Porter v. R. J. Boyd Paving & Construction Company
| Citation | 112 S.W. 235,214 Mo. 1 |
| Parties | J. L. PORTER, Appellant, v. R. J. BOYD PAVING & CONSTRUCTION COMPANY |
| Decision Date | 14 July 1908 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.
Affirmed.
Ball & Ryland for appellant.
(1) Is not ordinance 16521 necessarily void by reason of the fact that it does not appear that it was left with the mayor as provided by the charter, or that it was signed by him, but that it was left with his secretary, and his secretary signed and approved it in the name of the mayor? Secs. 6, 8, art. 3 charter of Kansas City; R. S. 1899, sec. 4160; Altman v Dubuque, 111 Ia. 105; State ex rel. v. Dist. Court of Dakota County, 41 Minn. 518; Railroad v Waterbury, 55 Conn. 19; Carondelet v. Wolfert, 39 Mo. 305; Keating v. Skiles, 72 Mo. 97; Twiss v. Port Huron, 63 Mich. 528; Whitney v. Port Huron, 88 Mich. 268; In re Standiford, 5 Mackey (D. C.) 549; Chapman v. Inhabitants of Limerick, 56 Me. 390; State ex rel. v. Carr, 67 Mo. 38; Barber Asphalt Pav. Co. v. O'Brien, 107 S.W. 25; City of Sedalia v. Scott, 104 Mo.App. 607; Knopfi v. Pav. Co., 92 Mo.App. 279. (2) Was the advertisement for the receipt of bids made in accordance with the requirements of the charter and ordinances of the city? Sec. 12, art. 17, charter of Kansas City; sec. 811, Revised Ordinances of Kansas City of 1898; Clopton v. Taylor, 49 Mo.App. 126; St. Joseph ex rel. v. Landis, 54 Mo.App. 324; State v. Green, 66 Mo. 631; Ex parte Dodge, 7 Cowen 147; Anderson v. Baughman, 6 Mich. 298; Franklin v. Holden, 7 R. I. 215; Russell v. Croy, 164 Mo. 93. (3) In any event the taxbills were prematurely issued. Sec. 10, art. 9, charter; Quest v. Johnson, 58 Mo.App. 54; sec. 18, art. 9, p. 154, charter and Revised Ordinances of K. C., 1889; McQuiddy v. Brannock, 70 Mo.App. 553; Bank v. Payne, 31 Mo.App. 512; Heman Construction Co. v. Loevy, 64 Mo.App. 437; Brick Mfg. Co. v. Hamilton, 51 Mo.App. 120; Brady v. Rogers, 63 Mo.App. 222; St. Joseph ex rel. v. McCabe, 58 Mo.App. 542; St. Louis v. Clemens, 49 Mo. 552; Burke v. Kansas City, 34 Mo.App. 570; Kimball v. Brawner, 47 Mo. 398; Heman v. Gerardi, 96 Mo.App. 231.
William R. James for respondent.
(1) The ordinance providing for the sewer became effective whether the mayor signed it or not. Secs. 6, 7 and 8, art. 3, charter; Saleno v. City of Neosho, 127 Mo. 635; Knight v. Railroad, 70 Mo. 231; Harpending v. Haight, 39 Cal. 189; Allentown v. Grim, 109 Pa. St. 113; Penn Gas Co. v. Scranton, 97 Pa. St. 538; Truesdale v. Rochester, 33 Hun 574; Terre Haute v. Volker, 129 Ill. 540; Doty v. Lyman, 166 Mass. 318; Woodruff v. Stewart, 63 Ala. 206; Erie v. Bier, 10 Pa.Super.Ct. 381. (2) The ordinance was properly authenticated and the signature of the mayor cannot be questioned. Secs. 12, 14, art. 3, charter; Pierce v. Right, 45 Howard Pr. 1; Gaither v. Tax Collector, 40 La. Ann. 362; Wier v. State, 96 Ind. 311; Third School Dist. v. Atherton, 12 Metc. 105; Stevens v. Bay City, 26 Mich. 44; Eddy v. Wilson, 43 Vt. 163; Crommett v. Pearson, 18 Me. 344; Sawyer v. Manchester, 62 N.H. 135; Ball v. Pike, 53 N.H. 473; State v. Main, 69 Conn. 123; Gilbert v. New Haven, 40 Conn. 102. (3) The publication of the advertisement for bids was valid although not published on Sunday. Sec. 2240, R. S. 1899; Ex parte Fiske, 72 Cal. 125; Bank v. Williams, 46 Mo. 17; Cattell v. Dispatch Publishing Co., 88 Mo. 356; Maloney v. Railroad, 122 Mo. 106. (4) The work was completed prior to the issue of the taxbills. Sec. 18, art. 9, charter; Hund v. Rackliffe, 192 Mo. 312; Bank v. Haywood, 62 Mo.App. 550; Wewell v. Cincinnati, 45 Ohio St. 407; Johnson v. Duer, 115 Mo. 366; Cremer v. Bates, 49 Mo. 523; Neenan v. Smith, 60 Mo. 290; Verdin v. St. Louis, 131 Mo. 26; Kiley v. Forsee, 57 Mo. 390; Newby v. Platte County, 25 Mo. 258; Elliott on Roads and Streets (2 Ed.), sec. 586; 2 Cooley on Taxation (3 Ed.), p. 1280; Dixon v. Detroit, 86 Mich. 516; Motz v. Detroit, 18 Mich. 494; Allen v. Woods, 45 S.W. 106; Asphalt Paving Co. v. Ullman, 137 Mo. 543; Steffens v. Fox, 124 Mo. 630; Cole v. Schrainka, 105 Mo. 303; People ex rel. v. Whidden, 191 Ill. 374; Chance v. Portland, 26 Ore. 286.
