Probert v. Garth

ELLISON, J. This action is based on special tax-bills for street paying- in the city of St. Joseph. The judgment in the trial court was for the defendant. [388] It appears that on the l'6th of July, 1906, an ordinance was passed authorizing the improvement, and on the 7th of August, thereafter, the contract for the work was let at a stated price per square yard. There was a single' track of street railway on the street and there was a city ordinance requiring the street railway company to pave the portion of the street occupied by its tracks. On September 26th, and before the work was begun, the city authorized the street railway to put in an additional track, thereby making a double track railway. This was completed before the paving work was commenced, and it made 652 square yards less paving for the contractor, which, at the price bid by him, made a difference of more than $900, less than what it would have cost had the street railway not been constructed. That sum was not included in the taxbills issued against abutting property. It will thus be seen that the amount of work which was let at public bidding and which the contractor agreed to perform, was not done. But we do not think, considering the reason for the discrepancy, that the taxbills were thereby invalidated. The ordinance for the paving was regularly passed and the contract therefor regularly let by bids on the amount of work to be done as the street then existed with its single railway track. But afterwards a part of the paving was withdrawn from the contractor, and the expense thereof from the property holdér, by a subsequent act of the city, the contractor having no part in it, which required that part to be paved by the railway company. It was not shown, nor is it pretended, that this part was harder or more expensive to perform than the remainder; and it therefore does not appear that the contractor was relieved of a burden which existed at the letting of the contract or which the bidders considered in making their bids. No fraud was charged and the nature of the matter, from beginning to end, was not such as to [389] place it in that category of things forbidden on the ground of liability to fraud, favoritism or corruption. We are cited to Excelsior Springs v. Ettenson, 120 Mo. App. 215, as being directly in point against the validity of the bills. We do not think the case .applicable. The essentials making the taxbills void in that case do not appear in this. In that case the dimension of the paving was not given' in the ordinance, nor in the advertisement, nor in the letting of the contract. At the time the ordinance was passed and the advertisement for bids was made, the width of sidewalks had not been established, and therefore the ordinance prescribed that the street should be “paved the full width thereof exclusive of sidewalks.” We held that the dimension of the work was not named, or ascertained, as was required by the charter of the city, and the bills were void. In this case the ordinance, advertisement and letting were all proper. The fact that the dimension, or area of the work performed by the contractor, was less than that called for in the ordinance and his contract, was caused by matters afterwards transpiring, with which he had nothing to do, whereby a part of the work was thrown upon another party. The whole work was done as contemplated by the ordinance and contract, but a part of it was performed by and at the expense of another party. It benefited the property holder but not the contractor. The objection is made that the plans required to be filed (Laws 1902, p. 62) were not sufficient, in that they did not show the work contemplated by the ordinance and advertisement. What we have already said practically disposes of that objection. But we may repeat here that the ordinance providing for the paving recites that the space occupied by railway tracks is excepted from the area to be paved. Such area was to be paved by the railway company. Considering the plans filed with the board of public works and transmitted to the [390] council, apart from the question of the railway tracks, they were substantially sufficient. This leaves only the objection that no proper estimate of the work was made by the city engineer prior to passing the ordinance. The criticism relates to the cost and area. The estimate names 12634 yards of paving as the area, and the cost, including curbing, $15,587. The actual area of work was reduced by the space occupied by the additional railway track, and yet the total cost was shown to be more than the estimate, in the sum of $252. This goes to show that the estimate was a poor one, but we do not see how it can affect the validity of the taxbills. There are cases holding bills to be void if the work was let at a price in excess of the estimate, but those were where the work was done in cities whose charters forbid contracts in a sum beyond the estimate. [Hill v. Swingley, 159 Mo. 45, 49; Independence v. Briggs, 58 Mo. App. 241.] No such restriction appears in the charter of cities -of the second class, to which St. Joseph belongs. Our conclusion is that the judgment should be reversed and the cause remanded with directions to enter judgment for the plaintiff, except as to lot 16, admitted to be improperly included in the petition. The other judges concur.