The Barber Asphalt Paving Co. v. Hezel

• Court: Missouri Supreme Court
• Writing for the Court: BRACE, J.
• Citation: The Barber Asphalt Paving Co. v. Hezel, 56 S.W. 449, 155 Mo. 391 (Mo. 1900)
• Decision Date: 27 March 1900
• Parties: THE BARBER ASPHALT PAVING CO., Appellant, v. HEZEL,

56 S.W. 449

155 Mo. 391

THE BARBER ASPHALT PAVING CO., Appellant, v. HEZEL,

Supreme Court of Missouri

March 27, 1900

Transferred from St. Louis Court of Appeals.

Reversed and remanded (with directions).

W. C Scarritt and Adiel Sherwood for appellant.

(1) The maintenance ordinance, sec. 564, Revised Ordinance, is a valid enactment, and so, also, is ordinance No. 17151, under which the work was done. Seaboard Bank v. Woesten, 147 Mo. 467; Morse v. Westport, 110 Mo. 509; St Louis v. Schoenbusch, 95 Mo. 622; State v. Inhab. of Trenton, 20 A. 1076; Elliott, Roads & Streets, 335; 1 Kent, Com. 464; Bishop, Stat. Crim. 127; Johnson's case, 1 Greenl. (Me.) 230; Suth. St. Const., sec. 341; Grover v. Huckins, 26 Mich. 476; Dullam v. Wilson, 53 Mich. 393; Railroad v. Railroad, 31 Kan. 660; Hannibal v. Winchell, 54 Mo. 172; Estes v. Owen, 90 Mo. 113; McCormick v. Patchin, 53 Mo. 33; Schenectady v. Trustees, 66 Hun. 179; Hannibal v. Railroad, 48 Mo. 480; Sturtevant v. Alton, 3 McLean, 393; Miller v. Milwaukee, 14 Wis. 642; Matthiessen v. Jersey City, 26 N.J.Eq. 247; State v. Morristown, 33 N. J. L. 57; Atty-Genl. v. Boston, 142 Mass. 200; Nagel v. Augusta, 5 Ga. 546; In re Burke, 62 N.Y. 229; In re Burmeister, 76 N.Y. 181; Morley v. Carpenter, 22 Mo.App. 640; Gurner v. Chicago, 40 Ills. 165; Howsmon v. Water Co., 119 Mo. 313; Gibson v. Owens, 115 Mo. 270; Scheuby v. Com., 36 Pa. St. 60; Farrar v. St. Louis, 80 Mo. 393; Schenectady v. Union College, 66 Hun. 179. (2) In fine, a maintenance clause is nothing more than a guaranty of good materials and workmanship. Kansas City v. Hanson, 58 Pa. 474; Robertson v. Omaha, 76 N.W. 442; Allen v. Davenport, 77 N.W. 532; Wilson v. Trenton, 40 A. 575; Cole v. People, 43 N.E. 607; Osborn v. Lyons, 104 Ia. 160; Rich v. Chicago, 152 Ill. 18. (3) The decision of this court in the Seaboard case was announced as its construction of an ordinance exactly the same in form as the ordinance here and of a contract like the contract here and the defenses made were exactly the same; in fact, counsel for respondents filed in support of the motion for rehearing in this case in the St. Louis Court of Appeals an affidavit which set up the fact that this case and the Seaboard case were founded upon similar ordinances and a sworn copy of each was attached thereto. The facts in this case are clearer and plainer than in Seaboard case and make a stronger case in favor of plaintiff. It is submitted "Interest reipublicae ut sit finis litium."

Hiram J. Grover and Denis Devoy for respondents.

