State v. Dickey

• Decision Date: 06 January 1920
• Docket Number: No. 20459.,20459.
• Citation: 280 Mo. 536,219 S.W. 363
• Parties: STATE ex rel. DOLMAN v. DICKEY et al.
• Court: Missouri Supreme Court

219 S.W. 363

280 Mo. 536

STATE ex rel. DOLMAN v. DICKEY et al.

No. 20459.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

On Motion for Rehearing, March 13, 1920.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Mandamus by the State, on the relation of John E. Dolman, against C. B. Dickey and others, to compel the" issuance of certain tax bills for street paving. A temporary writ was granted, and defendants appeal. Reversed and remanded.

Stigall, Meyer & Hamm, of St. Joseph, for appellants.

John E. Dolman, of St. Joseph, for respondent.

WHITE, C.

This is a proceeding to compel by mandamus the issuance of tax bills to pay for the construction of pavement on a street in St. Joseph, a city of the first class. The relator is assignee of the Standard Construction Company, the contractor in the performance of the work. The circuit court of Buchanan county, after hearing the evidence, determined the issues in favor of relator, and granted a peremptory writ, and defendants appealed.

The petition for the alternative writ set out the ordinance providing for the concrete paving of Twelfth street, from Hickory street to Garfield avenue, and constructing concrete sidewalks therealong; the execution of the contract by the board of public works of St. Joseph, with the Standard Construction Company, a partnership; the full performance of the work under the contract, according to specifications; the assignment of the prospective tax bills and rights under the contract to relator; a demand upon the city engineer and board of public works to accept the work and issue the tax bills, and their refusal—and alleges:

"That said board and engineer, without just cause or reason, arbitrarily and by reason of ignorance and misapprehension of facts, and in an effort to construe the legal effect of said contract, and moved by caprice and prejudice, have refused and failed to perform said duty, and still refuse to perform the same, though repeated demands have been made for such performance."

The petitioner further alleged that he was remediless by ordinary proceeding at law, and prayed for the writ of mandamus commanding the board and engineer to issue the tax bills.

An alternative writ was issued in accordance with the prayer of the petition, and the defendants filed their answer and return to the same, admitting that they were officers of the city, as alleged, the passage of the ordinance, and the execution of the contract with the Standard Construction Company. The return alleged that the board of public works, by virtue of the charter of the city of St. Joseph, was vested with discretionary powers and duties in relation to the execution and performance of contracts for public improvements, and in the acceptance of and payment for work under such contracts; that pursuant to the provisions of section 8840, R. S. 1909, the contract under consideration contained the following stipulation:

"And the said party of the first part further agrees that he will not be entitled to receive payment for any portion of the aforesaid work or materials until the same shall have been fully completed in the manner set forth in this agreement, to the satisfaction and acceptance of the board of public works."

The return then alleged that the Standard Construction Company did not make the improvement provided for in the ordinance in accordance with the contract, plans, and specifications, nor within the time specified for doing the work; that the improvements contemplated were not completed to the satisfaction and acceptance of the board of public works, and the board of public works had not accepted or approved said work; that it had refused to provide for the issuance of tax bills—

"and that said refusal and said exercise of discretion was not capricious nor arbitrary, nor without just cause or reason, nor by reason of ignorance or misapprehension of facts, or the result of prejudice, oppression, or fraud, or aught else, except the result of the honest judgment of said board of public works, and the honest exercise of the discretion provided and enjoined by the charter of the city of St. Joseph; * * * that the refusal * * * was made upon full information of the refusal, failure, and neglect of the contractors to perform said work."

No reply to this return is set out in the record, and no note appears in the record of a reply having been filed, although the judgment recites that, on the hearing of the case, the return "and the traverse of said relator to said return" were submitted to the court for trial, together with the evidence. On the trial the contract was introduced, but the portions appearing in the record do not contain the paragraph set out in the return and above quoted. The only portions of the contract copied in the record which are important for our purpose provide for the character of paving to be laid, that paving material shall consist of a base and wearing surface, the base to be of concrete of a uniform thickness of four inches, and the wearing surface to be of uniform thickness of two inches, overlaying the base; the manner of laying the base to be by the setting up of guide stakes.

