Schulte v. Currey

• Decision Date: 29 July 1913
• Parties: STEPHEN SCHULTE, Appellant, v. H. W. CURREY and IDA B. CURREY, Respondents
• Court: Missouri Court of Appeals

158 S.W. 888

173 Mo.App. 578

STEPHEN SCHULTE, Appellant, v. H. W. CURREY and IDA B. CURREY, Respondents

Court of Appeals of Missouri, Springfield

July 29, 1913

Appeal from Jasper County Circuit Court, Division No. One.--Hon. J D. Perkins, Judge.

Judgment affirmed.

S.W Bates for appellant.

(1) To require notice to property owners to make improvements, as defendants contend is sought to be done by the ordinance referred to in their answer, has the effect to suspend the right of the city, during that time, to proceed under the charter of powers. State ex rel v. Gordon, 217 Mo 103, 118. (2) The signing of a petition for an improvement, as Mr. Currey did in this case, was a declaration on his part that he did not desire to do the work himself, but that "the city should make the improvement designated in the petition and assess his property with its due proportion of its costs, . . ." Cross v. City, 90 Mo. 1, 19. (3) In the absence of evidence positively showing that no plans and specifications were filed the recitals in the resolutions that they were on file with the city clerk and the prima facie evidence of the tax bill are conclusive. Probert v. Investment Co., 155 Mo.App. 344, 346; Jones v. Plummer, 137 Mo.App. 337, 345; R. S. 1909, sec. 9255. (4) The purpose of the estimate is to secure the judgment of the city engineer on the proper cost of improvements and to advise the council so that they may let the contract to the best advantage of the property owner. Probert v. Investment Co., 155 Mo.App. 344, 347. (5) No plans are essential where the character of the work can be otherwise ascertained as in this case from the specification ordinance. McCoy v. Randall, 222 Mo. 24; Webb City ex rel. v. Aylor, 163 Mo.App. 155, 147 S.W. 214. (6) By the resolution, and its publication, jurisdiction of the subject-matter and of the parties interested was acquired. And thereafter objections are technical. Springfield v. Weaver, 137 Mo. 650, 666; Cole v. Skrainka, 105 Mo. 303, 309; Gibson v. Owen, 115 258, 269; Gist v. Construction Co., 224 Mo. 369, 379, 380. (7) By signing the petition for the improvements in this case and appearing before the council and agreeing thereto, the defendants have waived all irregularities, and, as some cases hold, have waived all matters which even go to the jurisdiction of the council. Cross v. City, 90 Mo. 1, 18; State ex rel. v. Martin, 103 Mo. 508, 512; Baile v. City of Independence, 116 Mo. 333, 337; Hutchinson v. Fox, 15 L. R. A. (Kan.) 401. (8) A property owner cannot stand by and work progress without any effort to stop it and defeat the contractor on a technicality. Jaicks v. Merrill, 201 Mo. 91, 109.

George V. Farris and W. J. Owen for respondents.

Ordinance numbered 596 providing for city council to order the city engineer to make an estimate of the cost of the sidewalk including the grading therefor, and submit the same to the council and the council, by resolution to authorize the city clerk to serve a written notice upon the owners of each lot to construct said sidewalks within thirty days from the date thereof, according to the plans and specifications on file in the office of the city engineer, was a valid ordinance and binding on the city and was absolutely necessary before the city could order a contract for this work. Leach v. Cargill, 60 Mo. 316; City of Independence v. Gates, 110 Mo. 374. The entire proceeding in this case is void, because there was no estimate of the city engineer on file at the time these resolutions were passed; and because no plans or specifications were on file. City of Poplar Bluff v. Bacon, 144 Mo.App. 476; Paving Co. v. O'Brien, 128 Mo.App. 267; Coulter v. Construction Co., 131 Mo.App. 230; Kirksville v. Coleman, 103 Mo.App. 215; Kansas City v. Asquew, 105 Mo.App. 84. Appellant contends that the respondents are estopped by the fact that they signed a petition for certain improvements, and which petition was never acted upon, and which was not necessary. This was merely an expression and a desire that the city should do the work according to law and not that they might appropriate the respondents' property without complying with the statutory record. Perkinson v. Hoolan, 182 Mo. 189. Appellant contends that it was not proven that no estimate, plans or specifications were filed. The testimony of the city clerk covers this proposition. Appellant contends that by signing the petition for improvements, the defendants have waived all irregularities and waived all matters which go even to the jurisdiction of the council. The authorities are to the contrary. Neill v. Trust Co., 89 Mo.App. 644; Wheeler v. City of Poplar Bluff, 149 Mo. 46; State ex rel. v. Murphy, 134 Mo. 548.

