
    THE CITY OF PLATTE CITY to the use of W. A. PRIOR, Respondent, v. WILLIAM M. PAXTON, Appellant.
    Kansas City Court of Appeals,
    January 10, 1910.
    1. TAXBILLS: Compliance with Specifications. A substantial compliance with the specifications in, conforming to the established grade is a sufficient compliance therewith.
    2. -: -: Petition for Sidewalk. In cities of the fourth class a petition of ten citizens Is not required in cases where it is proposed to remove an old and defective sidewalk and replace it with a new one, under section 5991, Revised Statutes 1899.
    3. -: -: Filing Specifications. Where a sidewalk is to be constructed there is no necessity under the law for the plans and specifications to be on file at the time of the enactment of the ordinance authorizing the improvement.
    4. -: -: -: -. However, where the ordinance itself embodies full plans and specifications it is immaterial whether or not they be filed at all.
    5. -: -: Written Contract. The ordinance, plaintiff’s written bid duly signed, and the resolution accepting the bid which was duly passed and made of record constituted a written contract and was a sufficient compliance with the. statute.
    6. -: -: Contract. Where the ordinance did not specify a time for the completion of the work, by implication, it was required to be completed within a reasonable time, and the motion accepting the bid specifying thirty days for the completion of the work, merely stated a reasonable time and did not add a new condition to the contract, but if an unreasonable time had been specified in the motion, that part of the motion would be regarded as surplusage and the ordinance would control.
    Appeal from Platte Circuit Court. — Eon. A. D. 2f~ Eurnes, Judge.
    * Affirmed.
    
      
      Wm. M. Paxton, pro se, Jno. W. Coots and Chas. H. Winston for appellant.
    (1) No city can enter into any contract except in writing. R. S. 1899, sec. 6759. And tbe entire work must be done after, and not before, the making of the contract. Prior’s hid does not specify thirty days in which to complete the work, nor any time at all; nor does the advertisement for bids specify any time. On October 2,1907, the board of aldermen accepted Prior’s bid, but added that the work should be completed in thirty days. On November 7, 1907, the street commissioner reported to the board that he had closed the contract with Prior for the construction of the sidewalk and on the same day the board passed an ordinance ratifying and approving the commissioner’s act in closing the contract with Prior, after the completion of the work. No time for the completion of the work having been specified in the notice to bidders, all prospective bidders and the public had a right to assume that the time would be fifteen days, as provided in the general ordinances of the city, and not thirty days, as afterwards provided by the order of the board in accepting Prior’s bid on October 2, 1907. This condition of affairs very materially affected the competition of bidders, and had a tendency to deter bidders, for many contractors might have been able to do the work in thirty days, but not in fifteen days. The alleged contract as let was not such as was advertised, and ’hence was illegal and void. Galbraith v. Newton, 30 Mo. App. 393; Springfield v. Davis, 80 Mo. App. 574; Turner v. Springfield, 117 Mo. App. 418; Excelsior Springs v. Ettenson, 120 Mo. App. 224.
    
      James H. Hull for respondent.
    (1) The city passed an ordinance condemning appellant’s walk and authorizing the construction of a new walk in lieu thereof, directed in said ordinance, that the street commissioner make an estimate of the cost of same and to draft plans and specifications for tbe same, to advertise for bids all of wbicb was properly done. Respondent Prior, in dne time pnt in a written bid stating be would do tbe work as per plans and specifications on file as per published notice for twenty cents per square foot, wbicb bid was accepted by order of tbe board, duly entered on tbe journal and tbe street commissioner was directed by order of tbe board, entered of record on tbe journal directing bim to notify said Prior of tbe acceptance of bis bid, which was accordingly done, walk was built according to contract and street commissioner made report to tbe board of aldermen which report was duly accepted and an ordinance passed ratifying and accepting tbe report and all that tbe street commissioner bad done. This ordinance with tbe subsequent proceedings thereunder, constitute a sufficient writing and acceptance by tbe party to be charged to fulfill all requirements of tbe statute. California v. Telephone Co., 112 Mo. App. 722; Lancaster v. Briggs & Nelvin, 118 Mo. App. 576; Water Co. v.. Aurora, 129 Mo. 540; Saleno v. Neosho, 127 Mo. 627; Fayette ex rel. v. Rich, 123 Mo. App. 145. (2) No time having been specified in tbe ordinance for tbe completion of tbe work, all prospective bidders and tbe public were compelled to assume, as tbe law provides, that tbe work must be completed within a reasonable time and to put in their bids accordingly. Tbe contract as let by tbe board to respondent was exactly tbe same as if no reference to tbe time of completion of tbe work bad been made in tbe acceptance of respondent’s bid.. Ayers v. Scbmobl, 86 M'o. App. 349; Carlin v. Cavender, 56 Mb. 286; Hernán v. Gilliam, 171 Mo. 258; Strassheim v. Jerman, 56 Mo. 104; Allen v. La Force, 95 Mo. App. 324; Hilgert v. Paving Co., 107 Mo. App. 396; Montague v. Kolkmeyer, 120 S. W. 637; Excelsior Springs v. Ettenson, 120 Mo. App. 215.
   JOHNSON, J.

