Seaboard Nat. Bank v. Woesten

• Decision Date: 13 December 1898
• Parties: SEABOARD NAT. BANK OF NEW YORK v. WOESTEN et al.
• Court: Missouri Supreme Court

48 S.W. 939

147 Mo. 467

SEABOARD NAT. BANK OF NEW YORK v. WOESTEN et al.

Supreme Court of Missouri.

December 13, 1898.

CITY CHARTER — CONSTRUCTION — ORDINANCES — CONTRACTS FOR STREET IMPROVEMENTS — PRESUMPTION — LOCAL ASSESSMENT — VALIDITY — BURDEN OF PROOF — MUNICIPAL AUTHORITIES — EXERCISE OF DISCRETION.

1. St. Louis City Charter, art. 3, § 26, provides that the mayor and assembly shall have power by ordinance to establish, open, or otherwise improve all streets, public ground, and squares, and provide for the payment of the costs thereof, in the manner in the charter prescribed; and also to provide for grading, lighting, cleaning, and repairing the same, and to construct and keep in repair all bridges, streets, etc., and to regulate the use thereof. Held to give the municipality the right to require of a contractor making a street improvement any guaranties that a private person might take to secure the perfection of work.

2. St. Louis City Charter, art. 6, § 27, provides that the assembly shall have no power directly to contract for any public work or improvement, or repairs thereof, or to fix the price or rate therefor; but the board of public improvement shall, in all cases except of repairs requiring prompt attention, submit to the assembly estimates of cost, and, under direction of the ordinance, advertise for bids, as provided for purchases by the commissioners of supplies, and let out said work by contract to the lowest responsible bidder, subject to the approval of the council. Held not to prohibit a paving contract by which contractors guaranty their work for a certain time, and agree to make all repairs which may, from imperfect material, become necessary within that time.

3. The validity of city ordinances should be presumed, and the ordinance be upheld, unless a repugnance to the charter clearly appears.

4. The burden rests on a taxpayer, seeking to avoid a local assessment on the ground of fraud and collusion between the municipal officers and contractors in the passage of the ordinance therefor, to prove that, by letting the work of construction and maintenance to the lowest bidder, an unauthorized charge was imposed on his property.

5. Under St. Louis City Charter, art. 3, § 26, giving the mayor and assembly the most ample power and control over the streets of the city, and general authority to construct, pave, and keep them in repair, they are authorized to exercise discretion in matters of detail.

6. A taxpayer cannot object to a local assessment in favor of a contractor on the ground of fraud on the part of municipal officers letting the contract, where the contract was not let in violation of the city charter, and the contractor did not participate in the fraud.

7. Where the only limitation on the discretion of city authorities in contracting for public works is that contracts shall be let to the lowest bidder, there is no objection to their advising contractors that bids in excess of a certain charge for a particular street improvement would not be considered.

8. Under St. Louis City Charter, art. 6, § 18, providing that repairs of streets shall be paid for by the city and reconstruction by the property owners, a taxpayer cannot object to an assessment for the costs of repaving, where it did not appear that the bid for repaving was higher on account of a maximum bid fixed by the board of public improvement for maintenance of the paving, in connection therewith, for 10 years, to be paid for by the city, than it would have been for perfect work, without the contract for maintenance, which was, in effect, a guaranty thereof.

Gantt, C. J., and Burgess, J., dissenting.

In banc. Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by the Seaboard National Bank of New York, assignee, against Frederick Woesten and others. There was a judgment for defendants, and plaintiff appealed to the St. Louis court of appeals. The judgment was affirmed, and, on motion for rehearing, the appeal is certified to the supreme court. Reversed.

Boyle, Priest & Lehmann, for appellant. Hiram J. Grover and Dennis Devoy, for respondents.

MACFARLANE, J.

This is an action to recover the amount of a special tax bill assessed against the property of defendants in favor of the Barber Asphalt Company, and assigned to plaintiff. The petition charges that the assessment was made pursuant to authority of Ordinance No. 16,943, approved November 26, 1893, which provides for the reconstruction of Grand avenue, upon which defendants' said property abuts. The answer is in the nature of a cross bill in equity. It sets out in detail the provisions of the charter of the city of St. Louis, the general ordinance providing for the construction and reconstruction of streets, and the proceedings under which the improvement of Grand avenue was made. It charges that for various specified reasons, which will be stated in the opinion, the ordinances, contract, and tax bill are null and void, and prays that the tax bill be set aside. The reply is, in effect, a general denial of the new matter charged in the answer.

