Pryor v. Kansas City

• Decision Date: 19 December 1899
• Citation: Pryor v. Kansas City, 153 Mo. 135, 54 S.W. 499 (Mo. 1899)
• Parties: PRYOR v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

54 S.W. 499

153 Mo. 135

PRYOR v. KANSAS CITY, Appellant

Supreme Court of Missouri, First Division

December 19, 1899

Appeal from Jackson Circuit Court.-- Hon. J. H. Slover, Judge.

Affirmed.

R. B Middlebrook for appellant.

(1) The petition fails to state a cause of action.It omits to aver that a definite amount of money was first appropriated by the common council for the liquidation of all pecuniary liability of the city under plaintiff's alleged contract, and it fails to state that the ordinance contemplating the payment of money to plaintiff contained the indorsement of the city comptroller to the effect that sufficient unappropriated means stood to the credit of the O. K. Creek sewer fund to meet the requirements of constructing division 4 of the sewer as provided in plaintiff's ordinance and contract.Art IV, sec. 30, K. C. Charter;Ib., art. III., sec. 2;Smith Canal and Bridge Co. v. Denver,20 Colo. 84;Bladen v. Philadelphia,60 Pa. St. 464;McDonold v Mayor,68 N.Y. 28;McCoy v. Briant,53 Cal. 247;Lethbridge v. Mayor,133 N.Y. 232;Smith v. City of Newberg,77 N.Y. 130.(2)The court should have given instructions 2 and 3, enforcing article IV, section 30, and article III,section 2.Mister v. Kansas City,18 Mo.App. 217;Keating v. Kansas City,84 Mo. 415;Cheney v. Brookfield,60 Mo. 54;Crutchfield v. Warrensburg,30 Mo.App. 456;Peterson v. Mayor,17 N.Y. 449;Walcott v. Lawrence Co.,26 Mo. 272;Heidelburg v. St. Francois Co.,100 Mo. 69;Sturgeon v. Hampton,88 Mo. 213;Saline Co. v. Wilson,61 Mo. 230;Globe Furniture Co. v. Dist. No. 7,51 Mo.App. 551;City of Superior v. Norton,63 F. 357;Sutherland on Stat. Const., p. 592.These authorities and charter provisions are in harmony with the jurisprudence and state law of Missouri.Sec. 3157, R. S. 1889.(3) The last clause of article III, section 2, charter, provides that its requirements must be complied with "or it shall not be lawful to pass the said ordinance."This takes this kind of ordinances out of the general rule, announced in St. Louis v. Foster,52 Mo. 513, and classes them as defined in City of Tarkio v. Cook,120 Mo. 1, andCity of Superior v. Norton,63 F. 357.(4)Section 44 of article XVII of the charter, must be construed with the rest of the charter in pari materia, and not as a complete law in and by itself alone, disassociated from the other provisions of the charter.State ex rel. v. Hostetter,137 Mo. 636;Lamar Water Co. v. Lamar,128 Mo. 188;State ex rel. v. Barlow,48 Mo. 17.(5) The divisional opinion proceeds upon the assumption that the ordinance submitted the proposal to vote bonds, and the provisions of article XVII, section 44, of the charter, specifying with precision the purposes for which the bonds shall be voted, and for what the proceeds shall be used, have done away with the necessity for section 30, article IV, andsection 2, article III.Section 44, however, is nothing but a declaration of the common law, as announced in numerous decisions governing elections held for special purposes.Payne's Law of Elections, sec. 247;Cushing v. Bedford,105 Mass. 526;St. Louis v. Epperson, 97 Mo. 300.

Warner, Dean & McLeod for respondent.

(1) The charter with respect to the general revenues of the city provides at the beginning of each fiscal year the mayor and common council shall make an apportionment of the general funds or revenues of the city for 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 as far as the same is practicable, and that there shall be no appropriation or payment made for any revenue or fund account in excess of the amount actually collected in the treasury.(2)Section 44 of article XVII, of the charter and the ordinances enacted in pursuance thereto, did appropriate the money for the particular work, and if this appropriation was not sufficient, complete and full, then there can be no appropriation.The fund was secured by the voting of bonds and the sale thereof for particular improvements, and could be used for no other.The charter itself appropriated the fund, and the subsequent ordinances likewise appropriated it.Both provided in express terms that the fund shall be applied to the construction of a public sewer.Any other appropriation would have been as idle a ceremony as it would have been an ineffectual one.The city on the one part, and the plaintiff on the other, contracted for a particular improvement, and with reference to a particular fund with which to pay for it.When the contract was made with Pryor there had been appropriated and set aside by the charter and the ordinances a sufficient sum to meet the liability of the city with respect to said contract.(3) Our contention is that the other provisions of the charter which the appellant refers to, have no possible application to this particular case any more than they had to the construction of the city hall.Those provisions had reference merely to the ordinary contracts which are created from time to time in the ordinary administration of the affairs of the city, and not to these special improvements specifically provided for in the charter, are to be acquired in a special manner, as by holding an election and voting bonds under a mandatory instruction set out in the charter and in the ordinances themselves that the funds derived from the sale of the bonds "shall be applied" to such special improvements, and no other.Meyer v. Porter,65 Cal. 57;Budd v. Budd,59 F. 735.See, also, Water Co. v. City of Aurora,129 Mo. 540;Lamar Water & Electric Light Co. v. City of Lamar, 128 Mo. 188.

VALLIANT, J. Gantt, C. J., Brace, and Robinson, JJ., concur.Burgess, Marshall and Sherwood, JJ., dissent.

OPINION

In Banc.

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:

Sec. 30, art. IV."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.Any member of the common council who shall knowingly vote for any appropriation of money or the making of any contract in violation of this charter . . . . shall be guilty of a misdemeanor," etc.

Sec. 2, art. III."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 indorsement 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 can not 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 of article XVII:

"Sec. 44.The common council may be ordinance within the limitations and in conformity to the Constitution of the State, submit to the qualified voters of the city,...