
    City of Springfield to use of Stahl & Graves, Respondents, v. George F. Davis et al., Appellants.
    St. Louis Court of Appeals,
    May 16, 1899.
    Special Tax Bill: city or third class: ordinance: time. In the ease at bar there is a general ordinance specifically providing that the work must be completed -within the time fixed in the contract. Held, that at the time the sidewalk was built the contract for its construction was not in force.
    
      Appeal from the Greene Circuit Court. — Hon.* James T. Neville, Judge.
    Reversed.
    Gideon & Gideon for respondents.
    The answer admits the necessity for the walk and that the ordinance was not unreasonable or oppressive and appellants will not be heard to aver against their answer, or try to disprove its admissions or effect. Bruce v. Sims, 34 Mo. 246; Donan v. Print. & Pub. Co., 70 Mo. 168-175; Wilson v. Albert, 89 Mo. 537-546. The city authorities, and not the courts, are the judges of the necessity of improvements for street purposes. Sec. 8 of art. 2, chap. 13, of the Eevised Ordinances of the city of Springfield, introduced by plaintiffs; acts of 1893, sec. 110, p. 92, cities of the third class. Simpson v. Kansas City, 111 Mo. 237; and authorities cited. The general ordinances of the city do not fix the time in which the work should be done after entering into the contract, without that the time fixed in the contract is not of the essence of the contract, it is merely directory, and unless the ordinance for the, construction of the walk fixes the time, there is nothing r to show that time was of the essence of the contract, and the burden was on appellants to make this showing. The act of 1893 makes the special tax bill pri/ma facie evidence of the regularity of the proceedings, and it devolved on appellants to show that the resolution, or ordinance, authorizing the work to be done, fixed the time of its completion. Acts of 1893, sec. 113, p. 93; Oarlin v. Cavender, 56 Mo. 286; Eose v. Trestrail, 62 Mo. App. 352.
    John Sohmook for appellants.
    The court erred in holding that time was not of the essence of the contract, and that plaintiff’s failure to do and complete the work in question, within the sixty days stipulated, and in fact not until the first of May, 1897, does not affect their right to recover on the tax bill. Eose v. Trestrail, 62 Mo. App. 352; McQuiddy v. Brannock, 70 Mo. App. 535; Ternay v. Dougherty, 53 Cal. 621; Beverage v. Livingston, 54 Cal. 57.
   BIGGS, J.-

The firm of Stahl & Graves, to whose use this suit is prosecuted, are the holders of a special tax bill issued by tbe city of Springfield, a city of tbe third class, for tbe construction of a sidewalk in front of a lot owned by tbe defendants. Tbe improvement was ordered on tbe petition of tbe requisite number of citizens. Stahl & Graves were tbe lowest bidders-for tbe work. Tbe contract subsequently entered into between them and tbe city provided that tbe sidewalk should be completed within sixty days after said contract went into effect, whereas tbe work was not commenced and completed until about six months thereafter. The" defendants pleaded this default in defense of tbe action. Another defense was that tbe sidewalk was so situated as to render it unnecessary. It was averred that tbe walk was located near tbe limits of tbe city in a sparsely settled neighborhood; that no one lived beyond its north end; that it was entirely disconnected from any other sidewalk; that it served no public purposes; that tbe ordinance provided for its construction was enacted for tbe fraudulent purpose of enhancing tbe value of some property belonging to a member of tbe city council and situated in tbe neighborhood of defendants’ lots, and for these reasons defendants claimed that tbe ordinance was unreasonable, oppressive, fraudulent and void. As to this defense tbe court excluded all testimony offered in support of it, bolding that tbe municipal authorities were tbe sole judges of tbe necessity of tbe improvement, and that it was not within the province of tbe courts to decide whether it was reasonable or unreasonable. Concerning tbe first defense tbe court at the .request of tbe parties made tbe following special findings of fact and its conclusions of law therefrom,to wit: “That tbe contract for tbe construction of tbe sidewalk was duly awarded by said city council, by ordinance, to plaintiffs on tbe 1st day of December, 1896; that on tbe 21st day of December, 1896, plaintiffs entered into a written contract with said city for tbe construction by them of said walk; that by tbe terms of said contract said work of constructing said walk was to be done and completed by plaintiffs witbin silty days from tbe date on wbicb said contract went into force and effect; tbat said contract went into force and effect on said 21st day of December, 1896; tbat said contract was tbe only one ever let or awarded by said city for tbe construction of said walk; tbat. said contract was never extended or revived; tbat said work Avas not completed until tbe 1st of May, 1897. I hold tbat. tbe time fixed and stated in said contract Avithin wbicb tbe work of constructing said walk Avas to .be completed is not of tbe essence of tbe contract, and tbat plaintiffs failure to comply Avith said contract in tbat respect does not render the tax bill in suit invalid.” Thereupon tbe court sitting as a jury found tbe issues for tbe plaintiffs and entered judgment for tbe amount of tbe tax bill. Tbe defendants appeal and complain of tbe action of tbe court in excluding evidence offered by them in support of tbe second defense, and they object to and dissent from tbe legal conclusions of tbe court as to tbe first defense.

