Smith v. City of Westport

• Decision Date: 07 March 1904
• Citation: 79 S.W. 725,105 Mo. App. 221
• Parties: SMITH v. CITY OF WESTPORT et al.
• Court: Missouri Court of Appeals

79 S.W. 725

105 Mo. App. 221

SMITH v. CITY OF WESTPORT et al.

Kansas City Court of Appeals. Missouri.

March 7, 1904.

MUNICIPAL CORPORATIONS—STREET IMPROVEMENTS — RESOLUTIONS — DESCRIPTION OF WORK—GRADE — BIDS — ADVERTISEMENTS — PASSAGE OF ORDINANCE—CONTRACTS—PERFORMANCE—TIME—DEFAULT—WAIVER.

1. Where the board of aldermen of a city of the fourth class failed to describe the work of bringing a street to be improved to the established grade in the resolution, as required by Rev. St. 1899, § 5988, which section was one of the provisions of the city's charter, tax bills issued against the property of abutting owners in payment for the improvement were void.

2. A city council has power to advertise for bids and contract for paving a street under a proper resolution before passing an ordinance ordering the work to be done.

3. Where a city ordinance and contract providing for the improvement of a street required the work to be done within 60 days, and declared that time was to be an essential provision of the contract, and the work was not performed within the time, tax bills levied therefor were void.

4. Where a city ordinance for a street improvement specified the time for performance, and the contract provided that such time was an essential provision thereof, the city council had no power to waive the contractor's default by extending the time.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Helen F. Smith against the city of Westport and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

C. H. Nearing, for appellant. Karnes, New & Krauthoff, for respondents.

BROADDUS, J.

This is a proceeding in equity to remove from the title of plaintiff's property the lien of certain tax bills issued by the city of Westport, a city of the fourth class, for the improvement of Holmes street between Thirty-First and Thirty-Third streets, on which her property faced. On June 3, 1896, the city council adopted a resolution declaring that it was necessary that Holmes street, between the streets named, be macadamized and curbed, which resolution further declared that the general revenue fund of the city was not in a condition to warrant an expenditure to bring the street to the established grade. On July 11, 1896, a notice to contractors that sealed proposals would be received by the city engineer until 5 o'clock p. m., Saturday, July 18, 1896, for grading, curbing, and macadamizing the street in question, was published, and that plans and specifications could be seen at the office of the city clerk. On July 13th following an ordinance was passed by the city council providing material, without terms and conditions of construction of the work, and on July 18th next thereafter, bids were opened for the construction of the work. The only publication had of this notice to contractors after the passage of said ordinance was on said day when the bids of the contractors were opened. The last-named ordinance has the following provision: "The work shall be completed within 60 days from the time a contract therefor binds and takes effect and shall be paid for in special tax bills issued against and upon the lands charged with the costs hereof according to law, which work the board of aldermen deem it necessary to have done." The finding and judgment were for the defendants.

The contract for the work was dated the 17th of August, 1896. It contains the following provision as to time, viz.: "The work embraced in this contract shall begin within ten days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the engineer shall specifically direct otherwise in writing) with such force as to secure its full completion within sixty days from its confirmation. The limit of beginning, rate of progress, and time of completion being essential conditions of this contract." The work not having been completed within the time provided in the contract, afterwards, on October 8th, an ordinance was passed extending such time to January 1, 1897. The work was completed and accepted on December 17, 1896. Plaintiff contends that the tax bills are illegal for the following reasons: (1) Because the resolution declaring the work necessary did not include and describe...