The City of Lexington v. Commercial Bank

• Decision Date: 17 February 1908
• Citation: 108 S.W. 1095,130 Mo.App. 687
• Parties: THE CITY OF LEXINGTON, at the relation, etc., of GEORGE T. MENEFEE, Respondent, v. COMMERCIAL BANK, Appellant
• Court: Kansas Court of Appeals

108 S.W. 1095

130 Mo.App. 687

THE CITY OF LEXINGTON, at the relation, etc., of GEORGE T. MENEFEE, Respondent, v. COMMERCIAL BANK, Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1908

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

Wm. H Chiles and Clarence Vivion for appellant.

(1) The charter of a city is in the nature of a power of attorney and the authority conferred must be carried out in the manner prescribed and when a special method is prescribed for the exercise of a power, this brings the exercise of a power within the provisions of the maxim expressio unius, etc., and renders nugatory the doing of the thing specified except in the way pointed out. Unionville v. Martin, 95 Mo.App. 36; Nolkmeyer v. City of Jefferson, 75 Mo.App. 683; Dickey v. Holmes, 109 Mo.App. 721; Guinotte v. Egelhoff, 64 Mo.App. 366; Rose v Trestrail, 62 Mo.App. 358; Heidelberg v. St. Francis Co., 100 Mo. 69; Capen v. Carrison, 193 Mo 348; Utley v. Hill, 155 Mo. 272-3; Ex parte Joffee, 46 Mo.App. 365. (2) The materials used in a public improvement are of the greatest importance, and the selection of such, as far as the city is concerned, is a legislative act and can not be delegated to the city engineer or any other officer. Kansas City v. Askew, 105 Mo.App. 84, point 2; Kansas City v. Barton, 110 Mo.App. 40; McQuiddy v. Brannack, 70 Mo.App. 547; St. Joseph v. Wiltshire, 47 Mo.App. 125; Brick Co. v. Hamilton, 51 Mo.App. 120; Galbreath v. Newton, 30 Mo.App. 380.

William Aull for respondent.

(1) If the application of the maxim expressio unius to the statute leads to the conclusion contended for by appellant it overrides the plainly indicated purpose of the Legislature and can not be so applied. McFarland v. Co., 94 Mo.App. 342; Lack v. Brecht, 166 Mo. 261. Sedgwick, Cont. Sta. & Const. Law (2 Ed.), p. 31, note; Brown v. Buzan, 24 Ind. 194; Wallace v. Holmes, 9 Blatch. (C. C.) 65; Sutherland's Stat. Constr., p. 415, sec. 329; Dougherty v. Foley, 32 Cal. 403; Endlich, Interp. Stat., sec. 295; Verdin v. St. Louis, 131 Mo. 160; Co. v. Hunt, 100 Mo. 22; State ex rel. v. Mead, 71 Mo. 267; Bank v. Haywood, 62 Mo.App. 550; City of Sedalia v. Smith, 104 S.W. 21; Hund v. Rackliffe, 192 Mo. 328; Sutherland on Stat. Constr., sec. 300; Company v. Warner, 93 Mo. 374; Potter's Dwarris Stat. & Constr., p. 48; Clapton v. Taylor, 49 Mo.App. 123; People v. Gleason, 121 N.Y. 631; Johnson v. Duer, 115 Mo. 376; Jackson v. Smith, 22 N.E. 432. (3) The estimate intended to guide and enlighten the council in contracting did separate all items and submit an estimate on each but the contract was not required to separate the same. Gibson v. Owens, 115 Mo. 264; Warren v. Co., 115 Mo. 579; Boonville v. Stephens, 95 S.W. 316; Murphy v. Peoria, 119 Ill. 512; In the Matter of Ingraham, 64 N.Y. 314; Enos v. City, 113 Ill. 72; Albeyer v. Mayor, 64 Ind. 8; Poplar Bluff v. Hoag, 62 Mo.App. 675; Independence v. Briggs, 58 Mo.App. 241; Wheeler v. City, 149 Mo. 43. (4) Respondent was only required to comply substantially with the contract and was not required strictly and literally to comply therewith. Hund v. Rackliffe, 192 Mo. 330; Jaicks v. Merrell, 98 S.W. 758, 760; Woodson v. Owen, 115 Mo. 580; Warren v. Co., 115 Mo. 259; Cole v. Skrainka, 105 Mo. 309; Dunn v. McNealey, 75 Mo.App. 22; Heman v. Larkin, 108 Mo.App. 395; Roth v. Forsee, 107 Mo.App. 473; Steffen v. Fox, 124 Mo. 635; City v. Landis, 54 Mo.App. 315; Akers v. Co., 97 Mo.App. 528; Galbraith v. Newton, 30 Mo.App. 393; Heman v. Gerardi, 96 Mo.App. 231; Bank v. Payne, 31 Mo.App. 521; Eyerman v. Constantine, 61 Mo. 489; Meyer v. Wright, 19 Mo.App. 283.