(1) In view of the provisions of the Act of April 21, 1891, it is against public policy to allow any foreign corporation, which has not complied with the terms of that act, to make contracts, or to maintain in this court, or in any other court in Missouri, an action for the enforcement of any such contract, or for any other purpose whatsoever. Williams v. Scullin, 59 Mo.App. 30; Pierce Steam Heat. Co. v. Siegel Gas Fixture Co., 60 Mo.App. 148; Carson, Rand Co. v. Stern, 129 Mo. 381. (2) The judgment should be affirmed on the ground that ordinance No. 17151, and the contract, and the assessment, and the special tax bill are void, for the reason that they violate and are repugnant to the charter of the city of St. Louis. The charter does not use the word "maintenance." It always uses the word "repairs." Authority to contract for maintenance can be found, if at all, only under the provisions which authorize contracts for repairs. Maintenance for nine years, means repairs for nine years. Verdin v. St. Louis, 131 Mo. 87. (3) The doctrine that special taxation for local improvements on public streets must be based upon, and be limited by, the amount of the special benefits resulting to the abutting property, over and above the benefit which the public derives from the same improvements, always was correct in principle, and has now become part of the law of the land. Asberry v. Roanoke, 91 Va. 562; Detroit v. Chapin, 112 Mich. 588; Weed v. Boston, 42 L. R. A. 642; Violett's Heirs v. City Council, 23 S.E. 909; Hammett v. Philadelphia, 65 Pa. St. 146; State v. Newark, 37 N. J. L. 415; Norwood v. Baker, 172 U.S. 269; Hutcheson v. Storrie (Tex.), 51 S.W. 848; Fay v. Springfield, 94 F. 409; 2 Dillon Mun. Corps. (4 Ed.), p. 932, 936. (4) Legislative enactments, charters and ordinances which formulate schemes of street improvement and which make no provisions for (1) ascertaining the benefit to the public and laying upon the public a charge proportioned to public benefit; (2) ascertaining the special peculiar benefit which the abutter receives over and above the benefit which the general public receives, and limiting the charge against him to such special peculiar benefit are null and void. Legislative enactments, charters or ordinances can not pre-determine the fact in advance, by an unimpeachable fiat, that the abutter is and shall be at all future time specially benefited to the extent of the cost of the work, which may at any time in the future be done in front of his property. Enactments, charters and ordinances which (as in the case at bar) thus precludes investigation and adjudication upon the fundamental essential fact of benefit are void. Norwood v. Baker, 112 U.S. 269; Hutcheson v. Storrie, 51 S.W. 848; Detroit v. Chapin, 112 Mich. 588.

BRACE, J. Sherwood, Robinson, Marshall and Valliant, JJ., concur; Gantt, C. J., and Burgess, J., dissent.

OPINION

In Banc.

BRACE J.

-- This is an action to recover the amount of a special tax bill assessed by the proper authorities of the city of St. Louis against the property of defendants abutting on Jefferson avenue, in favor of the plaintiff, for work done in reconstructing and paving said avenue. Upon a trial in the circuit court judgment was rendered for the defendants, and the plaintiff appealed to this court. Upon a motion to dismiss the appeal for want of jurisdiction the case was transferred to the St. Louis Court of Appeals (138 Mo. 228, 39 S.W. 781), where the judgment of the circuit court was reversed, in pursuance of the opinion of a majority of that court (76 Mo.App. 135), delivered on the 21st of June, 1898, Biggs, J., sitting therein (148 Mo. 625, 50 S.W. 293) dissenting, and in his dissenting opinion, deeming the decision rendered therein contrary to the previous decision of this court in Verdin v. St. Louis, 131 Mo. 26, 33 S.W. 480. The case was certified here for final determination.

This is one of several suits pending on like tax bills. The litigation in regard to these tax bills was commenced in the St. Louis City Circuit Court, by the Verdin case, in July, 1893. That case was a proceeding in equity against the city of St. Louis, the board of public improvements, and the plaintiff in this case, to restrain the issuance and collection of these tax bills. The case went off in the circuit court upon a demurrer by the city to the bill, which was sustained by the circuit court, and the plaintiff appealed from the judgment on the demurrer, to this court, where the judgment of the circuit court was reversed, and the cause remanded to the circuit court, and upon the dismissal thereof in that court, suits were instituted upon the tax bills. The Verdin case was decided at the October term, 1895. The opinion of the majority of the court was delivered by Burgess, J., who in the third paragraph thereof said:

"3. It is contended that section 542 of the Revised Ordinances of the city is repugnant to the letter and spirit of the provision of the charter of the city of St. Louis, and therefore, null and void and of no effect, and that the action of the city in letting the contract for reconstruction and maintenance together is obnoxious and unlawful. Said section is as follows:

"'Sec 542. 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 improvement 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 and the amount of bond which the contractor will be required to furnish to secure the execution of the contract for maintenance, in addition to the bond which under existing regulations has to be furnished for all contracts for street improvements. The letting of the work, the awarding of the contract and the approval of the contract and of the bonds shall be carried out as now provided for other street improvements. In canvassing the proposals, the lowest bid shall be ascertained by taking the aggregate amount of the cost of the construction or reconstruction, as the case may be, and the total cost of maintenance, for the term of years designated by the ordinance. The special tax bills against the adjoining property for the work of construction or reconstruction shall be issued whenever the work has been completed and accepted. 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. The...