State ex rel. Dolman v. Dickey

• Decision Date: 26 May 1921
• Parties: THE STATE ex rel. JOHN E. DOLMAN, Appellant and Respondents, v. C. E. DICKEY, et al., Respondents and Appellants
• Court: Missouri Supreme Court

231 S.W. 582

288 Mo. 92

THE STATE ex rel. JOHN E. DOLMAN, Appellant and Respondents, v. C. E. DICKEY, et al., Respondents and Appellants

Supreme Court of Missouri, Second Division

May 26, 1921

Cross-Appeals from Buchanan Circuit Court. -- Hon. Thomas B Allen, Judge.

Affirmed.

John E Dolman for relator.

(1) The constitutionality of Section 8840, R. S. 1909, as construed by this court in its opinion of the first appeal of this case, was not raised or passed upon in that case and therefore, upon that question, the decision of this court therein does not operate as an estoppel. State ex rel. St. Joseph Water Co. v. Eastin, 213 S.W. 59. (a) While in the absence of cogent or convincing reasons shown this court on a second appeal will not open up and reconsider questions adjudicated upon a former appeal, yet where such reasons are clearly shown, and especially where the former ruling inadvertently so construed a statute as to make it unconstitutional or overruled some sound and well settled principle of constitutional law, such as was done by this court on the former appeal of this case, this court will have no hesitancy whatever in overruling the former decision and reexamining on the second appeal. Russell v. Railway, 242 Mo. 21; National Bank v. Donnell, 195 Mo. 570; Machinery Co. v. Ramlose, 237 Mo. 527; Gracey v. St. Louis, 221 Mo. 1; Paget v. Smith, 205 Mo. 125; Wilson v. Railroad, 123 Mo. 131; Bird v. Sellers, 122 Mo. 32; Boone v. Shackelford, 66 Mo. 497; Hamilton v. Marks, 63 Mo. 172; Chambers v. Smith, 30 Mo. 158; Bealey v. Smith, 158 Mo. 522-3. (2) In holding and deciding that Section 8840, R. S. 1909, gave the Board of Public Works exclusive jurisdiction to decide all questions as to the proper construction of the work and the meaning of contracts, renders said statute unconstitutional in that it deprives appellant of its property without due process of law and of the equal protection of the laws in violation of the 14th Amendment of the United States Constitution. Ohlmann v. Sawmill Co., 222 Mo. 66; Womach v. St. Joseph, 201 Mo. 482; Jones v. Yore, 142 Mo. 44; Wilcox v. Yore, 142 Mo. 44; Wilcox v. Phillips, 260 Mo. 664. (a) "The guarantees of due process require that all administration proceedings affecting property rights shall be subject to review in the courts and a judicial determination made on notice and a hearing." 12 Corpus Juris, 1241, cases cited; Ry. Co. v. State, 134 U.S. 457, 33 L.Ed. 970; Smyth v. Ames, 169 U.S. 466, 42 L.Ed. 819; Ry. Co. v. Tompkins, 176 U.S. 173, 44 L.Ed. 420; Hager v. Reclamation Dist., 111 U.S. 708. (b) Law in its regular course of administration through the courts of justice is due process and only when this is secured by the law of the State is the constitutional requirement satisfied. Leeper v. Texas, 139 U.S. 468; Ry. Co. v. Iowa, 160 U.S. 389. (3) In holding and deciding that the finding of the Board of Public Works that the contract in question had not been substantially complied with was conclusive upon the contractor allows the city to take his property for a public use without compensation, contrary to Sec. 21, Art. 2, Mo. Const., and deprives him of his property without due process of law, contrary to Sec. 30, Art. 2, Mo. Const., and contrary to the fourteenth Amendment of the United States Constitution. Railway v. Chicago, 166 U.S. 226. (a) "Where the taking is under an administrative regulation the defendant must not be denied the right to show that as a matter of law the order was so arbitrary, unjust or unreasonable as to amount to a deprivation of property in violation of the fourteenth Amendment." State v. Ry. Co., 224 U.S. 524. (4) In holding and deciding that the finding of the Board of Public Works that the contract in question had not been substantially complied with was conclusive upon the contractor and that he had no right to have that question judicially determined in a court of justice deprives him of the right guaranteed to him under Sec. 10, Art. 2, Mo. Const. Cement Co. v. Cas. Co., 225 Mo. 22; Asphalt Co. v. Ridge, 169 Mo. 387; State ex rel. v. Smith, 177 Mo. 69; Construction Co. v. Coal Co., 205 Mo. 62. (a) It is the exclusive province of the courts to construe the meaning of contracts, and plaintiff was entitled to show that the Board of Public Works misconstrued the contract. Williams v. Railway, 112 Mo. 493; Scott v. Realty Co., 241 Mo. 128. (b) Whether or not there was a "substantial compliance" with the contract was a judicial question to be determined by the courts upon a disagreement of the contracting parties over that issue. Boyer v. Kansas City, 205 S.W. 874; Mullaly v. Greenwood, 127 Mo. 138; Berthold v. Const. Co., 165 Mo. 280.