The contract was let September 22, 1914, and the pavement laid, so far as the contractor was concerned, by November 22, 1914, and within the time provided for the completion of the contract. The issuance of tax bills was delayed on the ground that the city engineer had not had time to measure up the street. In January, 1915, Mr. Campbell, the engineer, died, and Carl Hoff, assistant, succeeded him as city engineer. Mr. Hoff delayed the tax bills and there were some minor defects, including some cracks, which must be repaired before issuance of the tax bills. Hoff then, on January 14, 1915, made a written statement to the Standard Construction Company, specifying the defects which must be repaired, consisting of broken places in the curbing, broken parts of the street, some cracks, and other minor imperfections. These required repairs were made in March, 1915, as soon as the weather permitted the work to be done. About that time a rather peculiar crack at one point was reported to the engineer. The pavement at that point was torn out, and was found to be deficient in thickness. The engineer then caused test holes to be made, 84 in number, showing the thickness of the pavement and extending along the entire length of tie street. A blueprint was prepared, showing the result of these tests, and the average thickness of the pavement throughout the street. This blueprint was introduced in evidence, but does not appear in the record. After the tests were made, the contractor abandoned the work, and the bonding company, which furnished the bond for the contractor, undertook to meet the requirements of the city engineer, who made a written statement of what was necessary in the following words:

                            "St. Joseph, Mo., October 11, 1915
                

"Memorandum in the Matter of Repairs to South Twelfth Street, Between Hickory Street and Garfield Avenue.

"The work contemplated is removing certain sections of the recent pavement and renewing the same in accordance with the specifications of the original contract therefor.

"The extent of this work is approximately as follows: 13 50-foot sections of pavement 30 feet wide and such other repairs as the city engineer may direct. Further information may be secured from the city engineer.

                   "C PH/JJ         C. P. H., City Engineer."
                

It will be noticed that this was in October, almost a year after the contract should have been completed. Considerable testimony was offered regarding the understanding between the bonding company and the city engineer, not only as to the amount of work to be done, but as to the effect such work might have upon the issuance of tax bills. It appears that the 13 sections, 50 feet each in length, which, according to the memorandum were to be torn up and replaced, were not contiguous, but were at different places along the street. It may be noted here that, while the original work was in progress the city engineer at all times had an inspector overseeing the work, to see that it was up to specifications as it progressed. In conversations of Mr. String-fellow, agent of the bonding company, with the engineer and the board of public works, it seemed to develop that at least one of the inspectors was not careful and did not require the work to come up to specifications. It was claimed by appellant that an understanding was reached to the effect that the bonding company would complete the work as required by the engineer, the engineer would report to the board that the work contemplated was completed and the contract substantially complied with within the time required. It appears to be admitted by the city officers that the failure to complete the work within the time required by the contract was waived, provided the repairs should be made by the bonding company according to the require" meats of the city engineer. The bonding company accordingly went to work, took up, and relaid about 620 feet of the pavement. The sections were 50 feet each in length. The relaid portion, therefore, was 13 sections, less about 30 feet. It is not disputed that the work done by the bonding company, so far as it went, was in accordance with the specifications. The dispute as to the facts turned in the main upon two propositions: Whether that part of the pavement which was not taken up and replaced was in substantial compliance with the contract, and whether the work which the bonding company undertook to do met the requirements of the city engineer as stated in the memorandum set out above.

The evidence for the plaintiff was about as follows:

John J. Werst testified that he was inspector of "part of the work. He described the method of laying the pavement by setting 6-inch stakes on the subgrade, and the filling in of the concrete base to 4 inches, and the wearing surface...