Mound City v. Shields

• Decision Date: 07 December 1925
• Docket Number: No. 15129.,15129.
• Citation: 278 S.W. 798
• Parties: MOUND CITY ex rel. REINERT BROS. CONST. CO. v. SHIELDS
• Court: Missouri Court of Appeals

278 S.W. 798

MOUND CITY ex rel. REINERT BROS. CONST. CO. v. SHIELDS

No. 15129.

Kansas City Court of Appeals. Missouri.

December 7, 1925.

Rehearing Denied January 11, 1926.

Appeal from Circuit Court, Holt County; Guy B. Park, Judge.

Suit by Mound City, on the relation of the Reinert Bros. Construction Company, against Sarah Shields, to recover on a tax bill. Judgment for plaintiff, and defendant appeals. Affirmed.

J. B. Dearmont and Robert L. Minton, both of Mound City, for appellant.

Prank Petree, of Oregon, Mo., Geo. W. Eastin, of St. Joseph, and Tibbels & Bridgeman, of Oregon, Mo., for respondent.

ARNOLD, J.

This is a suit to recover on a tax bill issued by the city of Mound City, Mo., against lots 11, 12, 13, 14, 15, and 16 in block 17, Extension Company's addition to said city, to pay the proportionate share of the assessment for paving and otherwise improving Nebraska street in said city. The total assessment against the designated lots was $1,394.10.

The petition pleads the corporate status of the city of Mound City as a city of the fourth class; the various proceedings by the city council and mayor authorizing the improvements and the acceptance of same when completed; the issuance of the tax certificate which is set out in full, including the various items comprising the same; and states that the property against which the bill was issued was the property of defendant herein.

The answer admits the corporate status of the city of Mound City and generally denies all other allegations of the petition, and makes the following special defenses: First. That the city of Mound City received no bid on April 30, 1920, as charged in the petition, which complied with the instructions to bidders. Second. That said bill was the result of collusion, and was received after the time for receiving bids had expired. Third. That the said bid was above the estimate and was the same as two bids previously received both of which were rejected because above the estimate. Fourth. That the tax bill is void because the improvements were constructed over the protest of a majority of the abutting property owners. Fifth. .That the tax bill is void for the reason that plaintiff had no contract with the city for doing the work at the time it was done, and that the work was neither begun nor completed on the dates specified in the pretended contract. Sixth. That the special grade ordinance, No. 33, establishing the grade, is null and void, for the reason that it is not precise, definite, and certain of expression; it established no datum, nor does it refer to any ordinance which does establish the datum or starting point used; it provides no manner of grading said street; that the ayes and nays were not entered on the journal on final passage of said pretended ordinance, as required by section 8467, R. S. 1919. Seventh. That the assessing ordinance. No. 110, assessing the tax and costs against the abutting property, is null and void, because it does not describe the property attempted to be assessed; nor was it passed by the board of aldermen as required by law. Eighth. That said tax bill is void because it attempts to fasten a joint lien on all the lots, when only lot 16 abuts on the improvement. Ninth. That the tax bill is void because of fraud and collusion in the proceedings whereby the same was issued. Tenth. That it is void because the improvement was not begun on or before June 10, 1920, as provided in plaintiff's bid and contract, nor within a reasonable time thereafter. Eleventh. That it is void because the city of Mound City altered plaintiff's bid of April 30, 1920, by increasing it in the sum of $135.00. Twelfth. That it is void because the improvement was not completed on September 30, 1920, as required by the bid and contract, nor within a reasonable time thereafter. Thirteenth. That Ordinance No. 99, extending the time for completion of the improvement, passed and approved October 28, 1920, Is void because plaintiff at that time had no existing contract. Fourteenth. That Ordinance No. 105, passed and approved May 27, 1921, extending the time, is void because there was no existing contract to be extended, and for the further reason that it did not receive an affirmative vote of a majority of the board of aldermen, as required by charter of the city. Fifteenth. That the so-called paving ordinance, No. 37, mentioned in the petition, is void because it was never approved nor signed by the mayor, and was not attested by the city clerk, nor does it bear the seal of the city.

Under the pleadings thus made, the cause was tried to the court. The judgment was for plaintiff. Motions for a new trial and in arrest of judgment were overruled, and defendant appeals.

In order to reach a clear understanding of the case, it is deemed necessary to review, somewhat in detail, the various steps leading up to the tax bill in question, issued October 8, 1921.

On September 22, 1919, a resolution for the paving and otherwise improving Nebraska street was passed by the board of aldermen. This resolution was published for the required length of time, and no protest against the proposed improvement was filed. On October 13th of said year an ordinance providing for the construction named in the resolution was passed by the board. Nothing more was done in furtherance of said improvements until the month of February, 1920, when, on the 10th of that month, the city engineer filed an estimate of the cost of such improvement. The board then advertised for bids to be received on February 19, 1920, at which time three bids were received. The bid of Reinert Bros. Construction Company of St. Joseph at $3.98 per square yard was the lowest, but all bids were rejected, being above the estimate.

On March 8, 1920, the city clerk was ordered to readvertise for bids for said improvements, and on the same date the city engineer filed a second estimate. In the first, the cost for paving was fixed at $3.75 per square yard, walks at 25 cents per square foot, inlets at $50, 60 feet of 15-inch pipe at $1.50, and grading at 75 cents per cubic yard. In the second estimate, filed March 19, 1920, the costs were increased, and were as follows: Paving was fixed at $4, walks 30 cents, 60 feet of 15-inch pipe $2, grading $1,—making the total estimated cost of the improvement, $82,447.01, instead of $76,788.11, as in the first estimate. On March 19th, the only bid received was that of Reinert Bros. Construction Company, at $3.98 per square yard, which was within the second estimate, but this bid was rejected by the board. On April 16, 1920, the board ordered a readvertisement for bids to be received on April 30, 1920, at which time Reinert Bros. Construction Company was the only bidder, and again the bid was $3.98 per square yard. This bid was accepted.

Immediately after the acceptance of said bid by the board, one Jones B. Dearmont, a citizen of Mound City, filed in the circuit court of Holt county, a petition and application for an injunction upon which a temporary restraining order was issued against the city, enjoining it, its agents and servants, from entering into and making any contract for grading or paving any part of Nebraska street, and from doing any act in connection therewith, until the damages to the property of said Dearmont and others, by reason of the change in the grade, had been adjudged and paid as required by law. The injunction suit was tried in the circuit court of Holt county, on June 23, 1920, resulting in a judgment dissolving the temporary injunction and dismissing the bill. From said judgment Dearmont took an appeal to the Supreme Court. The said appeal was never perfected, and on July 3, 1920, Dearmont served a written notice on the board of aldermen that he did not intend to perfect the appeal.

Neither the resolution nor Ordinance No. 37 fixed any time for the beginning or completion of the proposed improvement, but the bid submitted by Reinert Bros. Construction Company, and accepted by the city, did provide for commencement of the work on or before June 10, 1920, and its completion on or before September 10, 1920.

On April 30, 1920, the date of the acceptance of the bid of Reinert Bros., a contract and bond were prepared, but neither was executed until after Dearmont had notified the board of aldermen on July 3, 1920, that he did not intend to perfect the appeal, and thereafter the contract and bond were executed, and the date of beginning the work was...