Hilgert v. Barber Asphalt Paving Co.

81 S.W. 496, 107 Mo. App. 385

• Court: Missouri Court of Appeals
• Decided: May 30, 1904
• Status: Published

Opinion

SMITH, P. J.

It seems to be conceded that the contract for making the improvement was not valid and effective unless confirmed by an ordinance passed by the common council. And the first question raised by the appeal is whether or not the ordinance confirming the contract and purporting to have been -passed by the common council on March 18,1901, is valid. By section 5490, .Revised Statutes, the legislative functions of the cities of the second class were vested in a common counr cil composed of two aldermen from each ward. It is further conceded that the common council which passed said confirmatory ordinance would have been a legal body authorized by the statute — the charter of the said city — to exercise legislative functions and to confirm the said contract but for the repealing and amendatory act of March 13, 1901 (Sess. Acts 1901, p. 55), by which said section 5490 was repealed and said common council became functus officio. It is thus seen that five days before said confirmatory ordinance was passed by the common council it was abolished by said repealing and amendatory act and the legislative function of the city was thereby lodged in another body — a municipal assembly composed of two houses. Section 5490 of said repealing and amendatory act which was enacted in lieu of the section of that number contained in the statutes of 1899, already referred to, provided, that the members composing the two houses of the municipal assembly should be elected at the annual election on the first Tuesday after the first Monday in April in 1901 (Revised Statutes, section 5701), and meet in session on the third Monday after said election.

It is contended that from the date of the passage of the repealing and amendatory act, that is to say from the thirteenth of March until the third Monday in the April following, there was no legal officer or body in existence authorized to exercise the legislative function of the city. If this be so, then during the existence of this hiatus — this .vacuum — if a pestilence had broken out in the city, or if its water or light supply had been destroyed, or if it had been visited by a disastrous fire or flood, or other calamity, and action on the part of the legislative department had been required to relieve the situation, it could not have been had. That part of the business of the city requiring the exercise of the legislative function to carry it on wo,uld have been suspended. Public improvements which the common council had by ordinance previously ordered and the contracts for doing which had been entered into by the city engineer could not have been carried on for the reason that there was no common council, or other body, exercising the legislative function to confirm and validate such contracts. .The usual and ordinary business of the city could not have been carried on. But- it seems that the common council, notwithstanding the passage of said repealing and amendatory act, continued to exercise the legislative function until the April election, and that while so exercising such functions the ordinance confirming the contract in question was passed by it. The language of the emergency section of the repealing and amendatory act is to the effect “that there are cities of the second class desirous of effecting the changes herein contemplated at the election to he held in April, 1901,” therefore the act shall be in force and take effect from its passage. By this language it is expressly made to appear that the desire of the cities of the second class was to effect certain changes contemplated by said act at the April election, 1901. By the very language employed in the act it seems clear to me that it was the intention of the Legislature by the passage of the act not to disturb the status quo until after that election.

It can not reasonably be supposed that the Legislature by the passage of this act intended to tie up and paralyze the public business — to cripple, disable and render cities of the class to which it relates helpless for more than a month. The language of the act clearly negatives any such legislative intention, but if such intention were doubtful or uncertain, considerations of public policy would forbid a construction productive of such consequences. I can not doubt from the language employed in it that the lawmakers intended by its enactment to accomplish the change therein contemplated at the time stated in the emergency section, and at.no other time. It has been many times declared by the Supreme Court of this State that the effects and consequences of any proposed construction of a law may properly be considered as an aid in ascertaining the probable intention of the lawgiver as expressed in it. Kane v. Railway, 112 Mo. 34; Bowers v. Smith, 111 Mo. 45; Chouteau v. Railway, 122 Mo. 375; State ex rel. v. Slover, 126 Mo. 652. And it is another familiar rule that no statute is to be construed in such a manner as to be inconvenient or against reason. Fanny v. State, 6 Mo. 122. In view of the effect — the mischievous consequences — to which we have already adverted and which would result from the construction of said act contended for by plaintiff, that is, that it had the effect on the day of its passage to abolish and overthrow the common council, I think we are justified in rejecting that construction.

