Schueler v. City of Kirkwood

• Decision Date: 08 June 1915
• Docket Number: No. 13912.,13912.
• Citation: 177 S.W. 760,191 Mo. App. 575
• Parties: SCHUELER v. CITY OF KIRKWOOD,
• Court: Missouri Court of Appeals

177 S.W. 760

191 Mo. App. 575

SCHUELER v. CITY OF KIRKWOOD,

No. 13912.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Marguerita Schueler, administratrix of Charles Schueler, deceased, against the City of Kirkwood. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Thomas Bond and Walter N. Davis, both of St. Louis, for appellant. Robert C. Powell, of St. Louis, for respondent.

NORTONI, J.

This is a suit for the reasonable value of two aseptic tanks installed by plaintiff's decedent under a contract with defendant city as parcel of its public sewer system. The amount sued for is $4,700 and interest. At the conclusion of the evidence, the court directed a verdict for defendant, and plaintiff prosecutes the appeal.

Plaintiff is administratrix of the estate of her deceased husband, Charles Schueler, and sues in that capacity. Defendant, a city of the fourth class, interposes a more or less technical defense to the effect the contract for the installation of the several aseptic tanks was void; also that it was not within the power of the city.

It appears that on the 20th day of February, 1905, the city of Kirkwood, under its Ordinance No. 302, duly enacted, provided for the building and construction of a system of public sewers. The ordinance set out in detail the course, routes, dimensions, and materials to be employed in the construction of the sewer system, and provided, too, that aseptic tanks should be used in connection therewith, as is indicated on the map of the sewer system of Kirkwood, prepared by R. Ili Douglass, now on file with the city clerk of Kirkwood. By section 4 of this ordinance It was provided substantially that there should be constructed and installed three aseptic tanks which are by the ordinance declared to be a part of the public sewer system of the city, one of such tanks to be located on the southeast corner of Monroe and Taylor avenues, one to be located in St. Peters Cemetery, and one to be located at a designated point on private property. The ordinance stipulated that such aseptic tanks should be of a sufficient capacity to purify the usual dry weather flow for a population of 1,500 people, so that the sewage delivered to said tanks be purified to the extent of consumption of 90 per cent. of solids; that the effluent discharge be not putrescible and be free from color or odor, and that the tanks be built in such manner and of such material as to be satisfactory in point of strength to the city engineer; also that bids be received and contracts let for the construction of such tanks under the ordinance either as a whole or for the construction of any one or more of them; that the mayor and board of aldermen cause the aseptic tanks above provided for to be constructed by contract or contracts awarded to the lowest and best bidder, after which follows the requirements touching the matter for advertisements for bids, acceptance thereof, and requiring the same to be filed with the city clerk, etc. The ordinance further provided that, upon the award of the work by the board of aldermen, the successful bidder shall enter into a contract with the city of Kirkwood to faithfully do and perform the work in accordance with the provisions and requirements of the ordinance, and that the work should be constructed under the supervision of the sewer committee of such board, which committee is required to personally inspect the work as it progresses. Touching the matter of compensation, it is provided by the ordinance that the tanks and installation shall be paid for from a fund raised by levying a tax on all the property within the city of Kirkwood made taxable for such purposes. The ordinance directs that the contract or contracts shall be signed on behalf of the city of Kirkwood by the mayor and attested by the city clerk, who shall cause the seal of the city to be thereto affixed. Thereafter, on April 7, 1905, in pursuance of the ordinance, the board of aldermen took up for consideration bids for the installation of such aseptic tanks and acted thereon as follows, as evidenced by the records of such board:

"The board took up for consideration the bids for aseptic tanks, and the bid of Charles Schueler being the lowest and best bid, and the same * * * being within the estimate submitted to the board of aldermen by the city engineer, was accepted by the board, and the mayor directed to enter into contract with said Schueler for building said aseptic tanks," etc.

Subsequently, on the 1st day of May, 1905, in pursuance of the resolution above quoted and the foregoing ordinance, the mayor and city clerk, on behalf of the city, entered into a contract with Charles Schueler for the building of the three aseptic tanks mentioned in the ordinance, and this contract, with all its details duly executed, appears in evidence. Among other things, the contract so entered into between the mayor and Charles Sehueler recites in effect that the tanks shall be built in accordance with the requirements of the ordinance, and that the city shall have a period of one year after the completion in which to test the same before payment shall be made. The contract provides for the building of two tanks and likewise the building of a third tank upon the performance of certain matters by the city of Kirkwood which were not performed, and the third was therefore not installed. No claim is made on account of the third in this suit, which proceeds, as before stated, for the reasonable value for installing two of the tanks only. The two aseptic tanks mentioned in the petition were duly installed by the contractor, Charles Schueler, in accordance with the requirements of the ordinance and the contract and under the supervision of the sewer committee and the city engineer, so as to be completed on the 1st day of June, 1906, and ever since that date have been in use by defendant city as a part of its sewer system. Indeed, thereafter, on the 4th day of September, 1906, and again on the 10th day of September, 1907, the board of aldermen, upon the recommendation of the sewer committee and by a formal vote, approved the performance on the part of Schueler, the contractor, and accepted the tanks and, as before said, they have ever since been in use by the city. In connection with the construction of the sewer system, the city passed an ordinance levying a tax of $2.50 per $100 on the assessed valuation of all the property of the city of Kirkwood, in order to raise the money to pay for the same, and the collection of this tax was subsequently restrained by certain property holders on the theory that it was unconstitutional. However, as much or more than $23,000 was paid into the city treasury on account of such tax for the purpose of compensating the construction of the sewer system, including the aseptic tanks, when the court declared the ordinance levying such tax to be void for that it exceeded the constitutional limit of 50 cents per $100 on the valuation of the entire taxable wealth of the city. See Union Trust Co. v. Pagenstecher, 221 Mo. 121, 119 S. W. 1103. Something more than $3,000 was also paid in on account of the tax, however, thereafter, and it appears that in all the city collected over $26,000 of taxes with which to construct and pay for the sewer system, including the aseptic tanks. More than $7,000 of this tax, under the provisions of the ordinance, were levied and collected for the purpose of compensating the installation of asepic tanks, and this amount was on hand in the city treasury at the time the board of aldermen passed the resolution approving and accepting the tanks and the work installing them. But it appears that, after the decision of the Supreme Court declaring the tax void, the city diverted all of these moneys into other channels and refused to pay plaintiff...