Pryor v. Kansas City

• Decision Date: 05 December 1899
• Citation: 54 S.W. 499,153 Mo. 135
• Parties: PRYOR v. KANSAS CITY.
• Court: Missouri Supreme Court

54 S.W. 499

153 Mo. 135

PRYOR v. KANSAS CITY.

Supreme Court of Missouri.

December 5, 1899.

MUNICIPAL CORPORATIONS — CONTRACT — CHARTER — CITY COUNCIL — AUTHORITY — APPROPRIATION OF FUNDS — REVIEW — PLEADING.

1. A finding supported by the evidence will not be disturbed on appeal.

2. Kansas City Charter, art. 3, § 1, provides that the mayor and council shall have control of the finances and other property, except as otherwise provided, and shall have power to appropriate money for payment of debts and expenses, and to provide for taxation. Article 4, § 30, declares that the common council shall not appropriate money for any purposes in excess of the revenues of the fiscal year, actually collected and in the treasury, nor make any contract binding the city to pay money until a definite amount has been appropriated therefor, and a violation shall render such contract void. Article 3, § 2, provides that the mayor and common council shall make all necessary apportionments of the revenue to be raised for that year to pay the expenses of the several departments, and for all public works. Amended Charter, art. 17, § 44, provides that the common council may by ordinance submit a proposition at an election for the city to issue bonds to a certain amount, provided that three-fifths of the proceeds thereof be applied to the construction of a city hall, and two-fifths to the construction of public sewers. Under Ordinance No. 100, bonds were issued, and two-fifths of the proceeds were set aside for constructing a certain sewer; and, under contract thereunder, plaintiff constructed a section of said sewer, but was refused full payment therefor on the ground that his contract was void, as not complying with the restrictions of the first three sections of the charter. Held, that the mayor had control of the general current revenues derived from taxation, and that Amended Charter, art. 17, § 44, and the ordinance thereunder, by their terms, apportioned and appropriated funds therein referred to for the purposes named, and the other sections had no application thereto.

3. In an action on a contract, several alleged breaches may be stated in a single count.

Burgess, Marshall, and Sherwood, JJ., dissenting.

In banc. Appeal from Jackson circuit court; J. H. Slover, Judge.

Action by James Pryor against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

The following is the opinion of the court in division (VALLIANT, J.):

"This is a suit to recover damages alleged to have been sustained by the plaintiff for breaches of a contract with the defendant city for the construction of a portion of what is called `O. K. Creek Sewer,' within the city. There are three breaches of the contract alleged, but since the finding and judgment were for the defendant on two of them, and the plaintiff has not appealed, we are concerned only with that one on which plaintiff recovered, which consists of the failure of defendant to pay the balance claimed to be due for work done. By the terms of the contract, monthly estimates were to be furnished the plaintiff by the city engineer in charge of the work as the same progressed, which the city was to pay monthly, except fifteen per cent. to be retained until the completion of the work, and then paid to plaintiff. Five such estimates were furnished, on which the fifteen per cent. thus retained amounted to $4,302.03, which, with interest, was the sum for which there was a finding and judgment for the plaintiff in the circuit court.

"The points of defense which are really insisted upon are that certain provisions of the city charter imposing restrictions on the city officials in the matter of making such contracts were not observed. These charter provisions are as follows:

"Section 30, art. 4: `The common council shall not appropriate money for any purpose whatever in excess of the revenue of the 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 Kansas City, or imposing upon said city any liability to pay money until a definite amount of money shall first have 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 * * * and said contract or act shall be ab initio null and void as to the city for any other or further liability. And any member of the common council who shall knowingly vote for any appropriation of money or making of any contract in violation of this charter * * * shall be guilty of a misdemeanor,' etc.

