Mullins v. Everett , 172 Mo. App. 186 ( 1913 )

ELLISON, P. J.

Plaintiff’s action is based on tax bills for the building of a district sewer in Kansas City, Missouri. The trial was by the court without the aid of a jury and judgment was rendered for defendant.

The charter of the city (Sec. 10, Art. 9, Charter 1898) provides that the city may, with the approval of the board of public works, construct district sewers, which “shall be of such dimensions, material and character as shall be prescribed by ordinance.” On the 2d of November, 1903, the city passed an ordinance for the construction of the sewer in question. Section 3 of this ordinance reads that: “Said sewer shall conform in detail to plans and specifications prepared for the construction of said sewers, said plans now on file in the office of the board of public works, marked approved and dated October 29, 1903.” These specifications were not made out or approved by the board of public works until ten days (November 12th) after the passage of the ordinance. What were called “plans” for the sewer were approved and on file with the board of public works four days before the ordinance was passed as is recited in the section just quoted.

The ground claimed to invalidate the tax bill is that at the time the ordinance was passed the specifications were not in existence and therefore could not have been a part of the ordinance, and in .consequence the ordinance did not comply with the charter requiring it to specify the dimensions, material and character of the sewer. This requirement of the charter is a mandatory legislative function which cannot be delegated by the city council.

The ordinance need not embody the specifications in the face of the ordinance itself, but may refer to them as being at a certain place. They then become a part of the ordinance itself. [Galbreath v. Newton, 30 Mo. App. 380, 392.]

• But manifestly the specifications must have been considered by the city council and be in existence when the ordinance is passed, else, necessarily, they could not be a part of it. The claim that they could be, has been characterized as a gross absurdity. [Dickey v. Holmes, 109 Mo. App. 721; McCormick v. Moore, 134 Mo. App. 669; Paving Co. v. O’Brien, 128 Mo. App. 267.]

In avoidance of this plain requisite, plaintiff says that the face of the ordinance itself covers the requirement of the charter. In other words, that it contains the specifications for the sewer and that therefore separate specifications were not necessary and their not ■being in existence when the ordinance was passed was of no consequence. The circuit court took that view and gave a declaration that if the evidence showed such to be the fact, the finding would be for the plaintiff. But the court found it was not a fact. We are of the opinion that the court’s view, as expressed in the declaration given, was correct; for, if the specifications for the work are embodied in the ordinance itself, it would render unnecessary their repetition in a separate paper.

It is therefore only necessary to ascertain if there was evidence to justify the conclusion of the court, and we find it abundant. In addition to what is stated and required in the ordinance, the specifications provide for the excavations, trenches, the manner of their construction; the brick and rubble masonry; the kind and character of mortar, concrete, cement and other material; syphon traps are provided for and their character prescribed; the character of the work and the places where certain material is to be nsed on portions of the work required by the ordinance proper; foundations for the sewer at different places and the manner of their construction. These are but a part of the specifications. They cover near fifteen pages of printed matter, making it impracticable to set them out. It is sufficient to say of them that they include many important and vital requirements to a lawful performance of the work, which are not found in the face of the ordinance. We think it- a complete answer to plaintiff’s suggestion that the ordinance itself contained all the specifications necessary, to call attention to the fact that confining the ordinance to the provisions embodied in its face, specifications could be- drawn, without conflicting therewith, which would reduce the character, grade or quality of the work and much of the material, as well as the value of the sewer completed, in a very substantial degree. The record shows that, practically speaking, the ordinance, unaided by the specifications set out, would have afforded little protection to the property holder.

We are at a loss to understand why plaintiff should cite us to Dickey v. Porter, 203 Mo. 1, 35, 36. The specifications for the sewer work in that instance were prepared and placed on file with the board of public works before the passage of the ordinance and the ordinance referred to and adopted them. That case is strongly against the situation in which the facts place plaintiff in this case. Nor do we see that Fox v. Schoenemann, 52 Mo. 348, has any bearing on the present record.

Plaintiff however takes the position that the specifications were in existence and on file when the ordinance was passed. This claim'is founded on evidence that there were printed blanks, or what may be termed blank specifications, printed and kept on band in tbe city engineer’s office by order of tbe city council. These were provided for use whenever needed and have been likened by ns in a former case to blank deeds which notaries, and frequently county recorders, kept on hand. [Richardson v. Walsh, 142 Mo. App. 328; McCormick v. Moore, 134 Mo. App. 669.]

We have examined other authorities cited by plaintiff, but find them not applicable to the facts of the present case.

After full consideration of the record, we conclude we have no ground for interference with the judgment, and it is accordingly affirmed.

All concur.