Sheehan v. Owen

• Decision Date: 31 October 1884
• Parties: SHEEHAN v. OWEN, Appellant.
• Court: Missouri Supreme Court

82 Mo. 458

SHEEHAN

v.OWEN, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. SILAS WOODSON, Special Judge.

AFFIRMED.

Samuel B. Green for appellant.

The petition does not state a cause of action. Egerman v. Hardy, 8 Mo. App. 313; Neenan v. Smith, 50 Mo. 530; City, etc., v. Clemens, 49 Mo. 554; Weber v. Schergens, 59 Mo. 393. The notices given by the city engineer did not comply with the ordinances of the city, and the contract was thereby vitiated. Brady v. City, 20 N. Y. 312; Riley v. Oppenheimer, 55 Mo. 375. The publication of the notice did not meet the requirements of the ordinance. The mayor and council did not act concurrently in awarding the contract as they should have done. Thompson v. City, 61 Mo. 283; Saxton v. St. Joseph, 60 Mo. 158; Irvin v. Devors, 65 Mo. 627; Saxton v. Beach, 50 Mo. 489; Graham v. Carondelet, 33 Mo. 268.

Vinton Pike & B. R. Vineyard for respondent.

To recover for street improvements, under the charter of the city of St. Joseph, the contractor can look alone to the property abutting on the street improved. The charter prohibits the city from becoming liable “in any manner whatever” for work of this character. Acts 1865, p. 435, close of § 5; Kiley v. City of St. Joseph, 67 Mo. 491. As the contractor performing the work is absolutely remediless unless he can recover from the property owners, the courts have been inclined to hold, in cases of this character, that only a substantial compliance with the charter and ordinances of the municipality need be observed by the municipal authorities in order to furnish a right of recovery to the contractor. Says the Supreme Court: “We are not inclined to think that the plaintiff need be prepared to prove that all the formalities, which the city ordinances may prescribe, have been observed.” City of St. Joseph v. Anthony, 30 Mo. 542; City of St. Louis, etc., v. De Nave, 44 Mo. 139. Under the charter of the city of St. Joseph, the tax bills make a prima facie case. In the language of this court in construing that charter: “The bills make a prima facie case of the facts and liabilities stated in them, and present a valid claim until rebutted by countervailing evidence.” Neenan v. Smith, 60 Mo. 294; Ess v. Bouton, 64 Mo. 105; Acts 1865, p. 435, § 5; City, ctc., v. Armstrong, 38 Mo. 33. The objection to the petition, as presented in the first points of defendant's brief, is not well taken. The objection is not well taken that no profile was made by the engineer for the macadamizing, curbing or guttering ordered to be done; the profile was intended to apply to bridges and structures, etc. Kiley v. Cremor, 51 Mo. 543; Sheehan v. Gleason, 46 Mo. 104, 105. It was not necessary that the mayor should sign the motion or resolution on which the contract was made. Knight v. Railroad Co., 70 Mo. 246.

HENRY, J.

By this suit plaintiff seeks to recover of defendant the amount of two special tax bills, issued by the city of St. Joseph to plaintiff, against two lots of defendant for their proportion of the cost of macadamizing, paving and curbing the street upon which they front, and in his petition the ordinances of the city under which the work was done and all other necessary facts were alleged, unless the following point made by defendant is well taken, viz: that the petition shows a departure from the rule of assessment prescribed by the charter, in that the lots in question were charged with the work done in front of them and not in proportion to the entire cost of the work on the street. The allegation in the petition is that: “By virtue of section 5 of an act entitled an act to amend the charter of the city of St. Joseph, the cost of performing said work adjoining and fronting on the street so improved and by virtue of section 5 of said act the city engineer who had charge of the work when the same was fully completed computed the cost thereof and assessed the same as a special tax against the property upon and adjoining the work done, and also charged each lot of ground in proportion to the frontage thereof with the cost of constructing, reconstructing and repairing the intersections of the next adjoining streets, alleys and other public highways in a manner by said officer deemed equitable.” The ordinance requires the cost of the entire work, including cross-walks, etc., at the intersections of adjoining streets and, also, all the work done in front of all the lots to be computed, and that against each lot an amount of the cost should be assessed in the proportion its frontage bears to the aggregate frontage of all the lots fronting upon the work.

We think that the allegation in the petition substantially avers that this was done. It is that: “The engineer who had charge of the work when the same was fully completed.” What work? Manifestly the entire work upon the street. It could not be said that the work on the street was completed when it was only finished in front of one lot. O'Rourk's contract, assigned to plaintiff, was for the entire work and he was entitled to no compensation until he had completed the work he had undertaken. The answer was a general denial and a special plea of an ordinance of said city passed in June, 1879, which, whenever any public improvements should be ordered by the city, requires the city engineer to advertise for proposals to do the work, first placing upon file, in his office, a plan or profile of the work accompanied by specifications to be open at all reasonable times for public inspection, and that the advertisement for proposals should be inserted in the official paper of the city and continued for at least ten days. The answer further alleged that no plan, or profile, or specifications was ever placed on file in the engineer's office, and that the engineer did not advertise for proposals, as required by the ordinance. That the bids were not opened as required, etc., nor was the contract let to the lowest bidder, nor was plaintiff's assignor the lowest bidder, nor did the mayor and council award the contract to O'Rourk. On the trial plaintiff had judgment, from which defendant has appealed.

It is conceded that no profile or specifications were filed in the engineer's office; but it was proved that it was not customary to make profiles of that kind of work but only of bridges and similar structures, and that the work in this instance was let according to the usual course pursued before and since. We cannot see that a profile of the work in question was necessary to enable one to bid on it intelligently. It consisted of macadamizing, paving and guttering. A view of the street upon which the work was to be done, with the ordinance before the bidder, served better than a profile to give an idea of the extent and character of the work. The ordinance ordering the work expressly stated of what materials and the manner in which the work was to be done, and the precise quality of the work upon the street and was as minute and exact in these particulars as could be required in any specifications the engineer might have prepared. We do not think that plaintiff should, as defendant would have him, sustain...