Parker-Washington Co. v. Field

• Decision Date: 02 March 1920
• Docket Number: No. 20554.,20554.
• Citation: 219 S.W. 598
• Parties: PARKER-WASHINGTON CO. v. FIELD.
• Court: Missouri Supreme Court

219 S.W. 598

PARKER-WASHINGTON CO. v. FIELD.

No. 20554.

Supreme Court of Missouri, Division No. 1.

March 2, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by the Parker-Washington Company against Richard H. Field. From a judgment for defendant plaintiff appeals. Cause transferred to Kansas City Court of Appeals.

Ball & Ryland, of Kansas City, for appellant.

R. H. Field, of Kansas City, for respondent.

BROWN, C.

Petition filed May 28, 1914, returnable to the September term of said court. It was founded upon a special tax bill issued by Kansas City to the plaintiff, a construction company, on account of resurfacing a portion of Seventh street in said city with asphalt in 1909. The amount charged in said bill upon the defendant's lot fronting on the improvement and involved in this suit is $252.16, divided into four annual installments, all of which were due at the time of the institution of the suit, each of the installments being charged in a separate count of the petition. The bill purported to have been issued pursuant to the terms of an ordinance of said city, No. 309, approved October 14, 1908. The cause was tried on defendant's second amended answer, which admitted the ownership of the lot, that the tax bill sued on was duly issued and delivered to plaintiff as charged, and denies each and every other allegation in the petition. As special defenses it pleads as follows:

"(2) Defendant alleges that the proceedings for the alleged street improvement were not begun, by the adoption of the resolution by the board of public works of Kansas City, Mo., on or after September 4, 1908, the date the last city charter of said city took effect. And none of the prescribed proceedings in section 3 of article 8 of said city charter of 1908 were had in the proceedings for the alleged street improvement, before the passage of the Kansas City Ordinance No. 664, approved November 11, 1908, confirming the contract of plaintiff for the alleged street improvement

"(2a) And defendant says the common council of Kansas City, Mo., had no authority to pass the alleged City Ordinance No. 309, approved October 14, 1908, ordering the street improvement in question, and no authority to pass the City Ordinance No. 664, approved November 11, 1908, confirming the contract for the alleged street improvement, when said ordinances were passed by the common council of said city; and the said City Ordinances No. 309 and No. 664, and the contract for the street improvement in question, were unauthorized, and are void.

"(3) The alleged street pavement was not done nor begun by plaintiff within the time prescribed in the City Ordinance No. 349, ordering said street pavement, nor within the time provided in the contract therefor, nor within a reasonable time after the contract with plaintiff for said pavement took effect.

"(4) The specification of the time for doing the work in question, and of the right to an extension of time thereon, was so written as to be made a matter of caprice, oppression, or favoritism of the city authorities, and the inevitable effect of which was to discourage competition and to increase the cost of the work, and does not comply with sections 811-815 and 820 of the Revised Ordinances of Kansas City, Mo., of 1898, then in force.

"(5) City Ordinance No. 984, approved December 30, 1908, extending the time for the doing of said work, was unauthorized, and was not based upon any valuable consideration or legal reason.

"(6) And for this last defense, to the petition and tax bill sued on, defendant says that three months before any of the work in question was done, the alleged City Ordinance No. 309, ordering the alleged street improvement, was repealed by the later Kansas City Ordinance No. 1055, approved February 2, 1909, putting the part of Seventh street in question in the control of the board of park commissioners of said city."

To these defenses the plaintiff interposed a general denial by replication.

The cause came on for trial at the May term, 1917, of said circuit court, and on June 23 of said year, when evidence was introduced upon the issues contained in the petition, which the court found for the defendant, and entered its judgment accordingly at the same term, from which judgment this appeal was taken.

Among many declarations of law asked by defendant and given or refused by the court are the following:

"(2) The Kansas City charter of 1908, adopted August 4, 1908, took effect on September 4, 1908, and then became the charter of said city, and superseded the former charter of said city and all amendments thereof, under section 16 of article 9 of the Constitution of the state of Missouri." (Given.)

"(4) Section 3 of article 18 of the Kansas City charter of 1908 is in conflict with section 16 of article 9 of the Constitution of the state of Missouri, and therefore cannot sustain the passage of City Ordinances No. 309 and No. 664, and the contract for the pavement, in question, after said city charter of 1908 took effect." (Refused.)

"(6) The alleged City Ordinance No. 309, approved October 14, 1908, ordering the street pavement in question, and the City Ordinance No. 664, approved November 11, 1908, confirming the contract with plaintiff, were unauthorized and void, and the finding must be for the defendant if it has been shown by the evidence that the proceedings for said street pavement were not begun by the adoption of a resolution by the board of public works on or after September 4, 1908." (Refused.)

Our jurisdiction in this case stands solely upon the question whether or not it involves the construction of ...