Barber Asphalt Paving Co. v. Ullman

38 S.W. 458, 137 Mo. 543, 1897 Mo. LEXIS 55

• Court: Supreme Court of Missouri
• Decided: February 9, 1897
• Status: Published

Opinions

Barclay, J.

The action is upon special tax bills issued in regular form for an improvement on Sixth street in the city of St. Joseph. The statement opening the report of this appeal gives a sufficient outline of the ordinance and contract. The defenses to the bills will be severally taken up.

1. The plaintiff offered in evidence the special tax bills sued upon, with proof of the signature of the city engineer who issued them. Such a tax bill is by statute invested with the force of “prima facie evidence of the validity of the bill, of the doing of the work,” etc., “and of the liability of the property to the charge stated in the bill.” R. S. 1879, sec. 4784.

It is too well settled to require argument that the courts must give full effect to such provisions of law in regard to the sufficiency of official certificates of this sort as evidence of a valid tax. St. Louis v. Hardy, (1864) 35 Mo. 261; St. Louis v. Armstrong (1866) 38 Mo. 29; Strassheim v. Jerman (1874) 56 Mo. 104.

The tax bill, duly authenticated and read in evidence, placed upon defendant the burden of proving any fact on which he might rely to show its invalidity.

2. Defendant insists that the contract for the work was not properly let, and hence is of no binding force.

The fact that the mayor did not personally pass upon the contract is said to be a fatal blemish on the proceedings. The course followed was in substance this:

A special ordinance directing the improvement was duly enacted by the common council, and then approved by the signature of the mayor, June 27, 1887. (Its terms have been mentioned in the statement of the ease.) The city engineer was thereby directed to advertise for ten days for bids, and all conflicting ordinances were repealed. He did advertise and no question is raised upon the terms of the advertisement. On receiving the bid of plaintiff, according to the call of the advertisement, a formal contract under seal was made, in due course, between the Asphalt company, as principal (and party of the first part) and the city of St. Joseph (by the city engineer) as the second party. That contract was also signed by several other parties as securities for its due performance by the party of the first part. The act of the engineer in executing the contract was, however, merely tentative, inasmuch as one term of the agreement declared that it was subject to the approval of the city council.

The securities and bond were approved by the city comptroller, who attested that approval by his signature. The city counselor did the same; and a like approval later by the common council is shown by the official certificate and attestation to that effect by the city clerk.

The contract as offered in evidence by defendant shows these facts.

The defendant’s contention is founded on the language of an ordinance in force when the general charter for cities of the second class was accepted by St. Joseph. That ordinance provided that, “All contracts shall be awarded by the mayor and city council to the lowest reliable and responsible bidder,” etc. By section 4816 '(R. S. 1879) of the general charter of St. Joseph, all ordinances, etc., “in force, and not inconsistent with” the new charter were left operative until altered, modified or repealed by the common council.

By the old special charter (art. 2, sec. 4) the mayor was the presiding officer of the council, but under the general charter governing the facts under review, one of the council is chosen to preside. R. S. 1879, sec. 4630, now part of section 1242 of 1889.

The old ordinance above quoted was intended to express the same idea contained in section 4815 (R. S. 1879; sec. 1436 of 1889) touching the letting of contracts to the lowest bidder.

The general charter (sec. 4673, R. S. 1879; sec. 1294 of 1889) makes it the duty of the comptroller “in conjunction with the city engineer, to open and inspect all bids of contractors for public works, and to approve and safely keep all bonds given by contractors for the faithful performance of public contracts.”

So far as ' the old ordinance may have contemplated personal action by the mayor upon contracts made for the city, it was subject to repeal by a later ordinance. Hence the contract in question here (if entered into in the mode prescribed by the ordinance for this particular work) is not subject to impeachment because of any want of conformity to the old ordinance. It is therefore not necessary to consider whether the new charter of itself lays down a line of procedure (in regard to letting of such contracts) at variance with the old ordinance. There is no room for doubt that the contract was duly entered into on the part of the ■city in a mode contemplated by the ordinance authorizing this work on Sixth street, as sanctioned by the subsequent action of the common council.

