Wheeler v. City of Poplar Bluff

• Decision Date: 28 March 1899
• Citation: 49 S.W. 1088,149 Mo. 36
• Parties: Wheeler, Appellant, v. City of Poplar Bluff
• Court: Missouri Supreme Court

49 S.W. 1088

149 Mo. 36

Wheeler, Appellant, v. City of Poplar Bluff

Supreme Court of Missouri, Second Division

March 28, 1899 ^[*]

Appeal from Madison Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Geo. L Edwards for appellant.

(1) The charter of defendant expressly authorized it to make such contract as sued upon, and the cost of the improvement contracted for defendant's charter provided should be paid from an assessment upon all the taxable property within the limits of the city. R. S. 1889, secs. 1495 and 1514; Poplar Bluff to use v. Hoag, 62 Mo.App. 672. (2) The resolution or ordinance adopted October 17, 1892, and in evidence, was sufficient to authorize the making by defendant of contract sued upon. R. S. 1889, sec. 1514; City to use v. Knott, 49 Mo.App. 612; Railroad v. Governor, 23 Mo. 353; St. Louis v. Foster, 52 Mo. 513; Cape Girardeau v. Riley, 52 Mo. 424; Becker v Washington, 94 Mo. 395; State ex rel. v. Mead, 71 Mo. 266; Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22; Hamilton v. Rutherford, 97 Mo. 543; Water Co. v. Aurora, 129 Mo. 578; 1 Dillon on Mun Corps. (4 Ed.), sec. 310; Asphalt Paving Co. v. Ullman, 137 Mo. 568. (3) This being an executed contract on the part of the contractor within the corporate powers of defendant, and from which it, and its citizens whom it represents, have received large benefits, it is estopped to deny its validity because of irregularity in its execution, if any such there be, or because in its execution the mode pointed out by its charter was not observed. Page v. Board of Education, 59 Mo. 264; Herman on Estop., sec. 1222; Rose v. Baltimore, 51 Md. 256; Chicago v. Wheeler, 25 Ill. 478; Higgins v. Chicago, 18 Ill. 276; Maher v. Chicago, 38 Ill. 266; Martel v. East St. Louis, 94 Ill. 67; Logan Co. v. Lincoln, 81 Ill. 156; Leavenworth v. Laing, 6 Kan. 274; Sleeper v. Bullen, 6 Kan. 300; Bill v. Denver, 29 F. 334; Illinois Trust & Savings Bank v. Arkansas City, 74 F. 293; Warner v. New Orleans, 87 F. 827; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 522; Mound City v. Snoddy, 35 P. 1112; Tappan v. Commission Co., 59 N. J. L. 371; Bigelow on Estoppel [5 Ed.], pp. 466 to 470; Nat. Tube Works Co. v. City of Chamberlain, 5 Dak. 54. (4) If this contract had been voidable for irregularities it has been made legal and valid by ratification. "A municipal corporation may ratify the unauthorized act and contracts of its officers or agents which are within the scope of the corporate powers. Ratification may frequently be inferred from acquiescence after knowledge of all the material facts or from acts inconsistent with any other supposition." 1 Dillon on Mun. Corps. (4 Ed.), secs. 463, 464, 465; Water Co. v. Aurora, 129 Mo. 583; Leavenworth v. Mills, 6 Kan. 297; Maher v. Chicago, 38 Ill. 266. (5) Plaintiff is entitled to recover upon the contract sued upon, and the measure of his damages is the contract price with interest. Fisher v. St. Louis, 44 Mo. 482; Oster v. Jefferson City, 57 Mo.App. 485; Hitchcock v. Galveston, 96 U.S. 341; Memphis v. Brown, 20 Wall. 289; 1 Dillon on Mun. Corps. (4 Ed.), secs. 480 to 484 and 457; Michael v. Police Jury, 3 La. Ann. 123; Ib., 9 La. Ann. 67; Tounier v. Municipality, 5 La. Ann. 298; Newcomb v. Police Jury, 4 Rob. (La.) 233; Maher v. Chicago, 38 Ill. 266; Chicago v. People, 48 Ill. 416; Chicago v. People, 56 Ill. 327; Leavenworth v. Mills, 6 Kan. 288; Sleeper v. Bullen, 6 Kan. 300.

Henry N. Phillips for respondent.

(1) The defendant never did, nor did its charter authorize it to, enter into the alleged contract sued upon in this cause. Secs. 1495, 1496, 1498 and 1501. Section 1514 has no application or bearing in this case whatever. (2) The resolution or ordinance adopted by the city council on October 17, 1892, and offered in evidence, was insufficient to authorize the doing of anything whatever, as it was not passed under the formalities required by law; that is to say, it was never read the first, second and third times, and a vote taken upon its final passage by the ayes and noes, and approved by the mayor. City to use v. Knott, 49 Mo.App. 612; Poplar Bluff v. Hoag, 62 Mo.App. 672; Keating v. Kansas City, 84 Mo. 419; Moore v. Cape Girardeau, 103 Mo. 475; Cape Girardeau v. Fougeu, 30 Mo.App. 551. (3) The burden is on the plaintiff in this case to show the formal adoption of the resolution to make it an ordinance to perform the same office, and as they offer the record, and the record does not show it, and it does not so appear upon the face of it, it is but a resolution, and entirely fails as an authority upon which to base this or any action. Poplar Bluff v. Hoag, 62 Mo.App. 676. (4) Plaintiff's third point, that this is an executed contract, and the citizens of the defendant have received large benefits therefrom, and the city is estopped, is an assumption without foundation in fact or in law. Heidelberg v. St. Francois Co., 100 Mo. 69; Snyder v. Railroad, 112 Mo. 539. (5) The contract is absolutely void, and can not be ratified by the corporation, and the corporation is not liable in any amount in the premises. There is no evidence of ratification in this case. State v. Bank, 45 Mo. 544; Heidelberg v. St. Francois Co., 100 Mo. 69; Snyder v. Railroad, 112 Mo. 539; Sturgeon v. Hampton, 88 Mo. 213; Bank v. Gray, 63 Mo. 39; Thrush v. Cameron, 21 Mo.App. 398; Rowland v. Gallatin, 75 Mo. 134; Stewart v. Clinton, 79 Mo. 603. (6) Not only the charter of the city, but the inhibition of article X, section 12 of the Constitution of the State, the fundamental law of the State, was written across and incorporated in said contract, as well as the fact that no ordinances had been passed to authorize the making of such a contract; and section 9 of ordinance number 188 was especially written across said contract. He took it subject to the charter of the city, the Constitution of the State, and the fact that no ordinance had been passed authorizing such contract. He was required to know the authority of the party or agent with whom he dealt. Saline Co. v. Wilson, 61 Mo. 207; Railroad v. Horton, 102 Mo. 56; Brown Estate v. Wayne Co., 123 Mo. 464; Perkins v. St. Louis, 4 Mo.App. 322; Maupin v. Franklin Co., 67 Mo. 527; Cheney v. Brookfield, 60 Mo. 53; Wolcott v. Lawrence Co., 26 Mo. 275; Steines v. Franklin Co., 48 Mo. 167; Sturgeon v. Hampton, 88 Mo. 213; Nevada v. Eddy, 123 Mo. 557; Keating v. Kansas City, 84 Mo. 418.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

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, numbered 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 said resolution, or that it gave to it 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 seventeenth 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 feet 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, number 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 ninth 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...