But if the members of the common council after the passage of said act were not de jure officers, they were de facto. They were, it seems to me, in office under such apparent circumstances of color as would lead men to suppose them to be legal officers entitled to exercise the legislative function of the city. There is nothing to show that they did not act in good faith in continuing to exercise the legislative function. There was no other officer or body then in existence authorized by law to exercise such functions. Even though their office had been abolished and there was no longer any such office to fill, yet as there was color of right for their action as such officers; and though their offices had been abolished the new legislative officers or body had not been elected, nor organized, so that their acts so far as they affected the rights of third persons and the public were valid as the acts of a de facto legislative body. The members of the commrin council were not mere intruders or usurpers. The offices which they pretended to fill were originally legal offices, so that they were valid in their birth. They continued after the passage of the repealing and amendatory act by common consent of the people and the government to exercise the legislative functions,, and it is difficult to see why they were not at least de facto officers. And whatever may have- been the ruling by the Supreme Court in Ex parte Snyder, 64 Mo. l. c. 62, State v. O’Brian, 68 Mo. 153; State v. Boone County, 50 Mo. 317, and the other cases cited by plaintiff, the more recent cases decided by that court (Adams v. Lindell, 72 Mo. 198 and Perkins v. Fielding, 119 Mo. 149), declare the rule as to the validation of the acts of de facto officers to be one of policy and may be applied not only where there is no de jure officer but where the legal office itself no longer exists. And this rule has been fully recognized by this court in Simpson v. McGonegal, 52 Mo. App. 540, and in Walker v. Ins. Co., 62 Mo. App. 209.

My conclusion is that the common council, notwithstanding the passage of the repealing and amendatory act of March 13,1901, was still in existence on March 18, next following, and that it was in the lawful exercise of its legislative functions when it passed the said confirmatory ordinance; but if this was not so, that then under the facts of the case disclosed by the record the rule of validation applies to said confirmatory ordinance. It results, therefore, that in either view which I have expressed, the taxbills can not be held void on the ground that the contract for doing the work was not confirmed by an ordinance of the common council.

II.

But it is suggested that- even if the confirmatory ordinance was valid, that the taxbills are still invalid for the reason that the improvement was not completed within the time required by the ordinance ordering it to be made. Adverting to the ordinance ordering the improvement, and I find that it required - Ashland avenue between certain designated points thereon, “to be paved to tbe full width of the roadway with an asphalt pavement, curbed and the sidewalk laid in accordance with the specifications therefor on file in the office of the city engineer. ’ ’ The specifications -on file in the city engineer’s office stated in detail the character of the material to be used in the improvements and the method of their construction, but those specifications are entirely silent as to the time within which the work is to be completed. A blank form of contract was also on file in the office of the city'engineer, and that general form with the blanks appropriately filled in was subr sequently used to express the terms of'the agreement between the city of St. Joseph and the paving company relative to the execution of this work. This contract states that the work shall be completed to the satisfaction of the city engineer within ninety days after the approval of the contract by the common council but it does not contain a stipulation making time of its essence. This contract and the form of contract which was on file in the office, of the city engineer is a complete and separate thing from the specifications. No reference is made in the original ordinance to the form of contract on file. The language of the specifications does not refer to the contract or make its terms a part of the specifications. Indeed, the contract refers to the specifications as ‘ ‘ attached hereto. ’ ’ And it must follow that the reference in the original ordinance to the specifications on file in the office of the city engineer does not refer to or-designate the form of a contract — a separate entity — on file in that office so as by that reference to make the terms of that form of contract a part of the ordinance. And hence I hold that the form of contract above referred to was no part of the original ordinance. From this it follows that the original ordinance neither directly nor indirectly fixed any time for the completion of the work therein authorized,

Time, then, was not bv the terms of this ordinance made of the essence of this transaction. And the contract does not specify that the time of completion is essential, or that it shall be of the essence of the agreement. It rather required that the contemplated street improvement should be of good quality and endure for a period of at least ten years after completion. The trial court found, and as was, I think, proper under the testimony, that,-the work embraced in the contract was done and of the materials and in the manner described in said contract, ordinance and specifications, and that the same was a good, durable and substantial street pavement, curb and sidewalk of the kind required by said contract, ordinance and specifications.