Tbe special ordinance authorizing tbe contract with Stahl & Graves of date December 1, 1896, does not appear in the abstracts. It is stated in tbe briefs of respondent tbat the ordinance did not provide for tbe completion of tbe work Avitbin any stated time. However tbe contract does not. provide as found by the court. Tbe defendants read in evidence a general ordinance of the city (secs. 4 and 6, art. 1, chap. 13, Rev. Ord., City of Springfield), which provides, (section 4) as follows: Every person to whom any public work or improvement mentioned in this chapter, is awarded, shall Avithout delay, enter into a Avritten contract with said city to do. and complete tbe same according to tbe plans, specifications, and ordinances witbin tbe time agreed upon,” etc.

It must be conceded tbat if tbe time mentioned in tbe contract in question for tbe completion of tbe work was of tbe essence of tbe contract, then tbe contract was not in force at the time the work was done, and the tax bill issued therefor is absolutely void. This question has been discussed both by the supreme court (Carlin v. Cavender, 56 Mo. 286), and by the Kansas City Court of Appeals (Rose v. Trestrail, 62 Mo. App. 352; McQuiddy v. Brannock, 70 Mo. App. 535). In the Oarlin-Cavender case the work was not completed within the time limited by the contract. Neither the special ordinance for the work, nor the general ordinances of the city pi’ovided when the improvement should be completed. The special ordinance merely directed the engineer to cause the work to be done. The defendant contended that this meant immediately, and that so construing the ordinance in connection with the contract, it was apparent that the time provided in the contract for the completion of the work was of the essence of the contract and was so intended. This contention was denied by .the supreme court. The court held that a fair construction of the ordinance left the time for the completion of the work to the discretion of the engineer, and that it appeared that the engineer for prudential reasons had suspended the work, thereby causing the delay, the validity of the tax bill was upheld. The difference between that case and this is that here a general ordinance of the city provides that all such work must be performed “within the time agreed upon,” that is within the time specified in the contract. This tends to show that it was the intention to provide for a definite and specific time for the completion of the work..

In the Rose-Trestrail case, supra, both the special ordinance and the contract provided that the work should be completed within thirty days from the time the contract took effect. The work was not commenced until ninety days after the contract took effect. It was held by a course of reasoning which we believe to be sound, that the time for the completion of the work was of the essence of the contract, and that as this provision had not been substantially complied with the tax bills were void. It is impossible for us to distinguish on principle that case from this. In that case there was a special ordinance specifically fixing the date for the completion of the work. Here there is a general ordinance specifically providing that the work must be completed within the time fixed in the contract. -If a legal distinction caa be drawn upon these facts we have been unable to grasp it. We think there is none, and therefore hold that at the time the sidewalk was built the contract for its construction was not in force. It becomes unnecessary to pass on the other question. However we will call attention to the recent decision of the supreme court in the case of Skinker v. Heman, reported in the Southwestern Reporter, vol. 49, No. 7 (March 27, 1899), page 1026.

The judgment of the circuit court will be reversed.

All concur.  