"Section 2, art. 3: `No appropriation or payment shall be made from any revenue or fund account in excess of the amount actually collected and in the treasury. Within the first month of each fiscal year the mayor and common council shall, by ordinance, as far as practicable, make all necessary apportionments of the revenue to be raised for such year to the expenses of the several departments, and for all public works, under proper headings, and for such other objects as it may be necessary to provide for. All ordinances that contemplate the payment of any money shall, upon the second reading, be referred to the appropriate committee of the house in which such ordinances are introduced, who shall obtain the endorsement thereon of the comptroller, to the effect that sufficient unappropriated means stand to the credit of the fund or revenue account therein mentioned to meet the requirements of such ordinances, and that the same is in the treasury, or it shall not be lawful to pass the said ordinances.'

"In making the contract sued on, there was no attempt to follow the requirements of those two sections of the charter; and, if they should have governed the contract in suit, the plaintiff cannot recover. But the plaintiff insists that the above-mentioned sections of the charter have nothing to do with this case, and that the contract is bottomed on the following section of the amended city charter, and the proceeding thereunder, to wit, section 44, art. 17:

"`Sec. 44. The common council may, by ordinance, within the limitations and in conformity to the constitution of the state, submit to the qualified voters of the city, at any special or general election, a proposition to issue, by the city, bonds to an amount not exceeding five hundred thousand dollars: provided, that such bonds shall not be sold for less than their par value, and shall not bear more than five per cent. interest per annum; and provided further, that three-fifths of the proceeds arising from the sale of such bonds shall be applied to the construction of a city hall within the city, and two-fifths thereof shall be applied to the construction of public sewer or sewers in the city; and provided further, that the common council shall, in the ordinance submitting such proposition to issue bonds, expressly designate the location of the city hall, and the location as near as practicable of the public sewer or sewers, to the construction of which the proceeds of said bonds shall be applied.'

"Under this section an ordinance known as `Ordinance No. 100' was passed, calling a special election to vote on the proposition to issue bonds of the city to the amount of $500,000 of which the proceeds of three-fifths were to be devoted to the building of a city hall, and the remaining two-fifths to the construction of the O. K. Creek sewer. The ordinance complied with all the requirements of the section of the charter last above quoted in detail. The election was duly held July 31, 1889, and resulted in favor of the proposition. The bonds contemplated were issued and sold at a premium. The proceeds of two-fifths of the same, amounting to $203,147.20, were set apart by the officers of the city to the credit of what was known as the `O. K. Creek Sewer Fund.' Afterwards, and in pursuance of the general scheme indicated in Ordinance No. 100, Ordinance No. 3190 was passed, definitely establishing a portion of the sewer contemplated, and directing the board of public works to let the contract for the construction of the same; the work to be divided into sections, and the contracts awarded accordingly. In accordance with this authority the board of public works entered into the contract with plaintiff, sued on, for the building of one of the sections, to wit, section 4, called for in the ordinance. The estimated cost of the work under plaintiff's contract was $52,915.00. This contract was confirmed by the common council by Ordinance No. 3390. Prior to this contract there had been other sections of the sewer constructed under other contracts, and paid for out of the O. K. Creek sewer fund, above mentioned; and when the plaintiff's contract was entered into there was still in the city treasury, to the credit of this fund, $108,833.24. The work that was actually done by the plaintiff under his contract, as shown by the five estimates furnished him by the city engineer, amounted to $25,695, upon which he received $21,392.97. At the time the fifth estimate was furnished him there was in the treasury $68,058.17 belonging to this special O. K. Creek sewer fund. After the cessation of the plaintiff's work, the city let the contract for the completion of that section of the sewer to one Seested, who finished it, and the city paid him therefor $35,336.78. The petition alleges that the defendant prevented the plaintiff from completing his contract. This was denied in the answer, and it was therein charged that the plaintiff had wrongfully abandoned his contract. On this issue of fact there was evidence adduced on both sides, and the finding was for the plaintiff. There was sufficient evidence to support that finding, and it will therefore not be reviewed here. ...