This is an action in equity against the defendants as owners and holders of certain taxbills, issued against the appellant's property, some eighty-three lots in J. L. Porter's second subdivision and addition to Kansas City, by which it is sought to have said bills canceled by the decree of the court and the apparent lien of said taxbills removed from the title to said lots.
To the defendant Construction Company had been let a contract for the construction of a sewer in sewer district number 227, which was confirmed by an ordinance of the council of Kansas City, on the 13th of May, 1901; and it proceeded with the execution of the work provided for in said contract, and the ordinance under which it was let, and claimed to have completed the same in accordance with its said contract on the 14th of September, 1901, on which date the city issued and delivered to the company the taxbills which are the subject of complaint, and thereupon the plaintiff brought this action for the cancellation of said bills against the said property, on September 10, 1902.
The grounds as set forth in the petition on which the said bills are assailed were:
First, that the ordinance No. 16521, which provided for the construction of the sewer and the letting of the contract for that purpose, and No. 16915 confirming the contract with the defendant company, were not enacted pursuant to the charter provisions in that behalf, in that, while purporting to have received the signature and approval of the mayor of the city, they, in fact, had not been signed by the mayor, but were signed and approved by his private secretary.
Second, that the notice of the letting of the contract was not published ten successive days within the twenty days next preceding the time for opening the bids, in that said publication was omitted from the newspapers during the period of publication on the 7th and 14th of April, which were Sundays.
Third, that the defendant company never completed the construction of said sewer prior to the issuance of the bills in question, and such completion of said work has never been done, and the particulars in which it is claimed that the contractor failed in completing the sewer are as follows:
Fourth (a) that said contract provided that the excavation shall be done by open cut from the surface except where tunneling is expressly permitted or directed by the city engineer, and that no tunneling was in any manner permitted or directed by the city engineer; but notwithstanding, the contractor, in all parts of the work which was done in earth excavation adopted the method of tunneling by alternating a section of tunnel with open excavation, instead of doing said work by open cut from the surface as required; and that by reason of such manner of doing said work, it was impossible to fill said trenches and tunnels in a compact manner, as required, and the same was not, in fact, done. (b) That when a trench is in rock formation, the filling required by the contract was that the same be filled with clay to a point two feet above the top of the sewer, provided that the rock from the trench might be used with an equal amount of earth; but no stones of greater dimensions than six inches should be used, and that the filling was required to rammed and tamped; and that 3,258 feet of said sewer was laid in trenches and excavated through rock, in which the contractor did not use earth or clay, as required, but, on the contrary, the rock taken from the trench was dumped into the trench as filling material. (c) That said contract further provided that all surplus materials from the trenches should be hauled away to such places within a distance of six hundred feet as might be designated by the engineer, and deposited according to his directions; and if no such place was designated, the contractor should be bound to remove the surplus at his own risk and cost; and said contractor, in violation of said requirement, failed to remove the surplus material, but left large quantities thereof dumped upon plaintiff's lands, situated in the neighborhood of said sewer work. (d) That the contractor further failed to complete said contract in this: That manholes were required to be built in the line of said sewer at designated heights, and that the outside of all manholes should be thoroughly plastered with cement mortar; that twenty-nine of such manholes were provided to be built by said contract and ordinance, and the contractor omitted to finish and complete any of them, in that none of these manholes were plastered outside, as required. (e) That it was required that rubble masonry in the construction of said sewer should be built of the best quality of limestone, laid in cement mortar, the stone to be of uniform size, generally not less than two feet square in area and...
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