Gratz v. City of Kirk-Wood , 165 Mo. App. 196 ( 1912 )

REYNOLDS, P. J.

(after stating the facts).— This being a suit in equity to cancel certain taxbills and remove them as being a cloud on the title of plaintiff to certain real estate owned by her, its subject-matter is within the appellate jurisdiction of this court, our Supreme Court, in Smith v. Westport, 174 Mo. 394, 74 S. W. 610, having expressly decided, on the authority of Barber Asphalt Paving Co. v. Hezel, 138 Mo. 228, 39 S. W. 781, that such a suit is not one involving title to real estate. The amount involved is also within our jurisdiction.

Being a suit in equity, the appellate court is charged with the duty of determining for itself the weight to be given to the evidence, and in all cases on appeal, whether in actions at law or suits In equity, is charged with the proper application of the law to the facts.

.It is almost a maxim applied in the disposition of equitable actions in the appellate courts, that while the duty of determining on the evidence itself is cast upon the appellate court, great deference will be paid to the conclusion arrived at by the trial court on the evidence. But this deference should not be, and never is, carried to the extent of yielding the convictions of the appellate judges to those held by the trial court. To do so would be abrogating a duty imposed upon the former by the law and under the practice in equity.

It is with the greatest deference, therefore, to the learned trial judge, who heard and determined .this case, that we are compelled to differ with him both as to the conclusion of fact and the application of the law to those facts.

The city of Kirkwood is a city of the fourth class. Under section 9385, Revised Statutes 1909, it is provided, among other things, that district sewers shall be established within the limits of the districts to be prescribed by ordinance and that the hoard of aider-men of the city shall cause sewers to be constructed in a district either on petition of a majority of the property holders resident therein or whenever the board shall, of its own volition, deem such sewers necessary for sanitary or other purposes. Such sewers shall be of such dimensions and materials as may be prescribed by ordinance. It does not appear in evidence in this case whether this district sewer under consideration was constructed pursuant to a petition of the property owners or by the board, acting on its own discretion. . That is not material here, as there is no question that an ordinance providing for the construction of this district sewer was duly adopted.

Section 9407, of the Revised Statutes 1909, .provides that before the board of aldermen shall make any contract for building sewers, “an estimate of the cost thereof shall be made by the city engineer or other proper officer and submitted to the board of aldermen, and no contract shall be entered into for any such work or improvement for a price exceeding such estimate. ”

Taking up the finding and conclusion arrived at by the learned trial judge, to the effect that these special taxbills are void because the price exceeded the estimate and the bid on some of the items, we are unable to agree with him.

Considering the bid and contract and estimate as a whole, the contract was not let “for a price exceeding the estimate.” [Section 9407, supra.] This contract was not let on items but as a whole; the bid.was taken as a whole; the contract was made ks a whole. The prices were of no concern to the property holders whose property was to be assessed for this improvement. What they were concerned with was the total. A very different proposition would be presented if the several classes of work, for instance the earth excavation, the loose rock excavation and the rock in place, were to have been let out under separate contracts. But that was not the case here. The estimate was in gross. The particulars and details were of service only as specifications'of the particular work to be done; accomplishing that, they pass out of consideration for all practical purposes, the total price not exceeding the total estimate.

Furthermore, these itemized prices and quantities were mere estimates, when they entered into the preliminary estimate, the bid and even the contract.

We have here practically the same situation presented to the Court of Appeals of New York, In re Marsh, 83 N. Y. 431, l. c. 435. In that case it was said, “The work was let as a whole and any bidder could in the first place estimate the cost of the whole and then distribute the sum among the items as he liked.” There, as here, the vital, crucial point was, the final, actual cost of the work as a whole. Of such a situation it is held in the case above cited, that the variance in the estimate of the cost of the items was not a substantial variance, tested by the actual outcome as to cost of the whole work. Such variance, that court held, is allowable.

In Cuming v. City of Grand Rapids, 46 Mich. 150, Judge Cooley, speaking for the Supreme Court of Michigan, says, treating of a special taxbill for street, improvements, where the estimate and bid for the work were in gross, not by items, that the estimate required is for the information of the council, to enable that, body to determine how much money shall be raised even if they have the sum total and act upon it without calling for further particulars, it may well be urged that the question of the presence of particulars is'precluded.

That the hid and the price ultimately paid varied from the preliminary estimate made by the city engineer, on which estimate bids were doubtless invited for doing the work, was to be expected. An estimate-does not pretend to be based on absolute calculations-but is exactly what the word means, an estimate. To make an estimate, ordinarily means “to calculate roughly, or to form an opinion as to amount from imperfect data.” [Louisville, H. & St. L. Ry. Co. v. Chandler’s Admr.. (Ky. Court of Appeals), 72 S. W. 805.] Webster’s New International Dictionary (Ed. 1910), defines the word estimate as meaning “to fix the worth, value, size, extent, etc., of, especially roughly or in a general way.” The use of the word estimate ‘ ‘ precludes accuracy. . . . Monthly estimates-are understood to be mere approximations.” [Shipman v. State, 43 Wis. 381, l. c. 389, citing 1 Redfield on Railways, 436.]