3. The tax bills are also challenged because, it is said, they include a charge for subsequent repairing of the street, under the name of “maintenance.” Defendant argues that that burden should properly be borne by the city of St. Joseph (by reason of the terms of its charter) and that it can not, by any device,.be imposed upon the adjacent property. There are some conflicting contentions as to the effect of certain provisions in the charter of that city in regard to its power to assess the cost of repairing highways as a special tax upon the adjoining realty. R. S. 1879, secs. 4781, 4788, same as secs. 1404, 1426 of R. S. 1889. The sections just cited plaintiff claims confer such a power. But then section 4786 (of 1879, same as section 1424 of the revision of 1889) opens with the statement that ‘ ‘the cost of repairing and keeping in repair the paving and macadamizing of all streets and avenues shall be paid out of the general revenue of the city.”

It will not be essential at this time to solve any difficulty of construction that may arise from the sections mentioned. For the present (and for ■ argument only) the proposition asserted by defendant will be assumed, namely: that the cost of repairs on the finished street is properly chargeable to the city, and not as a special tax lien upon the adjoining property.

We here touch the most interesting feature of the present appeal.

• Do the provisions of plaintiff’s contract with the city, in regard to the maintenance of the street, place on the adjoining property any charge for the repairs of the street after its completion?

• There are two branches to this inquiry, one of a technical, and the other of a substantial nature.

a. The defendant by his answer set up (among other defenses) the following:

“That in pursuance of its said contract to repair said pavement for and during a period of five years, plaintiff has at all times since the date of said contract kept said pavement in repair, and in repairing said pavement during said times has found it necessary to, and it did, take up and replace nearly all of said pave-

ment, and that the cost of so repairing, taking up and replacing said pavement, during the said time, and the cost of repairing, taking up and replacing'said pavement for the remainder of said five years, was and is and will be, many thousands of dollars,. and that plaintiff in making its said bid and contract, contemplated and took into consideration, and included in its said bid and contract, the estimated cost of making said repairs, taking up and re-placing said pavement for said time, and same is included in each of the tax bills herein sued upon.”

That part of the answer was stricken out by the court on motion of plaintiff. The bill of exceptions in the cause was allowed and filed as of the August term, 1893 (in fact, later than the August term, an extension of time having been obtained, under section 2168, at that term when the appeal was allowed). But the ruling, striking out the defense above quoted, took place at a term of court prior to the August term, 1893, and no exception to that ruling was preserved by any bill at that prior term; nor was the time to except to that ruling ever extended beyond the term when it was made.. The correctness of the ruling is, therefore, not properly before the supreme court for revision on this appeal.

An exception to a ruling striking out a pleading (or part thereof) must be taken by a bill filed at the term when such ruling becomes final, or within time given so as to connect the exception with that term. R. S. 1889, sec. 2168. It is not sufficient to bring such a matter of mere exception into the final bill, filed at a subsequent term, when no bill preserving the exception was obtained at the proper time during the course of the proceedings. Keen v. Schnedler (1887) 92 Mo. 516 (2 S. W. Rep. 312).

b. What then is the effect of the contract as to the subject of repairs? The ordinance merely provides for the paving of Sixth street with asphaltum and for the proper setting of curbing on that street, according to certain specifications in the engineer’s office. The ordinance makes no*mention of repairs.

It was held in the Verdin case, 131 Mo. 26 (33 S. W. Rep. 480) that, where the city is bound to repair, it can not, by forcing a bargain on the contractor for a cheap rate of repairing (as a condition for letting a contract for reconstruction of a street) impose on the adjacent property, as a special tax for reconstruction, an uncertain and unascertainable portion of the expense properly chargeable to the city for the repairs. In that case the petition for injunction made a showing which was considered to substantially charge such a scheme. A majority of the court in bane held that scheme unlawful under the charter of St. Louis.

But at bar we have a case in which the record makes a different showing. A defense asserting a similar state of facts to that alleged by plaintiffs in theVerdin case has been stricken out and is not now available to the defendant. The contract itself, however, is before the court. But it reveals quite another sort of arrangement from that condemned in the Verdin case. The price to be paid for maintenance or repairs, as itemized in the contract, refers very plainly to maintenance, during the second period of five years. That is evident from the stipulation touching the “manner of payment for maintenance” toward the close of the instrument, as well as from other passages quoted in the statement of the contract. The property adjacent is not charged for any part of the repairs during the first term of five years, and still less during the second term. The agreements of the plaintiff, the Asphalt company, in regard to maintaining the street in repair for five years, free of cost to the city, apply only to “the pavement constructed under these specifications.” If other repairs become necessary on account of the construction of sewers, laying of pipes, or other disturbances of the asphaltum street surface (under permits of the city) those repairs are to be paid for by the city (not by the adjacent property owners) at a price not to exceed the original cost per yard, according to the contract.