A. F. Lindsay, City Counselor, and C. W. Meyer, Assistant City Counselor, for defendants.

(1) Under the contract by virtue of which the work in question was done, tax bills cannot be issued for only a portion of the work. (a) The contract itself provides that, tax bills were not to be issued until the work had been fully completed, according to specifications and to the satisfaction of the Board of Public Works. (b) According to the following authorities the contract in this case is not severable. McGowan v. United States, 35 Ct. Cl. 606; Broxton v. Nelson, 103 Ga. 327, 30 S.E. 38; 13 C. J. 562, 563.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C.

On November 8, 1916, relator filed, in the Circuit Court of Buchanan County, Missouri, a petition for mandamus to compel respondents to issue and deliver to him certain tax bills, to pay for the construction of pavement on a street in St. Joseph, Missouri, a city of the first class. The relator is the assignee of the Standard Construction Company, the contractor in performance of the work. Respondents made return and the circuit court aforesaid, after hearing the evidence, found the issues in favor of relator and granted a peremptory writ. Said defendants, in due time, appealed the cause to this court. Upon a hearing of the case, we reversed it outright, as shown in the opinion of Commissioner White, reported in 219 S. W., at pages 363 and following. Relator filed in this court a motion for re-hearing. In support of said motion, this court was requested to hold, that the contract mentioned in petition was severable, and that the work on the sidewalk and curbing mentioned therein, was substantially complied with, etc. Thereupon, at the instance of relator (219 S.W. 368), the opinion of Commissioner White was modified and the cause remanded, in order that the trial court might ascertain whether the construction of the curbing and sidewalk was in accordance with said contract, and could be separated from the paving, in determining the price to be paid for same, etc. The motion for re-hearing, after said modification, was thereupon overruled. Upon the filing of the opinion and mandate of this court in the circuit court aforesaid, the latter proceeded to dispose of the case upon the petition and return aforesaid under the directions of this court for the purposes aforesaid.

It appears from defendants' bill of exceptions herein that relator, in the re-trial of the case, offered in evidence the bill of exceptions and record in the case made up at the former trial. Other evidence was offered by relator in support of his contention.

On March 29, 1920, the circuit court entered the following judgment after said re-trial:

"Now on this day comes the plaintiff by John E. Dolman its attorney and also come the defendants, by C. W. Meyer, their attorney and the mandate and opinion of the Supreme Court in said cause, remanding the same to this court for further proceedings with reference to the sidewalk, curb, and driveways, having been filed and the said cause in accordance with said opinion, now coming on to be heard and the record upon the former trial of this cause, the bill of exceptions and the original contract having been introduced in evidence and the court having heard the arguments of counsel and being fully advised in the premises, finds that the sidewalks curbing and driveways can be separated from the paving of the roadway and that the prices therefor are different from the price charged for said driveway, to-wit: For all curbing taken up and reset per linear foot, fifteen cents. For new (artificial concrete stone) curbing furnished and set per linear foot, forty-four cents. For (artificial concrete stone) sidewalk per square foot, fourteen cents and for concrete driveways per square foot, twenty cents.

"And the court further finds that all of said sidewalks, curbing and driveways were constructed in accordance with the contract and that plaintiff is entitled to have tax bills issued therefor according to the terms of said contract, but that under said decision of the Supreme Court, plaintiff is not entitled to have tax bills issued in payment for the paving of the roadway provided for in said contract.

"IT IS THEREFORE ordered, considered and adjudged that a peremptory writ of mandamus issue against said defendants and against the Board of Public Works of the City of St. Joseph as now constituted and the City Engineer of said city, commanding them to issue and deliver tax bills to said John E. Dolman, relator herein, for all sidewalks, curbing and driveways constructed under said contract, in accordance with the prices contained therein and that the City Engineer certify, authenticate and sign the same to the end that the same may be established as a lien against the several pieces and parcels of land liable for such improvement.

"That plaintiff have and recover interests on said tax bills at the rate of 8% per annum from the date of his demand therefor to-wit, January 27, 1915, and that said relator have and recover of said defendants his...