Scott v. St. Louis County

• Decision Date: 14 December 1937
• Docket Number: No. 34344.,34344.
• Parties: SCOTT v. ST. LOUIS COUNTY.
• Court: Missouri Supreme Court

111 S.W.2d 186

SCOTT v. ST. LOUIS COUNTY.

No. 34344.

Supreme Court of Missouri, Division No. 1.

December 14, 1937.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

Action by Walter Scott against the County of St. Louis. Judgment for defendant, and plaintiff appeals.

Affirmed.

John A. Nolan, of Clayton, for appellant.

George E. Heneghan, of St. Louis, Co. Counselor, for appellee.

BRADLEY, Commissioner.

The county court of St. Louis county, in 1925, proceeded under what is now sections 7920-7923, R.S.1929, Mo.St.Ann. §§ 7920-7923, pp. 6787, 6788, to make certain improvements on what is called Ogden avenue. The contract to make the improvements was let to Blackburn-Crean Construction Company on a bid of $29,675.23. The construction company made the improvements, and the work was accepted by the county court, and special tax bills against the property abutting on the improved roadway were issued by the county and delivered to and accepted by the construction company. The county paid $7,500 on the work, and the balance was covered by the tax bills. The construction company collected on the tax bills an amount sufficient to reduce the balance to $10,889.28, and thereafter assigned the unpaid tax bills to plaintiff. After the assignment, plaintiff brought suit on all the unpaid tax bills. One of these suits was on tax bill No. 962, against the property of Joseph and Eliza Mareschal. It was held in that suit that the tax bill was void. The judgment of the circuit court so holding does not appear in the present record, but it is alleged by plaintiff that it was so held because "St. Louis County was without power or authority to charge any part of the expense of such roadway against the abutting property on Ogden avenue, and issue special tax bills therefor, since the petition (for the improvement) presented to the county court of St. Louis County did not, in fact, contain the signatures of a majority of the owners resident on said Ogden avenue and liable to taxation therefor."

In the present cause it was stipulated that "the petition for the improvement did not contain the signatures of a majority of the owners resident on said street and liable to taxation therefor." And it was further stipulated "that by virtue of the decision" in the suit on tax bill 962, "plaintiff has been unable to enforce said tax bill and that plaintiff is barred from recovering on all the other special tax bills."

Under the situation above reflected, plaintiff contends and so pleaded that the county is liable to him for the reasonable value of the labor and material that went into the improvement, less the amount paid, and asked judgment against the county for $10,899.28, the balance unpaid on the tax bills. Defendant denied liability generally, and pleaded clause 62A of plaintiff's assignor's contract with the county. This clause reads: "When the engineer is satisfied that the entire work has been properly completed, in accordance with the terms of the contract, and that all labor, material and other bills have been paid by the contractor, he shall in a reasonable time, make a final estimate and shall certify to the county court that the work has been completed and approved. The county court shall then issue a warrant in the amount of seven thousand five hundred dollars ($7,500.00) for the county's portion of this work and shall cause to be issued special tax bills for the balance, which tax bills shall bear interest after thirty (30) days at the rate of eight (8) per cent per annum and every such special tax bill shall be a lien against the lot or piece of ground described in same until same is paid. The contractor by his acceptance of such special tax bills properly executed shall release the County of St. Louis from all further claims, and the delivery by the county of such tax bills shall constitute an acceptance of the work called for therein."

The cause was tried before the court without a jury, and the finding and judgment were for defendant. Motion for new trial was overruled, and plaintiff appealed.

Plaintiff (appellant here) relies principally on section 12109, R.S.1929, Mo.St. Ann. § 12109, p. 6425, and Fisher v. City of St. Louis, 44 Mo. 482. Section 12109 is as follows: "If a claim against a county be for work and labor done, or material furnished in good faith by the claimant, under contract with the county authorities, or with any agent of the county lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of such work, labor and material, though such authorities or agent may not, in making such contract, have pursued the form of proceedings prescribed by law."

Counties and municipalities are, by the Constitution and statutes, safeguarded as to contracts by their agents and representatives. Section 48, article 4 of the Constitution provides: "The General Assembly shall have no power to grant, or to authorize any county or municipal authority to grant any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into and performed in whole or in part, nor pay nor authorize the payment of any claim hereafter created against the State, or any county or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void."

Section 2962, R.S.1929, Mo.St.Ann. § 2962, p. 1827, reads: "No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."

In Hillside Security Co. v. Minter et al., 300 Mo. 380, 254 S.W. 188, loc. cit. 193, it was held that section 12109 applies only where the...