This suit is to enforce tbe lien of a special taxbill issued by Platte City, a city of the fourth class, in payment of the cost of laying a granitoid sidewalk in front of premises of defendant. The answer interposes a number of defenses. The cause was tried to the court without the aid of a jury and judgment was entered for plaintiff. Defendant appealed.

On May 1, 1907, an ordinance was passed entitled “An Ordinance to condemn wooden and brick and defective sidewalks in the city of Platte Oity and for the removal of all walks so condemned and to provide for the construction of new sidewalks so condemned and removed.” A wooden sidewalk in front of defendant’s property was condemned in this ordinance and was ordered to be removed and replaced by a granitoid sidewalk. Defendant failed to comply with the ordinance and on August 7th of the same year another ordinance was passed in which, after reciting the enactment of the first ordinance and defendant’s refusal to comply with its requirements, it was provided that the wooden walk be removed and replaced by a granitoid walk. Full specifications for the improvement were embodied in the ordinance. The specifications included the work of excavating and provided that the cost of such work should be treated as a part of the cost of the improvement. The street commissioner was ordered to prepare specifications and an estimate of the cost of the improvement, to file them with the city clerk, and then to advertise for bids.

In obedience to this ordinance, the street commissioner prepared and filed plans and specifications which were the same as those embraced in the ordinance, with the exception that they failed to mention the work of making the necessary excavation for the sidewalk. An estimate was filed at the same time and, in further compliance with the ordinance, an advertisement was made for bids and in response thereto plaintiff filed the following bid on October 2nd:

. “I, W. A. Prior, agree to furnish all materials,forms, labor, etc., necessary to build and complete tbe said sidewalks as specified in notice and to do all work according to specifications and in a workmanlike manner for tbe sum of twenty cents per square foot.”

At a regular meeting of tbe. board of aldermen held October 2nd, a motion was carried that tbe bid of plaintiff being tbe only bid and, consequently, tbe lowest and best bid, be accepted and ‘fit is also further ordered that W. A. Prior construct tbe walks within thirty days from tbe time of tbe letting of tbe contract.”

No written contract was executed by tbe parties, tbe ordinance, bid and acceptance by motion being treated as tbe contract. It is conceded tbe work was done in accordance with tbe specifications except in one particular. Tbe ordinance required tbe walk to be laid on tbe established grade. Defendant contends this was not done, while plaintiff contends that this requirement was substantially met. After tbe completion of tbe work (accomplished within thirty days of tbe passage of tbe motion accepting tbe bid), an ordinance was passed ratifying all that bad been done and an assessment was levied and tbe taxbill in suit issued in conformity thereto. Tbe court made tbe following special findings of fact:

“Tbe court, having been requested by plaintiff to make a special finding of facts, makes the following finding:
Tbe court finds that at tbe time of tbe passing of all tbe ordinances in question, and at all times mentioned in tbe pleading and evidence, that tbe city of Platte City was a city of tbe fourth class, duly and legally incorporated under tbe laws of tbe State of Missouri, and existing and acting as such at all times mentioned in tbe pleadings and tbe evidence.
Tbe court further finds, that in this particular matter of constructing sidewalks in front of tbe property described in tbe petition, tbe city proceeded under the general statute giving tbe city power to tear up wooden sidewalks and replace them.
The court finds that at the time this sidewalk was condemned by the city authorities, the wooden sidewalk existing in front of the property mentioned in the petition was in a dilapidated, dangerous and unsafe condition.
The court finds that the ordinance, orders and official acts of the officers of the city of Platte City, concerning the condemning and removal and tearing up of the old walks and replacing them by putting down the granitoid walks in question, was legal and conformed to the ordinances of the city of Platte City, and also to the laws of this State.
The court further finds that all of the proceedings and ordinances condemning and tearing up of the old wooden sidewalks and constructing and building the granitoid sidewalks were lega] and valid, and that the proceedings were according to law.
The court further finds that from the weight of the evidence in the case the granitoid sidewalk constructed on the premises described in the petition, is substantial and is practically on grade according to the lay of thq land and the surface of the land and street, and the finding will be for the plaintiff.”

