisconsin, 18 Wis. 411; Wells v. Burnham, 20 Wis. 112; Ricketson v. Milwaukee, 105 Wis. 591; State ex rel. v. Benzenberg, 108 Wis. 435; People v. Board of Improvement, 43 N.Y. 227; Clark v. Lancaster (Neb.), 96 N.W. 599; Mozit v. Pittsburg, 137 Pa. St. 548; Kirksville v. Coleman, 103 Mo.App. 215; Welty's Law of Assessment, sec. 290, p. 435. The charter (Laws 1901, sec. 5859, p. 65), provides that the contract shall be let "on plans and specifications" filed with the city clerk. The Legislature used these words, "plans and specifications," with knowledge of their meaning. They do not mean one and the same thing. In architecture, building, civil engineering, in the construction of public improvements and in every other calling, where the words are used, they have a well defined meaning and signify two very different things. In the charter of cities of the third class, these words are joined by the conjunction "and." The language is "plans and specifications." Kneeland v. Milwaukee, 18 Wis. 413; Wells v. Burnham, 20 Wis. 112; Burke v. Kansas City, 34 Mo.App. 578; 22 Am. and Eng. Ency. Law (2 Ed.), 834; Jenny v. Des Moines (72 N.W. 550), 103 Ia. 347; Ampt. v. Cincinnati, 80 Ohio S. and C. P. D. 624; 6 Words and Phrases Judicially Defined, 5399; State v. Kendall, 15 Neb. 273; Worcester Dictionary; Webster's Unabridged Dictionary; Black's Law Dictionary. (3) Ordinance No. 1749 authorizing the work, passed April 4, 1903, contains these words at the foot of section 2: "In all other particulars the work both of grading and paving shall conform to the plans and specifications now on file in the office of the city clerk." At the time of the passage of this ordinance there were no plans on file, and the specifications then on file were inadequate and insufficient. This ordinance attempted to make papers supposed to be in existence -- but not in existence -- a part of itself. The ordinance was therefore incomplete and invalid. No bidder could tell without searching the records of the city clerk what was the established grade of the street or what was the cross-section of the street; nor was there anything to show the quantity of earth to be removed or the fills to be made. McCormick v. Moore, 114 S.W. 40; Independence v. Nagle, 114 S.W. 1129; Barber Asphalt Paving Co. v. O'Brien, 128 Mo.App. 267; Dickey v. Holmes, 109 Mo.App. 721. (4) The State law, the charter of Independence (Laws 1901, sec. 5859, p. 65), provides that if no remonstrance is filed "then the council shall have power to cause a contract for said work to be let to the lowest and best bidder." The evident meaning of this language is that the council shall, by ordinance, enter into the contract for doing the work. The bid of W. C. Rice (the only person who offered a bid and to whom the contract was let) was accepted by a viva voce vote of the council, no ordinance having been passed accepting the same, and the contract was confirmed merely by a viva voce vote of the council, no ordinance having been passed in the confirmation thereof. We respectfully submit that this was not a compliance with the charter and that the contract was void and the taxbills, issued in pursuance thereof, are void. Laws 1901, p. 65, sec. 5859; also, sec. 5858, p. 63; Sedalia to use v. Donahue, 190 Mo. 422; Wheeler v. Poplar Bluff, 149 Mo. 36. (5) The council did not have the power to extend the time as it attempted to do, and the work not having been completed in the 120 days specified, the taxbills are void. Spalding v. Forsee, 109 Mo.App. 675; Smith v. Westport, 105 Mo.App. 221; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376.
Paxton & Rose for respondents.
(1) All the taxbills in question, amounting to about $ 5,000, are owned by the defendant, the First National Bank, and this fact gives this court jurisdiction of the appeal. Gartside v. Gartside, 42 Mo.App. 513, 113 Mo. 348; Kuh v. Garvin, 53 Mo.App. 64, 125 Mo. 547; Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. 634; Washington Market v. Hoffman, 101 U.S. 112. (2) The requirement of the statute that plans and specifications be on file at the time of letting the contract is directory in its nature and not mandatory except so far that there must be enough on file to enable the bidders to get a clear idea of the work contemplated. Plans are not required if the specifications give a clear and definite description. Morley v. Weakley, 86 Mo. 456; Sheehan v. Owen, 82 Mo. 461. (3) There was an ordinance passed for the doing of the work, there was a general ordinance providing for the manner of letting the contract, and an ordinance levying the tax and providing for the bills. This covered the whole ground, and there was no need for two more ordinances, one for awarding the contract and another for confirming it. Sedalia to use v. Donahue, 190 Mo. 407. (4) The original ordinance having provided for an extension of time, and the ordinance granting an extension having been passed before the expiration of the time first allowed, the extension was legal. Hund v. Rackliffe, 192 Mo. 312. (5) There was no effort to remonstrate, no notice to the contractor, no protest, no attempt to enjoin, and after plaintiffs have waited till the taxbills were issued and sold, the law will not cancel the bills and so work a confiscation on mere quibbles and irregularities such as might happen in any proceeding. Warren v. Barber Asphalt Co., 115 Mo. 580; Johnson v. Duer, 115 Mo. 378; Huling v. Bundara Flag Stone Co., 87 Mo.App. 356; Jaicks v. Merrill, 201 Mo. 109.
This was an equitable proceeding begun in the circuit court of Jackson county for the purpose of enjoining defendants from prosecuting any suits to collect special taxbills issued against the respective lots or parcels of ground belonging to the plaintiffs by the city of Independence, a city of the third class, for grading and paving West College avenue from the west line of Delaware street to the western limits of the city, a distance of about thirty-eight hundred feet; and for the purpose of having said taxbills declared illegal, null and void, and the cloud cast upon the title of the respective plaintiffs to said lots or parcels of ground by reason thereof removed. The taxbills involved in this case are in the usual form and aggregate the sum of $ 4,992.47, with interest.
There was a trial had before the court, which resulted in a finding of the facts and a rendition of judgment in favor of the defendants. In due time and in proper manner, plaintiff appealed to this court.
In conformity to the charter of cities of the third class, a resolution by the city council was duly passed declaring the grading and paving necessary. On April 4, 1903, a special ordinance was duly enacted authorizing the grading and paving to be done. On May 22, 1903, by viva voce vote, the work, after having been duly advertised, was awarded to W. C. Rice for the sum of ninety-four cents per square yard, he being the only bidder. No plans for doing the work were filed with the city clerk by the city engineer at any time, as provided by the charter of such cities, but specifications therefor, as thereby provided for, were on file during all of the times hereinafter mentioned. Said specifications were as follows:
To continue reading
Request your trial