Cushing v. Hartwig , 138 Mo. App. 114 ( 1909 )

BROAHHUS, P. J.

— This action is to enforce a lien of five taxbills issued by the city of St. Joseph against the property of plaintiff for paving a certain street in said city. A jury was waived and trial had to the court, which found for plaintiff and defendant appealed.

The taxbills were issued to the Phoenix Brick & Construction Company, which had the contract for and performed the work. On the trial, plaintiff, after having proved the signature of the city engineer to the taxbills, introduced the bills and rested his case without offering any proof of assignment of the bills to himself. The defendant then introduced the contract and the ordinance providing for the work.

The ordinance authorizing the work required that it should be completed in ninety days after the contract “shall be awarded.” The contract was awarded June 10th and confirmed June 29,1904. The specifications of the contract and ordinance required that the macadam should consist of three layers of stone, the top layer of which was to be crushed Joplin flint spread to a depth of three inches at the gutters and four inches in the center and covered with bonding gravel of screenings. About September 9th, the contractor had spread the top layer of rock, and an assistant engineer had begun measuring up the work, and the employees of the contractor had removed the barricades at each end of the street so that it might be used for travel. The city engineer refused to accept the work on the ground that the size and quality of the rock used by the contractor in the top layer of the pavement were not such as required by the specifications.

A special meeting of the city council was called on the said 9th day of September, at which the time for the completion of the work was extended for four months by resolution. It is not questioned but that the work was completed within the time of the extension.

The defendant introduced evidence that went to show that the work was not completed according to the requirements of the ordinance and contract. But it was shown that the work was done under the supervision of the city inspector, and that it met the approval of the assistant city engineer, and further there was testimony that the work was substantially completed within the ninety days.

The meeting of the council, at which the resolution was passed to extend the time for completion of the work, was a special meeting which assembled on the call of the mayor made in the following manner: One copy of the notice of the meeting was posted on the door of the city hall, and one copy of the notice was presented to each member of the city council by the city clerk, and his presence requested at the meeting.

At the close of all the evidence, the defendant asked a declaration for a finding in his favor, which the court refused. The plaintiff: was not entitled to recover without proof of the assignment to him of the taxbills. The plaintiff urges strenuously that as the matter was not specially called to the attention of the court defendant ought not to be permitted at this late date to avail himself of such omission. But, as the proof of the assignment was essential to plaintiff’s right of recovery, we do not see how we can gloss over the matter without setting a precedent that would create much confusion and uncertainty and at the same time overturning a cardinal rule of practice requiring the plaintiff to make proof of all the material allegations of his petition that are put in issue by an ansAver.

The defendant challenges the legality of the resolution passed for an extension of the time for the completion of the contract on two grounds: First, because the meeting was not convened according to law. Second, because an extension of time could not be made by resolution, but, if made, it must be made by ordinance.

That part of section 2, Acts of 1903, p. 70, providing for special meetings of city councils, reads as follows: “The mayor may by proclamation convene the common council in special session, at which no business shall be transacted except such as may have been specially named in the proclamation of the mayor.” There is nothing in the act providing how the proclamation shall be published.

In our opinion previously rendered we held that the notice was not sufficient. Upon reconsideration we believe that we were in error in so holding. The Legislature having failed to provide how proclamation should be made, left the matter to the discretion of the mayor. Our holding that the proclamation should have been made through the medium of a newspaper, was in effect establishing an absolute rule for the guidance of the mayor, whereas the Legislature had provided otherwise, and that it was the exclusive duty of the mayor to determine what would be a sufficient publication; subject, however, to a review by the court as to whether the power had been exercised with proper discretion and that the publication made was reasonably sufficient for the purpose intended.

There being no statutory notice required, the only question left for consideration is, was the proclamation reasonably sufficient for the purpose intended. We have precedents in such cases. In Maryland, for instance, where it is said: “The act of 1882, Ch. 92, not having indicated the manner in which the clerk of the circuit court of Hartford county should make proclamation of the result of an election ordered by said act, a verbal proclamation by the clerk at the court house door that the local option law had carried and that the majority of the votes were against the sale of intoxicating liquors, was sufficient compliance with the law.” [Mackin v. State of Maryland, 62 Md. 244.]

In English law a proclamation is a notice publicly given of anything whereof the King thinks fit to advise his subjects. [Lapeyre v. United States, 84 U. S. 191.]

A proclamation is nothing more nor less than giving-public notice of anything done or to be done. And such notice is given in various ways — sometimes by publication in a newspaper; sometimes by written or printed handbills posted at public places; and sometimes orally. We believe that any of the usual modes of publication would answer the purpose of the law, and it is not for us to say which the mayor should have adopted, as that was a matter left to his discretion by the Legislature.

The council had the power under the statute to extend the time for the contractor to complete the work, by resolution as well as by ordinance. [Sec. 9, Laws of 1903, p. 64.]

The defendant asked, and the court gave the following declaration of law : “The court declares the law to be that even though there was a city inspector present during the laying of the work, and the assistant city engineer on about September 9, 1904, measured the work, and the barriers were taken away, and the public were permitted to travel over the street, still if the city engineer decided and notified the contractor that the work had not been done in accordance with the contract and specifications, because the material used for the top dressing was not as required by the contract and specifications, and that if the court believes the city engineer acted in good faith in deciding that the material was not as required by them, and the city engineer refused to accept the work and required the contractor to take off the top layer of stone or a large portion thereof, and replace the same, and that the same was a material part of the entire work, and that said work so required to be done by the city engineer was not completed until after ninety days from the 29th day of June, 1904, had elapsed, and that at said last mentioned day the contractor had not substantially completed the work called for in said contract and specifications in accordance with the decision of said engineer, then the finding must be for the defendant.”

It seems from the giving of said declaration of law that the court found that the work had been substantially completed in accordance with the contract and specifications. And as there was some evidence tending to show that fact, the finding of the court is conclusive upon defendant.

Reversed and remanded.

All concur.