As a matter of fact the price at which the work was done fell much below the preliminary estimate; it was even below the bid and contract. It fell below the estimated cost by over $1300; more than $700 below the bid and contract. The property holders were not. only in no manner whatever injured but were benefited by being called on to pay a very considerable amount less than the estimated price for which the proposed work was to be done. It is so manifest in the case at bar that absolutely fair treatment to the taxpayer is shown by the outcome of this transaction,, that wé find no reason to hold and no authority requiring us to do so, that because there was a variation one way or the other of the items in detail as between the estimate, the bid and the final computation, that, these taxbills are void. So that as far as this point is-concerned, we are compelled to differ from the conclu•sion arrived at by the learned trial judge, and to hold that considering the preliminary estimate, this contract was not let “for a price exceeding such estimate. ’ ’

Taking up the second point, we are unable to see a departure from substantial compliance with the provisions of section 9385, Revised Statutes 1909, which provides that “as soon as any district sewer shall have been completed, the city engineer or other officer having charge of the work shall compute the whole cost thereof,” etc.

We have examined all of the authorities referred to by counsel, as well as those relied upon by the trial .judge as the foundation for his conclusion on this point in this case, and are unable to find any of them that go to the extent claimed for them by that learned judge or by counsel. On the contrary, we think that in so far as applicable to the facts in the case at bar, they make against the position of both. Thus, in Heman Construction Company v. Loevy, 179 Mo. 455, 78 S. W. 613, in which it was sought to defeat a special taxbill which had been made out by an appointee of the president of the board of public improvements, our Supreme Court held (l. c. 466) that the act of the appointee, done under the authority of the president, was the act of the president and was sufficient.

In Jaicks v. Merrill, 201 Mo. 91, 98 S. W. 753, our Supreme Court, distinguishing the case from that of City of Nevada to use, v. Eddy, 123 Mo. 546, 27 S. W. 471, says (l. c. 101) that in the case before it, “the common council of the city, upon the recommendation of the park board, determined the material and provided the specifications, and the contract was let to the lowest bidder and the work was performed in strict conformity to the contract and accepted by the board ;and the city, and the mere arithmetical work of the apportionment of the total cost to the several lots abutting on the improvement, by the clerks in the city’ engineer’s office, was in no sense a delegation of the authority of the board and council to those clerks.”

So too, in Dickey v. Porter, 203 Mo. 1, 101 S. W. 586, answering the objection that the taxbills had not been certified by the officer in person and were therefore void, our Supreme Court (l. c. 30) referring to Jaicks v. Merrill, supra, holds that it sees “no reason for departing from the ruling made in that case. A reasonable construction of the charter does not require the president of the board of public works, with his own hand, to do all the clerical work of making out these special taxbills, but when they are issued, as these were, by authority of the board of public works, and signed by its president by the party specially authorized by the resolution of the board, all the substantial requirements of the charter are complied with. ’’

It is said by the Kansas City Court of Appeals in Municipal Securities Corporation v. Gates, 130 Mo. App. 552, l. c. 556, 109 S. W. 85, that “in construing proceedings in invitum, the law authorizing them should be at least substantially followed. The reason for it, in cases of this kind, is that the taxpayer having no voice in the matter ought not to be held liable unless the law of the case has been in all respects substantially followed.’’

With these cases, and others cited by counsel before us, we see no reason whatever, on the facts in this case, to hold that the law relating to the construction of sewers- and the issue of these taxbills in payment therefor has not been substantially followed. The mayor of this city was its executive head. As such the evidence shows that he personally took charge of the construction of this sewer. Not being an engineer, he called to his assistance a skilled engineer to look after the technical details. This engineer did the work under the personal supervision of the mayor, consulted him, reported to him. The mayor was frequently, practically constantly, in direct supervision of it. As such, he was “the officer having charge of the work.” [Section 9385, supra.] To all legal intendment, he computed the whole cost of the work. As such he reported the completion of the work and its cost to the board of aldermen, and that body approved and accepted it. That the engineer may have measured it up and written out the report is entirely immaterial. Pie submitted that report to the mayor, who in turn verified the computation, submitted it to the board as his own computation, the board accepted and approved of it and ordered the projection of the tax and issue of the bills. All this was in substantial compliance with the law. "We are therefore unable to agree to the conclusion arrived at by the learned trial court, that for this last mentioned reason the taxbills are void.

Our conclusion upon the whole matter is that these taxbills were properly issued, issued in due compliance with the law regarding the matter. It results from this that the judgment of the circuit court holding these taxbills void and ordering that they be surrendered up and cancelled is error. That court was therefore in.error in sustaining the petition on these grounds and rendering judgment for plaintiff, respondent here. That judgment is reversed and the cause remanded with directions to the circuit court of St. Louis county to enter up judgment denying the relief prayed for and dismissing the suit.

Nortoni and Caulfield, JJ., concur.