Roth v. Forsee

BROAD "DUS J. This suit is to enforce the collection of a certain taxbiir for street improvements in the city of St. Joseph. The defense was, first, that the petition for the work was insufficient; second, that the proceedings of the council in the enactment of the ordinance providing for the work were illegal and void; third, that the engineer failed to advertise for bids, as required by the ordinance; fourth, that the work was not performed within the time required by the contract. Section 5683, Revised Statutes, among other things provides: “When a petition has been signed the same may be published for five days in some newspaper printed in the city, and thereafter the common council shall hear and decide on all objections thereto, if any. If the common council shall, in the ordinance, .cause to be done the work petitioned for, find and declare that the work has been petitioned for, and the petition published according to law, such finding and declaration shall be conclusive for all purposes; and no special tax-bills shall be invalid or be affected by any defect in or objection to the petition.” The common council of the city by its ordinance duly passed, found and declared that the property-holders owning a majority in front feet of the property fronting on the street proposed to [474] be improved had petitioned the council to have the improvements made and that the petition had been duly-published according to law. The defendant Introduced evidence tending to show that the recitation of the petition that a majority of the resident property-owners fronting on the street improved' did not sign the petition and that the same was not published according to law. She contends that said section 5683 making the recitations in the ordinance that the work had been petitioned for and the petition had been published according to law, stood repealed by section 5661 of said statutes. But that section does not in our opinion repeal the former. It seems to be in the nature of an enabling act. The two are not in conflict. They were enacted to meet different conditions. The object of the first is to provide for street improvements upon the petition of property-owners; the other to provide for street improvements in certain cases without such petition. The ordinance of the city in reference to engineer’s notice to contractors is as follows: ‘ ‘ That the city engineer is hereby ordered to advertise for five days for proposals for doing the work ordered in this ordinance.” The publication of.said engineer’s notice in the official paper of the council was had on the following days: Saturday, October 21, 1899; Sunday, October 22; Tuesday, the twenty-fourth; Wednesday, the twenty-fifth ; and Thursday, the twenty-sixth. Omitting one day, Monday. It is claimed that this was not a compliance with the ordinance. Literally, it was. The ordinance does not require that the publication shall be consecutive. In that respect it is somewhat indefinite.' We do not feel at liberty to declare the proceedings void for the reason urged, as there was at least a substantial compliance with the ordinance. Lastly, defendant contends that the work was not completed within the time required by the contract. But the court found that it had been and there was evi [475] dence to support the finding;' and the action of the court as to such finding is conclusive upon this court. Cause affirmed. All concur.