Meyers v. Wood

• Decision Date: 28 July 1913
• Citation: 158 S.W. 909,173 Mo.App. 564
• Parties: CHAS. J. MEYERS, et al., Appellants, v. T. K. WOOD, et al., Respondents
• Court: Missouri Court of Appeals

158 S.W. 909

173 Mo.App. 564

CHAS. J. MEYERS, et al., Appellants, v. T. K. WOOD, et al., Respondents

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Jasper County Circuit Court, Division No. One.--Hon Joseph D. Perkins, Judge.

Judgment affirmed.

J. D Harris for appellants

(1) Where a city undertakes to construct a district sewer to be paid for in special tax bills, the proceeding must be set in motion by an ordinance specifying the dimensions, material and character of the sewer, either by setting such matters out on its face or by reference to plans and specifications then on file in a designated office. McCormick v Moore, 134 Mo.App. 678; Richardson v. Walsh, 142 Mo.App. 328; Dickey v. Holmes, 109 Mo.App. 721. (2) The city council cannot ratify a change in the course of the sewer. The sewer for which the tax bills are issued must be prescribed in the ordinance, upon which the matter is let to public bid. Dicke v. Holmes, 109 Mo.App. 725; Independence to Use v. Knoepher, 134 Mo.App. 650; Withworth v. Webb City, 204 Mo. 579. (3) The power to locate a sewer in a city of the third class is legislative, and cannot be delegated to the city engineer. Withworth v. Webb City, 204 Mo.App. 579; Neill v. Gates, 152 Mo. 594. (4) The work must be let on competitive bid and the contract cannot thereafter be changed. The work must be done under the contract submitted to the competition of bidders, and the successful bidder and the city cannot arrange a differen; contract subsequently. McQuiddy v. Brannock, 70 Mo.App. 550; Galbreath v. Newton, 30 Mo.App. 393t McCormick v. Moore, 134 Mo.App. 669; Boonville ex rel. v. Stephens, 238 Mo. 339; City of Maryville ex rel. v. Lippman & Ingerson, 151 Mo.App. 447; City of Trenton v. Collier, 68 Mo.App. 490. (5) Where there is a change made in the location of the sewer after the contract is let, the city council cannot validate the tax bill by a subsequent ordinance providing that the sewer shall be located upon the new lines. Neill v. Gates, 152 Mo. 585; Barber Asphalt Co. v. Ridge, 169 Mo. 376; City to use v. Eddy, 123 Mo. 546; McQuiddy v. Brannock, 70 Mo.App. 535; Heidelberg v. St. Francois Co., 100 Mo. 69; Ruggles v. Collier, 43 Mo. 363; Railroad v. Chicago, 174 Ill. 442. (6) A city cannot order a sewer constructed, let it to contract on a competitive bid, and then, after the contract is let, change the whole situation by shifting the location to another and different route. City of Maryville v. Lippman, 151 Mo.App. 452; Neill v. Gates, 152 Mo. 595; Const. of Mo. Art. 2, sec. 15. (7) Where the city proposes establishment of a sanitary and drainage sewer at the expense of the property owners in the district, and in fact only a sanitary sewer is constructed the tax bills are rendered void. Barton v. Kansas City, 110 Mo.App. 31. (8) A suit in equity will lie to cancel the tax bills and remove the cloud from the title. Bayha v. Taylor, 36 Mo.App. 427; Barton v. Kansas City, 110 Mo.App. 35; Potter v. Paving & Construction Co., 214 Mo. 5.

George W. Crowder and McReynolds & Halliburton for respondents.

(1) In the case at bar, while the ordinance itself only designates the material, it does incorporate into itself the dimensions and details of the sewer to be built, by reference to the plans and specifications on file in the office of the city clerk. St. Joseph v. Landis, 54 Mo.App. 315; Roth v. Hox, 68 Mo.App. 283; Galbreath v. Newton, 30 Mo.App. 380; Akens v. Kohlmeyer, 97 Mo.App. 520; Joplin ex rel. v. Hollingshead, 123 Mo.App. 608. (2) The plans and specifications had been made and were on file in the city clerk's office on the day the city engineer was ordered to advertise for bids, and the file mark on the back of the same was simply a mistake in date. The notation does not make the filing. The file mark is not necessary. Akens v. Kohlmeyer, 97 Mo.App. 529; Grubbs v. Cones, 57 Mo. 83; Baker v. Henry, 63 Mo. 517; State v. Hockaday, 98 Mo. 593. (3) It was competent for the council to amend the original ordinance and change the route of the sewer. City of St. Louis to the use of Fox v. Schoenmann, 52 Mo. 348; Guild v. Andrews, 137 F. 371; (4) This contract was let to a competitive bid and the fact that but one person bid does not under the law change the fact that it was a competitive bid, such as the law contemplates. Dubbert v. City of Cedar Falls, 149 Iowa 489, 128 N.W. 947; City of Platte City to use Pryor v. Paxton, 141 Mo.App. 175.

