Mister v. The City of Kansas

• Decision Date: 08 June 1885
• Parties: JAMES F. MISTER, Administrator of JOHN DOWLING, Deceased, Appellant, v. THE CITY OF KANSAS, Respondent.
• Court: Kansas Court of Appeals

18 Mo.App. 217

JAMES F. MISTER, Administrator of JOHN DOWLING, Deceased, Appellant, v. THE CITY OF KANSAS, Respondent.

Court of Appeals of Missouri, Kansas City.

June 8, 1885

APPEAL from Jackson Circuit Court, HON. T. A. GILL, J.

Affirmed.

Statement of case by the court.

This is a suit brought by the administrator of John Dowling, on a contract by Dowling with the defendant.

The defendant, on June 3, 1879, duly enacted the following ordinance:

" Be it ordained, viz: That the retaining wall along the west side of Bluff street, from its present northern terminus, to the north line of Fifth street, shall be completed of the same material, and in the same manner as that portion thereof already constructed. The work to be completed within 90 days from the time a contract therefor binds and takes effect, and to be paid for in monthly estimates of the city engineer.

Section 2. That the sum of 10,000 dollars is hereby appropriated out of the general fund to pay for said improvement."

John Dowling, being the lowest and best bidder for the work thus ordered by defendant, was awarded the same, and on June 16 1879, he entered into a written contract with defendant for doing such work at a price therein named, for the masonry and filling in earth behind masonry, called for by such contract. The contract provided, among other things, that the work should be done according to the stipulations therein set out which, among other things, provided as follows:

" The engineer may at any time add to or lessen the thickness of said wall, as in his judgment he thinks best, without any extra cost to the City of Kansas, and his decision shall be final as to measurement, and the use or disuse of any material. The wall to be built in accordance with the plan shown herewith. It is understood that all earth excavation is to be done for the contractor, but should any of the top of the stone have to be removed in order to make a better foundation for the wall, the contractor will be expected to remove the same as the city engineer may direct and his time to be kept and paid for accordingly. Bidder must bid on the earth filling, so that the filling behind the wall will be carried on as the stone work advances, as the stone contractor is the only one who can do the earth work behind the wall as the same should be done."

It is claimed by plaintiff, and will by us be assumed as a fact, that John Dowling completed the work in accordance with the terms of the contract, and that the work was duly accepted by the defendant through her engineer. As testified by plaintiff's witness, Knickerbocker, defendant's city engineer in charge of work in question, " the work done under said contract, according to the prices stipulated therein, amounted to about $11,560, in the aggregate, this including the filling in behind the wall as well as the masonry." The defendant paid Dowling the sum of $10,000, the amount appropriated, but refused to pay the balance, for which amount, alleged by plaintiff to be $1567.00, this suit is brought. Said witness, Knickerbocker, testifying for plaintiff, also said " that the city council of defendant ordered him to make an estimate of the cost of the wall contracted by contract sued upon. He did so and asked for an appropriation of $12,000 for the masonry alone, but the city council made an appropriation of only $10,000 at the time."

The charter of defendant contains the following provisions:

" SECTION 29. The common council shall not appropriate money, for any purpose whatever, in excess of the revenue of that fiscal year actually collected and in the treasury at the time of such appropriation, and unappropriated. Neither the common council nor any officer of the city, * * * shall have authority to make any contract or do any act binding the City of Kansas, or imposing upon said city any liability to pay money until a definite amount of money shall have first been appropriated for the liquidation of all pecuniary liability of said city under said contract, or in consequence of said act; and the amount of said appropriation shall be the maximum limit of the liability of the city under any such contract or in consequence of any such act. Said contract, or action, to be ab initio null and void as to the city for any other or further liability."

Judgment was rendered by the circuit court in favor of defendant. The plaintiff has appealed to this court.

C. O. TICHENOR and JAMES F. MISTER, for the appellant.

I. The section of the charter relied upon as a bar to plaintiff's claim, is set out in haec verba in the statement of case made by the record. It is in the nature of a prohibition to the common council against appropriating money for any purpose whatever in excess of the revenue of the fiscal year actually collected and in the treasury at the time of appropriation and unappropriated; and that the amount of appropriation shall be the maximum liability of the city for any contracts or acts made or done by said council.