STURGIS, J. Farrington, J., concurs. Robertson, P. J., being of counsel, not sitting.

OPINION

STURGIS, J.

This is a suit on five separate special tax bills issued in payment of improvements made on a street fronting defendants' property in Webb City, Missouri, a city of the third class. Two of the tax bills are for sidewalks and three for curb and gutters. The trial court on a trial before the court sitting as a jury declared the tax bills void and entered judgment for the defendants.

Only part of the defenses set forth in the answer attacking the validity of these tax bills need be mentioned. The power and authority of the city to cause the improvements in question to be made and paid for by special tax bills against the abutting property is found in sections 9254 and 9255, Revised Statutes 1909. Acting under the authority there given the city passed three separate resolutions declaring this work and improvements necessary to be made. These resolutions are similar in form, refer to different parts of the improvements and declare that "the same shall be done according to plans, specifications and estimates of the city engineer, on file in the office of the city clerk, and general ordinance No. 596, adopted the 31st day of July, 1905." The ordinance referred to in these resolutions is a general ordinance of the city relating to constructing sidewalks, curbing and guttering, etc., and the payment therefor by special tax bills. This general ordinance contains the following provisions: "On the receipt of such estimate, the council shall by resolution authorize the city clerk to serve a written notice upon the owners of each lot along the street for which there has been a petition to construct or reconstruct sidewalks, notifying such owner or owners of said lot or lots, that unless a sidewalk is constructed along said street in front of said lot within thirty days from date thereof, according to the plan and specification on file in the office of the the city engineer, or within thirty days from date of said notice, a bond shall be entered into by such lot owner of the city, in the sum of double the estimated amount of the cost of constructing such walk conditioned on the construction of the walk within the ensuing thirty days from date of such bond. . . . It shall be the duty of the city engineer, at the expiration of thirty days' notice, to report to the council, the names of all the lot owners, if there are any, who shall have neglected to construct the sidewalk, or shall have failed to enter into bonds for the construction thereof, in compliance with the provisions of this article and thereupon the council shall proceed to let a contract for the construction of such sidewalks as hereinafter provided." This ordinance also contains a similar provision in reference to notifying property owners in regard to constructing curb and gutters. The evidence clearly shows that these requirements of the ordinance are not complied with in this instance and that no notice was given to defendants as therein required or opportunity given to construct either the sidewalk or curb and gutters. After the publication of the resolution mentioned, the city passed a further separate ordinance providing for constructing the particular curb and gutters and sidewalk now in question, the giving of notice for bids, the letting of the contract to the lowest bidder, etc. The city also passed other general ordinances containing detailed plans and specifications for the doing of this and similar work and giving in detail the methods of construction, the kind of materials to be used, etc. There is nothing, however, in any subsequent ordinance inconsistent with or in any wise repealing or superseding the general ordinance providing for notice to the property owner and giving him the privilege of doing or having done by private contract the work along the street adjacent to his lot.

The trial court held that a failure on the part of the city to comply with this provision of the ordinance rendered the tax bills void. Such clearly is the ruling of the Supreme Court in Leach v. Cargill, 60 Mo. 316, 317, where the court said: "It is well settled law in this State, as well as elsewhere, that the power of the municipal authorities is exclusively confined to the limits prescribed by the charter, and such ordinances as are passed in conformity thereto. [Kiley v. Oppenheimer, 55 Mo 374, and cases cited.] The ordinance of September 9, 1870, requiring the work in question to be done, made special provision that the city engineer should give 'the owners of property fronting on said street the privilege of doing said work in front of their property.' This ordinance was a law equally as binding upon the city as upon the citizen; and there is no warrant whatever for the position assumed by plaintiff's counsel, that the clause first quoted is merely directory. . . . These proceedings to compel the citizen to pay for improvements in front of his property, are proceedings in invitum, purely statutory, and therefore to be strictly construed. To...