OPINION

FARRINGTON, J.

This is a suit in equity brought by the appellants, owners of certain lots in the city of Carthage, against T. K. Wood, a contractor, and the Central National Bank alleged to have an interest in the tax bills in question, the object of which was to have canceled certain tax bills against the property of the appellants, issued by the city of Carthage to the contractor for the construction of a district sewer. Appellants' lots were located within the sewer district. The trial court dismissed the petition and gave judgment for the defendants.

The petition attacks the validity of the taxbills on the following grounds: (1) That the ordinance ordering the construction of the sewer did not prescribe the dimensions, material, or character of the sewer to be constructed. (2) That the ordinance passed on March 25, 1912, calling for plans, specifications, dimensions, etc., "then on file with the city clerk," was invalid for the reason that such plans were not in the office of the city clerk at the time, and that the bid of the contractor showed the plans and specifications to be on file in the city engineer's office. (3) That the proposed improvement was not let to competitive bidding, and that the sewer as completed does not conform to the ordinance, plans and specifications on which the bid was made.

The record before us shows that on March 11, 1912, a resolution was passed by the city council wherein it was stated that it was deemed necessary to establish a sewer district for sanitary and drainage purposes, and in which the city engineer was directed to make an estimate of the cost of the sewer and detailed plans and specifications showing the dimensions, kind of sewer, manholes, lamp holes, flush tanks, inlets, catchbasins, laterals, and all necessary appurtenances. On March 18, 1912, the city council passed an ordinance establishing the sewer district and giving the boundaries thereof. On March 25, 1912, the city engineer was ordered to advertise for bids, of which advertisement proof of publication was made and no objection is raised with reference to the publication or the form thereof. On March 25, 1912, an ordinance was passed providing for the construction of a sewer in the district in question, and providing that the same should have all the necessary laterals, manholes, flush tanks, junction pieces, connections, and all other appurtenances, the same as that ordered by the ordinance establishing the sewer district. This last-mentioned ordinance located the beginning and ending of the district sewer and the line on which it was to be constructed, and by clause 3 thereof specially provided that it should be built in accordance with the plans and specifications of the city engineer "now on file in the office of the clerk," and provided that these plans and specifications "are hereby made a part of this ordinance."

It is unnecessary to notice anything in the plans and specifications except the following provisions:

"Location.--The sewer shall be located on the lines shown on the plans of the work, and will be staked out by the engineer. The engineer, however, reserves the right to move the line of sewers to the right or left whenever obstructions are met with which render a change of line desirable.

"Protection of water and gas pipes, etc.--The contractor shall do whatever may be necessary to keep in position and to protect from injury all water and gas pipes, lamp posts, service pipes and all other fixtures which may be met with in carrying on the work. In case of any of the said gas or water pipes or any other fixtures being damaged, they may be repaired by the parties having control of them and the expense of such repairs shall be deducted from the amounts which may become due the contractor."

T. K. Wood was the only bidder and his bid was just within the estimate of the city engineer.

An ordinance was passed on May 13, 1912, and accepted by Wood on May 16, 1912, contracting with Wood for the construction of said sewer, which said ordinance provides that said Wood shall furnish all material and do all work necessary to construct the sewer with all required laterals, manholes, lamp holes, etc., as defined and prescribed by the plans and specifications therefor "now on file with the city clerk," and providing that the plans and specifications are made a part of the contract ordinance. The ordinance, in addition to referring to the plans and specifications, provides the cost per lineal foot for laying pipe, back filling and excavating, and provides for the various depths, and for manholes, lamp holes, flush tanks, and outlets. The contract was let on what is generally termed "unit bidding."

Work was begun on the sewer by the contractor, and when he reached a certain point on Main street along which the line of sewer was established, he encountered, according to the claim of the plaintiffs, a heavy limestone bar, high pressure water and gas pipes which had been laid without being cushioned, and that to go farther along Main street on the line originally laid out would require blasting to such an extent as to be very expensive and there would be great danger of bursting the water and gas mains for which damage the contractor would have to pay. It seems there was also a street car line running along the center...