Webb City v. Aylor

• Decision Date: 06 May 1912
• Citation: 147 S.W. 214
• Parties: WEBB CITY ex rel. FRANKS v. AYLOR.
• Court: Missouri Court of Appeals

147 S.W. 214

WEBB CITY ex rel. FRANKS v. AYLOR.

Springfield Court of Appeals. Missouri.

May 6, 1912.

1. MUNICIPAL CORPORATIONS (§ 315) — STREET IMPROVEMENTS—ESTIMATE—SUBMISSION BEFORE CONTRACT.

Rev. St. 1899, § 5858, as amended by Laws 1901, p. 63, providing that, before a city council of a city of the third class shall contract for paving a street, an estimate of the cost shall be made, and no contract shall be made for a price exceeding the estimate, does not require that the estimate be made and filed for the inspection or benefit of property owners, nor that notice be given to such owners of the filing of the same.

2. MUNICIPAL CORPORATIONS (§ 57)—POWERS —LIMITATIONS.

Cities can only exercise such powers as are granted them by their charters, which, in the case of a city organized under a general law, is the statute providing for its incorporation and specifying its powers.

3. MUNICIPAL CORPORATIONS (§ 289) — STREET PAVING—PROCEEDINGS.

Where a city charter provides the manner in which the council shall proceed in the paying of a street, the council cannot, by ordinance or otherwise, bind itself to do more than the statute requires; and if it proceeds as directed by the charter, it will be within its jurisdiction, though its proceedings may not comply with its own ordinances.

4. MUNICIPAL CORPORATIONS (§ 293) — STREET IMPROVEMENTS — PAVING — ENGINEER'S ESTIMATE—SUFFICIENCY.

A resolution of a city council declared the necessity of paving a street, and directed that the same should be done according to the plans, specifications, and estimates of the city engineer, on file in the office of the city clerk, and general ordinance No. 517. The plans and specifications were not on file in the city clerk's office, except as they were contained in such ordinance, which, in fact, contained complete specifications in detail, which were prepared by the city engineer or some other competent person and incorporated in the ordinance. Held that, under a charter provision making no requirement as to what the resolution declaring the improvement to be necessary shall contain, except that it declare the improvement necessary, it was not essential to the validity of the proceedings that plans and specifications on a separate paper should be signed by the engineer in the city clerk's office, but that it was sufficient that they were contained in the ordinance to which the property owner was referred.

5. MUNICIPAL CORPORATIONS (§ 487) — STREET IMPROVEMENTS—CHANGE OF GRADE.

That a material change in the grade of a street along one block was made after the contract for paving the street had been let, which, however, caused no injury to any one, though it added $250 to the cost of the improvement, did not invalidate tax bills for the paving where the increased cost was not assessed against the property owners.

6. MUNICIPAL CORPORATIONS (§ 443)—PUBLIC IMPROVEMENTS — DEFECTS IN PROCEEDINGS.

It is not the policy of the law, nor of the courts construing the statute relating to the making of public improvements in cities, to hedge these proceedings about with such technical restrictions as to defeat the purpose of the statute; and when there has been, in substance, a strict compliance with the statute, and no one has been misled or injured by technical variation from the letter of the law, and the contractor has performed his contract in good faith, the property owners will not be permitted to avoid liability; their substantial rights not having been impaired.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Webb City, on the relation of A. F. Franks, against J. W. Aylor. Judgment for defendant, and relator appeals. Reversed and remanded, with directions.

H. W. Currey and Geo. V. Farris, both of Webb City, and Clarence S. Palmer, for appellant. McReynolds & Halliburton, of Joplin, for respondent.

COX, J.

Action to enforce collection of certain tax bills issued to relator, Franks, in payment for paving certain streets in the city of Webb City, which is a city of the third class. The defendant resisted collection on the ground that the tax bills were void. Trial by court, judgment in defendant's favor, and plaintiff has appealed.

The objection urged against the validity of the tax bills is that the statute and the ordinances of the city were not complied with by the city council, and for that reason the council did not acquire jurisdiction to make the contract for the work. The proceedings of the council may be summarized as follows: The council passed resolutions, declaring it necessary to pave the streets in question. These resolutions were passed at different dates, and each applied to a certain specified portion of the street. These were all published, as required by the statute. No protests were filed. Estimates of the cost of each were then prepared and filed by the city engineer, bids were advertised for in the proper way, and the contract for the work awarded to the relator, Franks. The work was performed as the contract required, and the tax bills in suit were issued. The other essential facts necessary to be considered in this case are conceded, and are as follows: The first of the resolutions, above referred to, related to a portion of Allen street, and was passed July 18, 1904. This resolution, after declaring it to be necessary to pave Allen street with vitrified brick, proceeds to particularize the manner of doing it, as follows: "By subgrading and paving at grade the same with the best quality of vitrified brick to the full width thereof; and the same shall be done according to the plans, specifications and estimates of the city engineer on file in the office of city clerk and General Ordinance No. 517 of the city of Webb City. * * * The grade herein specified refers to the grade heretofore established for said street and the grading required to bring said street to said established grade is hereby declared necessary to be done. To pay for said improvement, a special assessment shall be made and special tax bills issued in accordance with Ordinance No. 516 * * * and the council hereby declares that the said street shall be graded in all respects as aforesaid * * * and the cost thereof shall be included in the special assessment for paying for said paving and the tax bills to be issued therefor, the general revenue fund of the city, in the opinion of the council, not being in a condition to warrant an expenditure therefrom for that purpose." The other resolutions which were passed at later dates, were in the same form, and applied to other streets.

The objection of most weight against the validity of these tax bills is that no estimate of the cost of the improvement was filed by the city engineer until after the time allowed to the property owners within which to protest had expired. It is conceded that such an estimate was made and filed before the contract was entered into; but it is insisted that the property owners were entitled to the benefit of this estimate of the cost to assist them in determining whether or not they would protest against the improvement being made, and that the making and filing of this estimate was for their benefit and therefore jurisdictional, and, since this information was not furnished them, the council could not legally proceed.

The statute in force at...