Hanick v. Marion County , 312 Mo. 73 ( 1925 )

ON MOTION FOR REHEARING. Appellant's learned counsel in their reply brief in support of the motion for rehearing, contend, correctly as we think, that Section 10734, Revised Statutes 1919, has no application to this case and specially rely on Section 10, Laws 1919, p. 657, now Section 10901, Revised Statutes 1919. We quote from their brief:

"That is made extremely clear by referring to provisions of Section 10, providing for building by a county of roads under supervision of State Highway Board and for receiving by state or government aid therefor. [Sec. 10, Laws 1919, pp. 657, 658.] ``In addition to roads provided for in preceding sections of this act any county . . . desiring construction of any state road . . . may present the matter in writing to the State Highway Board . . . and thereupon the board may direct the highway engineer to view, survey and furnish plans, specifications and an estimate of cost thereof . . . upon receipt of such survey, plans, specifications and estimate of cost the engineer with the State Highway Board shall examine same and if deemed practicable . . . such road shall be included in the project statement of roads to be constructed with Federal aid . . . and shall authorize said county . . . to proceed to construct said road in accordance with said survey, plans and specifications and within the estimate so furnished and all in accordance with the requirements of the State Highway Board and the said Federal bureau of public roads, provided: ``No such road shall be constructed unless the construction thereof meets the approval of said Federal bureau of public roads and then when so constructed one-half of the cost thereof shall be paid by the county . . . and the other half by the Federal aid fund.'

"This is a special statute to enable counties by contract under supervision of State Highway Board to build a road which will be a state highway and for which the Federal Government through the State will pay one-half.

"No provisions in Section 10 for county court having any control of cost or location or plans or specifications of said road.

"Special powers are by Section 10 conferred on county to enable it to procure Federal aid to extent of one-half of cost of road and special method is prescribed for exercise of this power and in such circumstances the rule is the particular method pointed out for exercise of the power for bids renders nugatory the doing of the thing in any other way under the rule of expressio unius,exclusio alterius. [Citing cases.]

"There is no provision for advertising by the county in Section 10, Act of 1919.

"Section 10734 contemplates work wholly under county control and wholly paid for by county on county roads as contradistinguished from state highways.

"Section 10, Act of 1919, contemplates Federal aid to build a county road only when Federal bureau approves, because Section 10 proviso expressly says no such road shall be built without Federal bureau approved it.

"For these reasons, Section 10734 is wholly inapplicable to the contract in suit herein.

"The State Highway Board attempted to build the road, advertised twice, could get no bids. If it were not for the provisions of Section 10 exactly meeting the situation then confronting Marion County and the State Highway Board, Marion County could never have received one-half cost of road from State.

"Marion County applied to State Highway Board to build the road. Marion County did not attempt to build the road. Marion County did not order the road built.

"The State Highway Board only had power to and did order the road built by directing Marion County to make a contract to build it and no provisions of Section 10 specified for advertisement for bids nor any particular method of making the contract. Marion County could could only get Federal aid by the State Highway Board ordering the road. If Marion County alone ordered in no Federal aid could be procured and Marion County would have had to pay for it and then Section 10734 might have applied."

It is true, as stated by counsel, that "there is no provision for advertising by the county in Section 10, Act of 1919." But Section 10905, Revised Statutes 1919, being Section 14 of the Act of 1919, reads, in part: "All road and bridge construction done under the provisions of this article shall be under the supervision and control of the State Highway Engineer, and all work done by the county, civil subdivision or persons interested, under the provisions of Section 10901, shall be let by competitive bids in the manner provided by law." Hence, as the contract for the construction of this project was not let on competitive bids, in violation of the requirements of the statute, it imposed no obligation on the county. No citation of authorities is needed in support of this proposition.

Furthermore, the proviso to Section 10901, cited in appellant's brief, supra, limits the liability of the county to the payment of one-half of the cost of the construction of the road. This mandatory feature of the statute was ignored in the contract sued upon. It provided in substance that the county should finance the project and pay the contractor sixty per cent of the profits. The statute relied on makes no provision for the division of profits. The contract was clearly unauthorized by the statute, illegal and unenforceable. Other contentions need not be considered. The motion for rehearing is overruled. Railey, C., not sitting.