The defendant did not complete the improvement within the ninety days stated in the contract. The law is, that where a definite time for the completion of an improvement is specified in the ordinance ordering it, or, if no time be specified therein but is made of the essence of the contract by the stipulation of the parties, then, in either case, if the work be not completed within the time so specified, the taxbills will be void. Neill v. Gates, 152 Mo. 585; Childers v. Hohnes, 68 S. W. (Mo.) 1046; Barber Asphalt Co. v. Ridge, 169 Mo. 376; Rose v. Trestrail, 62 Mo. App. 352; McQuiddy v. Brannock, 70 Mo. App. 535; Wittemore v. Sells, 76 Mo. App. 248; Safe Deposit Co. v. James, 77, Mo. App. 616; City v. Davis, 80 Mo. App. 574; Ayres v. Schmohl, 86 Mo. App. 349; Winfrey v. Linger, 89 Mo. App. 159. As the ordinance ordering the improvement did not specify any time for the completion of the work, and as it was not made of the essence of the contract by the express stipulation of the parties thereto, it remains to be determined in what time the defendant was required to complete the improvement.

Carlin v. Cavender, 56 Mo. 286, was a suit on a special taxbill issued by the city engineer of the city of St. Louis to defray1 the cost of improving a street in front of the property of defendant. The ordinance authorizing the work fixed no time for its completion. There was a time fixed in the contract for the completion of the work but there was no stipulation making it of the essence of that contract. The work was not completed within the time limited by the contract, and this was one of the defenses- pleaded and relied on in the case by the defendant property-owner. The case went to the Supreme Court where it was said by Judge Wagner in the course of his opinion:

“There is obviously no merit in the point that the-work was not completed within the time limited by the contract. There is nothing to show that time was of the essence of the contract. For prudential reasons the engineer suspended the work for a time and the contractors assented to the suspension, but when it was deemed advisable to proceed, the work was then completed and received. It does not appear that the defendant suffered any'injury by the delay.” Strassheim v. Jerman, 56 Mo. 104, approved the ruling made in Carlin v. Cavender.

In Ayres v. Schmohl, 86 Mo. App. 349, it was said that the vital difference between that case and Carlin v. Cavender, ante, was that in the-latter the contract did not make the time prescribed of the essence of the contract, while in the former it did. It was also further said in the same case:

“Those cases (Carlin v. Cavender and Strassheim v. Jerman, 56 Mo. 104). held that where the ordinance did not fix the time and the contract did, that a failure to complete the work within the time stated in the contract did not necessarily avoid the bills,- there being nothing to show that it was of the essence of the contract or the delay was unreasonable.” The rulings of this court, as was said in Ayres v. Schmohl, have been that the time, in which public work should be done is a legislative function and that it can not be delegated to the city engineer; and which rulings are inharmony with that made by the Supreme Court in Neill v. Gates, supra. It inevitably follows from these considerations that the time for the completion of the work fixed by the engineer and inserted in the contract was at most but directory. Where there is no definite time fixed for the completion of the improvement in the ordinance ordering it, and where the contract entered into in pursuance thereof does not make time of the essence of the contract, it may now be regarded as the settled law of this jurisdiction that the proceeding should be construed to require the completion of the improvement within a reasonable time. Ayres v. Schmohl, 86 Mo. App. 349; Allen v. LaForce, 95 Mo. App. 324; Boulton v. Kalkmeyer, 71 S. W. 539; Heman v. Gilham, 71 S. W. 163; Hill v. Hutchison, 73 S. W. 318; Sparks v Villa Rosa, 74 S. W. 120. And the cases just cited hold that the question as to whether the contractor has completed the improvement within a reasonable time is one of fact to be determined by the attending circumstances. And this is the general rule. Lapsley v. Howard, 119 Mo. 489; State v. Harrison, 53 Mo. App. 346, If the defendant therefore completed the improvement in a reasonable time under the attending circumstances the tax-bills are valid: otherwise, not.