OPINION

JOHNSON, J.

--Action on a special taxbill issued by the city of Lexington (a city of the third class), pursuant to an assessment levied to pay the cost of paving one of the public streets. A trial was had before a jury, verdict and judgment were for plaintiff for the full amount demanded, and the cause is here on appeal of defendant. The improvement, on account of which the taxbill was issued, was made under the provisions of an act of the Legislature passed in 1901, which repealed sections 5858, 5859, 5860, Revised Statutes 1899, and enacted new sections in lieu thereof (Laws 1901, p. 63 et seq). The resolution declaring the work necessary was passed by the council September 14, 1903, and in part is as follows:

"That it is necessary to pave the roadway of Main street from the east line of Eighth street to the east line of Thirteenth street, the full width thereof exclusive of all sidewalks. The pavement shall consist of a concrete base six (6) inches in thickness upon which shall be laid a course of sand two (2) inches in thickness and on this shall be placed a wearing surface of vitrified brick of the best quality and of the usual dimensions laid on edge. And that it is necessary to grade that portion of Main street to be paved so as to bring the same to the established grade thereof, and that in the judgment of the city council the general revenue fund of the city of Lexington is not in a condition to warrant an expenditure therefrom for bringing that portion of said street to be paved as aforesaid to the established grade. All of said work to be paid for by special assessments against the property liable to be charged therefor as provided by law, and the Council deems and declares such work necessary to be done."

The resolution was duly published, no protest against the improvement signed by a majority of the resident owners of abutting property was filed, an advertisement for bids was made and, at the time specified (December 14, 1903), the contract was awarded to the Fort Scott Stone & Construction Company as the lowest and best bidder, but on account of the failure of this company to execute and deliver to the city the required bond, no contract was made and, on January 19, 1904, the council directed the clerk to readvertise for bids. This was done and the contract was let to relator who was an unsuccessful bidder under the first call for bids. The readvertisement was made without the adoption of a new resolution declaring the improvement necessary and the first attack made by defendant against the validity of the taxbill is based on the contention that the failure of the bidder to whom the contract first was let to give the required bond divested the council of jurisdiction to proceed under the resolution and that proceedings for the improvement could not be initiated legally except by the adoption of a new resolution. In support of this position, we are cited to section 5859 of the statutes (Laws 1901, p. 65) which provides: "Where bids for said work are above the estimates or no bids are presented, the council may readvertise for bids." As this is the only statutory provision relating to the subject of readvertising for bids and as it is conceded that the bids submitted under the first call were within the estimates, the principle is invoked that "the charter of a city is in the nature of a power of attorney and the authority conferred must be carried out in the manner prescribed and when a special method is prescribed for the exercise of a power, this brings the exercise of the power within the provisions of the maxim ' expressio unius,' etc., and renders nugatory the doing of the thing specified except in the way pointed out." [City of Unionville v. Martin, 95 Mo.App. 28, 68 S.W. 605; Kolkmeyer v. City of Jefferson, 75 Mo.App. l. c. 683; Dickey v. Holmes, 109 Mo.App. 721, 83 S.W. 982; Guinotte v. Egelhoff, 64 Mo.App. 356 at 366; Rose v. Trestrail, 62 Mo.App. 352.] The maxim that the expression of one thing is the exclusion of others not expressed is not to be accepted as a hard and fast canon of statutory construction, but as a guide to point to the legislative intent which, when ascertained, should dominate the construction to be placed on the enactment. [McFarland v. Railway, 94 Mo.App. 336.] It has been said, if there is some special reason for mentioning one and none for mentioning the other, the absence of any mention of the latter will not operate as an exclusion, and that the maxim does not apply to a statute in which mention is made by way of example or made in affirmance of existing law or to remove doubts, or when the context shows a different intention. To ascertain the intention of a statute, it should be read in view of all the surrounding facts and circumstances under which it was enacted and, it may be added "common sense and good faith are the leading and principal characteristics of all interpretation." [Bank v. Haywood, 62 Mo.App. 550; Potter's Dwarris on Statutes and Constitutions, p. 48; Sedalia v. Smith, 104 S.W. 15, 206 Mo. 346.]

With these principles in mind, we do not hesitate to say the maxim should not be applied to the provision in question. We think it was the legislative intent to remove all doubt of the power of the city to readvertise even in extreme situations, either where no bids were received or where all of the bids were above the estimate, and not to express the purpose of declaring the jurisdiction of the council to proceed under the resolution exhausted in the contingency of a failure of the successful bidder to comply with the conditions precedent to the execution of the contract. In Gibson v. Owens, 115 Mo. 258, 21 S.W 1107, the bidder to whom the contract was awarded failed to enter into a contract and make the guaranty required, whereupon the engineer, without readvertising, gave the contract to the next lowest bidder. The Supreme Court said: "We do not think the power of the engineer exhausted when he made the selection among the bidders of the one regarded the lowest. The...