The validity of those provisions as to the city is a topic regarding which we shall more fully state our position in the next paragraph of this opinion. It is enough at the moment to say that the stipulations as to such repairs on account of the city (at prices to be paid in future) do not appear to impose on the property owners any charge for such repairs as part of the primary cost of the asphaltum street.

The “guarantee” of the . pavement for five years, as laid by the plaintiff, involves no extra charge against the adjoining property, further than would be justly payable for a lasting pavement. The term for keeping the agreed work in repair, free of cost, is not longer than the reasonable period such a work should last, if properly done at the outset. It certainly is proper for the city to require of the contractor for such improvements a sound and durable piece of finished work. The agreement to maintain the work free of cost for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.

The learned dissenting members of the court consider that the contract imposes upon the taxable property some part of the after repairs, payable properly by the city.. They have quoted some parts of the contract to support their views. The passages from which the quotations are taken appear at large in the statement accompanying this opinion, as well as considerable context which also should not be lost sight of.

The paramount issue is upon the construction of the contract, taken as a whole. Does it mean to provide that the paving company shall keep the entire street in repair for* five years, or does it mean to provide that the company shall simply maintain, in good order, for that period, the street as plaintiff agreed it should be made? We think the latter its true meaning. The city had the right to determine whether the thoroughfare should be improved with macadam, gravel, asphaltum, granite or other material. It had the right to put down a pavement good enough to last at least five years, and to charge its cost against the adjacent property. Now what difference is there, in principle, between a municipal agreement that merely calls for the construction of such a substantial street, and a municipal agreement which adds to such a call terms requiring the contractor to make good (during five years) his contract to furnish the sort of pavement he proposes to supply?

The proper laying of pavements of the sort here in view is a matter of skill which few but experts can fathom. An agreement to keep such a pavement good for five years (as contracted to be laid) seems to us a far more practical and efficient way of clinching the agreement for a sound article than any amount of stipulations to govern the mere construction of tbe street at the outset. Such a “guarantee” (as it is aptly termed in the contract) is a prudent and business-like mode of securing what the city has a right to demand in respect of the quality of work desired.- Such an agreement does not of itself necessarily imply any unlawful increase of the first cost of a well constructed street. Such a street is what the contract before us is designed to secure. The guaranty is entirely different in principle from an agreement to keep the whole street in repair for .a term of years, irrespective of the causes which might necessitate repairs. That distinction is plainly pointed out in the Boyd case (1896) 92 Wis. 456 (3 A. & E. Corp. Cas. N. S., 652, 66 N. W. Rep. 603) and in Brown v. Jenks (1893) 98 Calif. 10 (32 Pac. Rep. 701).

In Fehler v. Gosnell (1896) Ky. (35 S. W. Rep. 1125) the remarks in the Broion case on that distinction are approved.

In Schenectady v. Union College (1892) 66 Hun,” 179, an agreement similar to that here in question was sustained, as was another in Cole v. People (1896) 161 Ill. 16 (43 N. E. Rep. 607).

There is nothing in this contract, or elsewhere in the case, that makes it clear to us that any part of the cost of repairing the finished street has been put upon the taxable property by reason of the mode followed by the city in having this work done.

It is our duty to assume (in the absence of a showing to the contrary) that the municipal authorities have proceeded in accordance with law, and not in violation thereof. Action by city officials in regard to the imposition of special taxes for a street improvement comes within the protection of the general maxim that public officers are presumed to have rightly acted until the contrary is clearly made to appear.

It is a grave error to suppose that the law looks with any disfavor upon these special tax bills for street improvements. They are to be treated with the same fairness and justice that should be accorded all public acts of the civil authority, when taken in conformity to law. And a want of conformity to law is not to be presumed as to such governmental action any more than to other proceedings of public» functionaries. Farrar v. St. Louis (1883), 80 Mo. 393.

