Wheeler v. City of Poplar Bluff

• Decision Date: 21 February 1899
• Citation: 49 S.W. 1088
• Parties: WHEELER v. CITY OF POPLAR BLUFF.
• Court: Missouri Supreme Court

49 S.W. 1088

WHEELER v. CITY OF POPLAR BLUFF.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — ORDINANCES — RESOLUTIONS — ESTOPPEL — REMEDY OF CONTRACTOR.

1. Rev. St. 1889, § 1495, authorizes cities of the third class by ordinance to open and improve streets. Section 1514 provides that the council shall have power to open or improve streets. Held, that a special ordinance providing for the improvement of a street is necessary to enable the council to enter into a contract therefor.

2. Rev. St. 1889, §§ 1495, 1498, 1501, authorize cities of the third class to open and improve streets, and provide that the council, by ordinance, may, when, in their judgment, the general revenue fund will not warrant an expenditure for the cost of establishing the grade of a street, include such cost in a special assessment for other improvements, and require the council to declare by resolution the necessity of such improvements; the resolution to be published, to enable property owners to protest. A council passed a resolution declaring it necessary to establish the grade of certain streets, and that, the revenue fund not warranting an expenditure, the cost would be paid by special assessment. It did not affirmatively appear that the resolution was passed with the formality of an ordinance. Held, that the resolution was insufficient to authorize the improvement.

3. Subsequent to such resolution, and before the work was contracted for, the council passed a general ordinance prescribing the manner and method of establishing the grade of the streets in the city generally, with no reference to a particular street. Held, that it did not authorize the improvement recited in the former resolution.

4. Where a contract by a city for a public improvement is invalid because no ordinance was previously passed as required by statute, the city is not estopped to assert its invalidity because the work has been done thereunder, and the city has received the benefits thereof.

5. A contract by a city for a public improvement stipulated that the city would levy a special assessment and issue special tax bills to pay for such improvement, and that the contractor would assume all risk of the city's failure to comply with the ordinances and laws, and would accept the tax bills in full payment. The work was performed, but the tax bills were invalid, because the city had passed no ordinance authorizing the improvement. Held, that no recovery could be had of the city.

Appeal from circuit court, Madison county; James D. Fox, Judge.

Action by George B. Wheeler against the city of Poplar Bluff. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. L. Edwards, for appellant. Henry N. Phillips, for respondent.

BURGESS, J.

This is an action by plaintiff, as assignee of one Z. T. Allbright, against the city of Poplar Bluff, a city of the third class, to recover the sum of $6,042.52, with interest, alleged to be due plaintiff, as such assignee, on a contract entered into between Allbright and defendant city for reducing to the established grade parts of Main and Vine streets, in said city. The answer admits the incorporation of defendant city, the passage and publication of the resolution of October 17, 1892, mentioned in the petition, and also the passage and approval of an ordinance on November 21, 1892, as entitled No. 188, which is also mentioned in plaintiff's petition, but denies that this ordinance gave Allbright or any other person any power, authority, or any direction to do any of the acts alleged to have been done by plaintiff or Allbright, or that said ordinance was in any way connected with or referred to, or that it gave to said resolution any force or validity; denies defendant's liability under the alleged contract, or in any manner whatever; alleges that Wheeler was fully paid for any and all work of any and all kinds that he or Allbright executed within said city under the alleged contract or otherwise; and denies all other allegations in the petition. The case was tried by the court, a jury being waived. No declarations of law were asked or given. There was judgment for defendant; hence this appeal.

On the 17th day of October, 1892, defendant city passed a resolution declaring it necessary that parts of Main and Vine streets, in the city, be reduced to the established grade, and, the general revenue fund of said city not being in a condition to warrant an expenditure for any such purposes, that the cost thereof be paid by special tax bills issued against all lots and pieces of ground on either side of such streets the distance improved or to be improved, in proportion to the front foot thereof. It was also further resolved that the resolution be published in the Advocate, a newspaper published in the city of Poplar Bluff, for two consecutive weeks. On November 21, 1892, defendant passed an ordinance (No. 188) by which the manner and method of reducing its streets to the established grade are prescribed. This seems to be a general ordinance, having reference to no particular street or streets. Thereafter defendant caused preliminary estimates of cost of reducing to the established grade parts of Main and Vine streets, as alleged in the petition, to be made and submitted to it, which it accepted and approved. It then caused its street commissioner to advertise for bids for grading parts of the streets for which compensation is claimed in this case; and, in pursuance thereof, Allbright became the purchaser of the contract, which was awarded to him, and perfected on the 9th day of March, 1893. On May 10, 1893, Allbright assigned his contract to the plaintiff. The grading was done according to contract, and the work accepted by defendant. Thereafter defendant, by resolution of its board, ordered that a special assessment be made for the cost of said work against the abutting property holders, and that special tax bills be issued against them, respectively, therefor, and to be delivered to Wheeler, which was done. The tax bills proved to be worthless, having been issued without authority, but Wheeler collected upon them $1,636; so that, if entitled to recover at all, it is the balance due under the contract, less amount collected.

Plaintiff insists that, by virtue of either section 1495 or section 1514 of defendant's charter (Rev. St. 1889), it had express power to enter into the contract sued on, and that such power is neither limited nor in any way modified by any other section of its charter, except section 1497, which provides that "before the council shall make any contract for building bridges, sidewalks," etc., "and grading any street," etc., "estimates of the cost thereof shall be made by the proper officer and submitted to the council, and no contract shall be entered into for any such work or improvements for a price exceeding such estimates." But we are unable to concur in this view. Section 1514, in our opinion, confers no additional powers upon cities, with respect to the improvement of streets, not conferred by section 1495. Being in pari materia, it cannot be held to dispense with the necessity of a special ordinance providing for the improvement as required by section 1495, nor with the estimate provided for in section 1497. I...