The case was tried upon the facts, most of which were agreed upon. Judgment was for defendants, and plaintiff appealed to the St. Louis court of appeals, where it was affirmed on authority of the decision of this court in the case of Verdin v. City of St. Louis, 131 Mo. 32, 33 S. W. 480, and 36 S. W. 52. Afterwards, on motion for a rehearing, the appeal was certified to this court (46 S. W. 201), on account of a supposed conflict between that decision and the later decision in the case of Paving Co. v. Ullman, 38 S. W. 458.

The following is a summary of the charter provisions, the ordinances, and proceedings under which the improvement of Grand avenue, which resulted in the tax bill, was made, as the same appears from the agreed statement of facts and from the evidence:

Section 27, art. 6, of the charter provides: "The assembly shall have no power directly to contract for any public work or improvement, or repairs thereof, contemplated by this charter or to fix the price or rate therefor; but the board of public improvement shall, in all cases, except in case of necessary repairs requiring prompt attention, prepare and submit to the assembly estimates of costs of any proposed work, and under direction of the ordinance, shall advertise for bids, as provided for purchases by the commissioners of supplies, and let out said work by contract to the lowest responsible bidder subject to the approval of the council. Any other mode of letting out work shall be held as illegal and void."

Section 18 of said article 6 requires "the repairs of all streets" to be paid out of the general revenue of the city, and' the paving of all streets to be "charged upon the adjoining property as a special tax," not exceeding the amount of 25 per cent. of its assessed value.

By section 26, art. 3, the mayor and assembly are given the most ample power and control over the streets of the city, and general authority to construct, pave, and keep them in repair.

General ordinance 564 (the same as 542, considered in the Verdin Case) provides, in detail, for letting contracts for street construction, and for what the contract shall require. Among other matters, it provides: "Whenever a street is to be improved, either on the motion of the board of public improvements or on petition of the adjoining property owners, the board of public improvements may submit to the municipal assembly a bill for letting in one contract the work of constructing or reconstructing such street and of maintaining it in good condition for a term of years; and after such bill has become a law the board of public improvements shall advertise for proposals including the construction or reconstruction and maintenance under the same regulations as are provided for the improvements of streets; but the advertisement shall, in addition to what is prescribed for other street improvements, state the term during which the street is to be maintained in good condition." It requires further: "The contract shall provide that the obligation of the contractor to maintain the streets in good condition shall commence one year after the completion and acceptance of the work of construction or reconstruction, and the contract price shall be paid semiannually out of the city treasury, on the certificate of the street commissioner that the work has been performed in accordance with the contract and specifications."

In canvassing the proposals, the lowest bid is required to be ascertained "by taking the aggregate amount of the cost of construction or reconstruction, as the case may be, and the total cost of maintenance, for the term of years designated by the ordinance."

The board of public improvement submitted to the assembly, and that body passed and the mayor approved, a special ordinance (No. 16,942) for the improvement of Grand avenue between St. Louis avenue and Montgomery street. Section 1 of this ordinance directs the board of public improvements to cause Grand avenue, from St. Louis avenue to Montgomery street, to be reconstructed with the best quality of Trinidad Lake asphalt, and to contract for the maintenance thereof for a period of nine years, commencing one year after the work of reconstruction is completed and accepted. Sections 2 and 3 recite the specifications, and are unimportant in this contest. Section 4 provides for a lien for the cost of reconstruction against abutting property. Section 5 makes an appropriation for the cost of reconstruction above 25 per cent. of the assessed value of the abutting property; while section 6, the last of the ordinance, makes an appropriation, in general terms, out of a fund set apart for street repairs — "reconstructed streets" — for the cost of maintenance.

Pursuant to the mandate of this ordinance, the board of public improvements advertised to let the authorized work to bidders under letting No. 3,884, "for...