Thrasher v. City of Kirksville

• Decision Date: 05 July 1918
• Docket Number: No. 19398.,19398.
• Citation: 204 S.W. 804
• Parties: THRASHER v. CITY OF KIRKSVILLE et al.
• Court: Missouri Supreme Court

204 S.W. 804

THRASHER v. CITY OF KIRKSVILLE et al.

No. 19398.

Supreme Court of Missouri, Division No. 1.

July 5, 1918.

Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

Bill by Charles Thrasher against the City of Kirksville and others. Judgment on the pleadings for plaintiff, and defendants appeal. Affirmed.

This is a bill in equity, asking that certain special tax bills issued against the property of the plaintiff be canceled and declared null and void, because they cast a cloud upon the title to his said property. The judgment was for the plaintiff, and the defendants duly appealed the cause to this court. The court below, on motion of plaintiff, rendered judgment on the pleadings in his favor. We are asked by the defendants to decide whether or not the petition states facts sufficient to constitute a cause of action. The facts pleaded and admitted to be true by the answer are as follows:

Kirksville, Mo., was and is a city of the third class under the general law governing that class of cities, and had a general sewer system. By its Ordinance No. 1264, passed March 22, 1910, said city created and established a sewer district, to be known as sewer district No. 61, which embraces, among others, plaintiff's property. Thereafter, and also on March 22, 1910, said city, by its Ordinance No. 1265, provided for the construction of a district sewer in said sewer district No. 61 according to plans and specifications made by the city engineer and referred to in and made a part of the ordinance, and which ordinance also contains this language:

"And the contract for doing said work shall be let to the lowest and best bidder as in such cases by statute made and provided, and the city clerk is hereby instructed to advertise for bids to be submitted to this council."

An estimate of cost was duly made and filed by the city engineer. The city clerk did not advertise for bids. The engineer's estimate was so low that contractors generally would not bid, but defendants Grassle Bros., a partnership composed of A. F. and F. J. Grassle, appellants; put in a bid, the only one received, which was accepted by the city council, arid the city council duly awarded the contract to Grassle Bros., and contracted with them to do the work, and they did the work is provided by the ordinance. Upon the completion of the work, the city council, by Ordinance No. 1360, found that it had been done according to contract and in accordance with the provisions of Ordinance 1265 and the plans and specifications and estimate aforesaid, and duly levied and assessed the cost thereof against the lands embrace in the sewer district and ordered the issuance of the special tax bills therefor, which were duly issued; the four bills sought to be canceled being part of such issue.

C. E. Murrell and A. Doneghy, both of Kirksville, for appellants. Weatherby & Frank, of Kirksville, for respondent.

WOODSON, J. (after stating the facts as above).

I. This appeal presents but a single legal proposition for determination by this court. Counsel for the defendants contend that the ordinance set forth in the petition was not authorized by the charter of Kirksville, and it was therefore null and void, and, being so, the case should be considered as though the contract had been let and sewer constructed as provided for by sections 9241, 9254, 9255, R. S. 1909, which constitute parts of the city's charter, as though said ordinance had never been enacted.

It is true said charter provisions do not require the city to advertise for bids for the construction of sewers, nor do they require that such work shall be let to the lowest and best bidders; and unquestionably, had the city let the contract and had the work done without advertising for bids, or proposed to let it to the lowest and best bidder, the contract and work done thereunder would have been legal, and the tax bills issued therefor would have been valid. But, upon the other hand, it must be borne in mind that the charter nowhere prohibits the city from advertising for bids, nor from letting such work to the lowest and best bidder. Without such legislative limitations, when the Legislature in express terms granted to the city the authority to construct sewers in the city, it evidently intended that...