These findings, so far as they relate to controverted issues of fact, will be treated as the verdict of a jury. On the issue of whether the sidewalk was laid on the established grade, we find credible evidence in the record supporting the finding of the court that the sidewalk substantially conforms to the established grade. A substantial compliance with specifications in such cases is a sufficient compliance. It would be a harsh and unjust rule that would require the contractor to construct the sidewalk to conform exactly in its whole course to the established grade.

Many points are made by defendant in support of his contention that the proceedings leading to the assessment were invalid for tbe reason that they did not meet the requirements of the statute. We shall discuss all of these points we deem of sufficient merit to call for special notice.

First, it is said the city had no authority to condemn the old sidewalk and to order the construction of a new one to replace it since it appears that no petition of ten citizens was filed. The statute provides (sec. 5989, R. S. 1899) : “Upon the petition of any ten citizens of the city the hoard of aldermen shall have power to make contracts for the construction of sidewalks, etc.” Section 5991 provides: “In addition to the powers hereinbefore granted, the hoard of aider-men may, by ordinance or resolution, condemn wooden and defective sidewalks, and may remove walks so condemned and may provide for the construction of new sidewalks in the place of walks so condemned and removed.”

Construing these two sections together, we think they express the legislative intent of requiring a petition of ten citizens only in instances where it is proposed to construct a sidewalk for the first time and not to cases where it is proposed to remove an old and defective sidewalk and replace it with a new one. The latter cases fall within the purview of section 5991 which appears to dispense with the filing of an initiatory petition.

Further, it is argued that the proceedings were void because the plans and specifications referred to in the ordinance authorizing the improvement were not on file with the city clerk at thd time of the passage of that ordinance. The statutes make a marked distinction between sidewalks and other classes of street improvements such as paving and grading. In the latter cases the initiatory proceedings must either contain the plans and specifications or else refer to plans and specifications then on file. This is for the protection of the property owners to be affected. They must be given an opportunity to arrest the proceedings by a majority protest against the improvement. [City of Kirksville v. Coleman, 103 Mo. App. 215; Paving Co. v. O’Brien, 128 Mo. App. l. c. 281.] But the law makes no provision of this character where a sidewalk is to. be constructed and, consequently, there is no necessity for the plans and specifications to be on file at the time of the enactment of the ordinance authorizing the improvement. Moreover, in cases such as the present, where the ordinance itself embodies full plans and specifications, it is immaterial whether or not they he filed at all. Reference in the ordinance to plans and specifications is only a statutory substitute (sec. 5989) for their incorporation with the ordinance.

Next, defendant insists that the assessment was invalid because no written contract was executed by the city and plaintiff (citing sec. 6759, R. S. 1899). The ordinance, plaintiff’s written bid duly signed, and the resolution accepting the bid which was duly passed and made of record, constituted a written contract and were a sufficient compliance with the statute. It is the law that the written contract can create no rights or obligations in excess or defect of those created by the ordinance, and this being true, what necessity can there be for the execution of a separate written contract?

Defendant urges that the acceptance by the city did not close the contract because it injected a new condition, i. e. that the work should be completed in thirty days. The ordinance did not specify a time for the completion of the work and, therefore, by implication, required the improvement to be completed • within a reasonable time. It appears that the motion accepting the bid merely specified a reasonable time and, therefore, did not attempt to add a new condition to the contract expressed in the ordinance, but if the time stated had been either unreasonably long or short, the ordinance would control, and that part of the motion should be regarded as mere surplusage because of its utter impotence.

We conclude that tbe proceedings leading to tbe issuance of tbe taxbill were valid and accordingly tbe judgment is affirmed.

All concur.  