The city was under an implied duty to furnish the defendant a graded street on which to lay the asphaltum pavement ordered by the special ordinance (Ash v. Independence, 79 Mo. App. l. c. 74), and this duty it recognized and undertook to discharge by passing the ordinance of January 26, 1901, and letting a contract thereunder on March 18, 1901, providing for the grading of the street. The defendant immediately after the confirmation of the paving contract procured and had on hand and was ready and prepared with the necessary materials, tools and equipment to proceed with the execution of the contract, but was ordered by the city engineer not to proceed until the grading contractor had executed his contract, which like that ordering the paving of the street required the work to be completed within a reasonable time. The grading was carried on under the superintendence of the city engineer (General Ordinances of City of St. Joseph, section 6319). The street was in many places as much as five feet above the established grade. The grading contractor was unable to or at least did not complete the work until the latter part of July following the date of the passage of the ordinance ordering the same. The defendant was hindered from proceeding with the execution of its paving contract by the delay in the completion of the grading. It begun the performance of the work as soon as a part of the grading had been done and followed it up as it progressed so closely that within two days after the completion thereof it — the defendant — completed the laying down of the entire concrete base. The paving of the street when complete was accepted by the.city engineer. The defendant proceeded in the performance of the work required by the ordinance and contract with the utmost diligence. ' It is not pretended that the delay in the completion of the work resulted from any fault or negligence on its part. It is undoubtedly true that whatever of delay there was in the prosecution of the work was caused by the failure of the city tG have the street graded. Under these circumstances how could any court say that the contract was not completed within a reasonable time? The city engineer must have so regarded it, or else he would not have accepted the work as having been performed according to the requirements of the ordinance and the contract and issued the taxbills to defendant therefor.

Where the ordinance ordering improvements prescribes a definite time for completion of the work, failure of the city to furnish a graded street within that time will not prolong the life of the contract or excuse performance. Rose v. Trestrail, 62 Mo. App. l. c. 358, and the other cases cited in plaintiff’s brief. But where the improvement is required by the ordinance not to be completed in a definite time but in a reasonable time, then.the action of the city in faliing to grade or cause to be graded the street ordered to be paved and in consequence of wbic'b the completion of the paving is retarded necessarily becomes a circumstance, and often times a dominating circumstance, to be considered in determining the question of fact as to whether the work has been completed in a reasonable time. I have been unable to see how any conclusion can be reached in this case other than that the improvement was completed in a reasonable time, regard being had to the attending circumstances to which I have already alluded.

The facts shown in this case are not such as are calculated to impress my mind with the conviction that the plaintiff is justly entitled to the equitable relief which she seeks. The improvement was oue that her agent, the, city, was duly authorized by its charter to have made and it was completed by defendant according to the special ordinances and the contract and was accepted by the city. And for aught that appears she stood by and saw the defendant expend its material, labor and money in making the same, without protest or objection; but when it was completed, when she had received all the benefits which could result to her lots from so substantial an improvement, she then for the first time objected and invoked the interposition of a court of equity to relieve her property from being burdened with its proportion of the cost of such improvement. It does not appear that the delay in the completion of the improvement was unreasonable or that the plaintiff suffered any injury in consequence of it, and I think she has not shown herself entitled to equitable relief.

The questions which I have considered and ruled adversely to the plaintiff’s contentions in the foregoing opinion are decisive of the case and therefore it becomes unnecessary to notice the subordinate questions raised by the appeal.

It is my conclusion that the decree of the circuit court should be reversed.

All concur.