4. By the foregoing rulings, however, we intend no intimation of opinion as to the effect of the terms of the contract touching maintenance for the second period of five years. That is the period to which the item of cost for “maintenance per annum” (as given in the schedule of prices) obviously refers. Whether further municipal legislation will be essential as a basis for any draft on the municipal revenue on that account .is not a question of present concern. There is no charge of any kind in the present bill on that account, nor was it shown (or attempted to be shown), at the trial, that the agreement by the Asphalt Company to maintain the pavement at the city’s cost, for the second period of five years, had any bearing on the original cost of the improvement or that it added, in any way, to the expense properly authorized by the charter to be imposed as a special tax on the neighboring property.

The stipulations in regard to the original construction (and maintenance free of charge for the first term of five years) are readily severable from the agreements in regard to maintenance for the second term of five years. Neosho Water Co. v. Neosho (1896), 136 Mo. 498 (38 S. W. Rep. 89). The former stipulations may be valid and enforceable by the contractor, even if the latter are not, for want of proper preliminary municipal action to support them. As to the latter we give no opinion. The validity of those agreements we regard as irrelevant to the issues of this appeal. As the case at bar now stands, the latter agreements form no barrier to the collection of the special taxes in suit, imposed for the first cost of the asphaltum street. Neenan v. Smith (1875), 60 Mo. 292. Those agreements are a matter between the city and the contractor, and are not so connected with the stipulations for the work represented by the special tax bills as to impair the validity of the latter. Nothing properly before the court at present discloses that any of the agreements for maintenance of the improved street had a tendency to increase in anywise the special taxes levied on the abutting real property for the original work.

5. Nor is the ordinance deficient in omitting to properly mention the materials for the proposed work. "Paved with Trinidad sheet asphaltum, according to specifications on file in the office of the city engineer,” is a sufficiently definite description for the purposes of an ordinance, under the precedents in Missouri on that point. Sheehan v. Gleeson (1870) 46 Mo. 100; Moran v. Lindell (1873) 52 Mo. 229; Carlin v. Cavender (1874) 56 Mo. 286.

6. It is claimed by defendant that the whole job was not done in a good and substantial manner, as agreed. The finding of the jury indicates that the work was executed in substantial compliance with the contract. Furthermore, the defense that the contract was not performed by the contractor in a workman-like manner, could only be made (according to the express terms of the charter) by way of reduction in the amount of the bill, and then only upon condition of a tender of the sum justly due for the work as actually done. It is not pretended that any such tender was shown in the case at bar, and it is not asserted that there was a total failure to perform. R. S. 1879, sec. 4784. -

7. The penalty of 15 per cent per annum, by way of interest for delay, is expressly authorized by the charter, and there was no error in permitting a recovery therefor. R. S'. 1879, sec. 4784.

8. A minor point is raised upon the exclusion of a deposition of a witness, Mr. Campbell, on behalf of defendant. He resided in Buchanan county, and the trial was had in Platte county. But he was shown to be present in the court room when the deposition was tendered in evidence. No fact was disclosed which might have made his deposition admissible on exceptional grounds; for instance, for purposes of impeachment, or as an admission, or otherwise. There was no error in excluding the deposition in such circumstances Schmitz v. Railroad (1893) 119 Mo. 256 (24 S. W. Rep. 472); Benjamin v. R. R. (1896) 133 Mo. 274 (34 S. W. Rep. 590).

9. The specifications which were to be found in the engineer’s office, when the ordinance was passed, were plans and profiles of the work required on Sixth street, with blank forms which gave the particulars demanded by the engineer (in the doing of the class of work here in question) in the same terms as those which appear in the contract (finally made with the city by the plaintiff) under the head of “Specifications.” The latter contained elaborate directions for the work from beginning to end, and thus made the intent of the ordinance definite and clear. The specifications defined what was meant by the ordinance as to the subject of curbing, as well as concerning all other branches of the projected improvement. Curbing was, nevertheless, mentioned in a general way (as an item of the improvement) in the fifth section of the ordinance. The reference in the ordinance to the specifications in the office of the engineer was quite sufficient as a description of such work. It was not necessary for all the details of the working plan to be developed in the ordinance itself. Becker v. Washington (1888) 94 Mo. 375 (7 S. W. Rep. 291).

10. We find none of the objections to the circuit judgment tenable. The effect of the special tax bills as prima facie evidence has not been overcome.

The judgment should be affirmed.

It is so ordered,

Judges Gantt and Burgess dissenting. Chief Justice Brace and Judges Macearlane, Sherwood, and Robinson concur in the foregoing opinion.