II. The courts will carry out the intent, gathering it from the whole act, even if a literal interpretation must be rejected, or a restricted one given. Conover v. R. R., 59 Mo. 293, per Napton, J. Under such rule of construction the section of the charter has no application here. It applies only to cases where it is practicable that the cost of the work should be first ascertained, and not to cases (like this) where it was impossible to ascertain the amount of work to be done and the cost thereof until after it is completed. This case was not within the spirit or purpose of the prohibition. Harlem Gas Co. v. Mayor, 33 N.Y. 309; Dillon Mun. Corp. (3rd Ed.) Vol. 1, sect. 469; Nebraska City v. Gas Co., 9 Neb. 339; Hitchcock v. Galveston, 96 U.S. 341.

III. Where a contractor has entered into a contract in good faith, relying upon the regularity of the proceedings of the common council, the city having received the benefit of the performance, is estopped from questioning the regularity in that regard. Moore v. New York, 73 N.Y. 238; Dillon Mun. Corp. (3rd Ed.) Vol. 1, sect. 459 and 461, note 2; Alleghaney City v. McClarkan, 14 Pa.St. 81.

IV. The evidence in this case, assuming the contract to be a valid one, and imposing a legal liability on defendant, is strongly preponderating for plaintiff. The making of the contract, the doing of the work, and the amount due to plaintiff's testator under the prices agreed upon by the contract, are all uncontroverted. The only further question is as to the character of the work and its substantial performance according to agreement, and the current of evidence, from both sides, is that it was.

WASH. ADAMS, R. H. FIELD and W. A. ALDERSON, for respondent.

I. Under section 29, article iv, of the charter of Kansas City (Laws 1875, page 216), the city officers could not, with the protection of this statute to the city, impose any liability upon the city beyond the sum appropriated; the contract in excess of the sum was void as to the city. Perkinson v. St. Louis, 4 Mo.App. 322; Bladen v. Philadelphia, 60 Pa.St. 464; McDonald v. Mayor, 68 N.Y. 23; Goodrich v. Detroit, 12 Mich. 279; Wallace v. Mayor of San Jose, 29 Cal. 180; Keating v. City of Kansas, S.Ct. of Mo., not yet reported.

II. There can be no recovery of a quantum meruit from the city for work done under a void contract, when it is void (as is this contract), for not observing the specific and only method pointed out by which its officers could contract and bind the city. Otherwise there would be no benefit to the public from the legislative restriction and immunity guaranteed in the charter provisions. Keating v. City of Kansas, supra; Dickinson v. Poughkeepsie, 75 N.Y. 65; Mayor, etc., v. Eschbach, 18 Md. 276.

III. The resolution of the common council confirming the alleged contract did not validate it, because a ratification of an unauthorized contract can only be made in the same form and by the same persons who could have authorized it by ordinance. Dillon Mun. Corp. (3rd Ed.) sect. 465; Delafield v. State of Illinois, 2 Hill (N. Y.) 175; McCracken v. San Francisco, 16 Cal. 595; Saxton v. Beach, 50 Mo. 488; Thompson v. Boonville, 61 Mo. 282; Irvin v. Devors, 65 Mo. 625.

IV. Appellant concedes, and the evidence shows, that the total amount appropriated for the work done, was paid to appellant's testator.

OPINION

HALL J.

1. The first and the material question for our determination is, what is the meaning and what is the effect of the above section of defendant's charter as applied to the facts of this case. The meaning of that section is unmistakable. It clearly, in substance, provides: 1st. That defendant's common council shall not appropriate money for any purpose whatever in excess of the revenue of the fiscal year. 2nd. That said council shall make no such appropriation in excess of the revenue of the fiscal year actually collected and in the treasury at the time of the appropriation. 3rd. That neither the common council nor any officer shall have the power to bind defendant by any contract or any act to pay money until a definite amount of money shall have first been appropriated; and 4th, that the maximum limit of defendant's liability, in all cases, on account of any such contract or act, shall be the amount of such appropriation.

The language of said section is clear and unambiguous. By it no exception is made, but its provisions apply alike to all contracts and all acts made or done by any of defendant's officers. We cannot construe said section so as to add thereto a provision, in the nature of an exception, which the legislature did not see fit to insert. " This, as is well settled by an unbroken current of authority, is not permissible where the language of the law is clear and unambiguous, as...