author: BONH, C. PER CURIAM.

text:
    In re GRADING INDEPENDENCE AND WESTPORT ROAD; KANSAS CITY v. RICHARD SMITH et al., Appellants.
    Division Two,
    December 19, 1911.
    1. TRIAL BY JURY: Constitutional Guaranty: Action at Law. The Constitution of Missouri guarantees a trial by jury of all issues of fact arising in legal actions or proceedings. The parties to legal proceedings cannot be deprived, without their consent, of a trial by jury, composed as at common law, of any issue of fact for the trial of which it was necessary to call a jury when the first Constitution of this State was adopted.
    2. -: Enforcing Grading Ordinance: Abandonment of Highway: Defense. When abandonment of the highway in question is set up as a defense to a proceeding .to enforce a grading ordinance, under the charter of Kansas City, the issue arising is one of fact to be tried by a jury. If the verdict of the jury should be against the defendants, the court may then proceed to enforce the ordinance; and the defendants will be concluded by the adjudications invoked in their answers from thereafter bringing an independent suit to recover the property or establish a title thereto.

      Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Reversed and remanded (with directions).

      Gage, Ladd & Small and B. J. Smith for appellants.
    Defendants ’ motion for trial before a common law jury should have been sustained, (a) Abandonment is a question of fact for jury. Clark v. Mammerle, 36 Mo. 620; Fine v. Public Schools, 30 Mo. 166; Landes v. Perkins, 12 Mo. 238; Campbell v. City of Kansas, 102 Mo. 34$. (b) The practice code provides for trial by common law jury. Badgley v. St. Louis, 149 Mo. 122; Stevens v. Kansas City, 146 Mo. 465; Lovitt v. Russell, 138 Mo. 474; Drainage Dist. v. Jamison, 176 Mo. 564; State ex rel. v. Cates, 190 Mo. 556.

      John G. Park and John G. Schaich for respondent; Frank Hagerman and Cowherd, Ingraham, Durham & Morse of counsel.
    Appellants’ request for a trial by common law jury was properly denied, (a) This proceeding for trial by jury of six freeholders is provided by the city charter. The charter makes no provision for trial by a common law-jury in this kind of case. Consequently in treating appellants’ answers and motions as pleas in abatement, and according them a full hearing herein, the court gave them really more than they were entitled to in this case. All the hearing the charter contemplates, is upon the issue of whether or not abutters will be damaged by the grading. Sec. 6, art. 8, Charter of 1889. (b) It is proper for the city to provide the procedure in such cases, and the plan provided by it is exclusive. It is a matter of local concern. Sec. 13, art. 8, Charter of 1889; City of Kansas v. Hill,' 80 Mo. 523; State ex rel. v. Field, 99 Mo. 352.
   BONH, C.

This is a proceeding begun in the circuit court at Kansas City for the “purpose of enforcing a grading ordinance, approved October 25, 1906, entitled: “An ordinance to grade Independence and Westport road from Oak street or Gillham road to Janssen Place.”

A certified copy of the ordinance was filed in the circuit court, and publication thereof was made as prescribed by section 5 of article 8 of the charter, which was adopted by Kansas City in pursuance of the enabling act contained in article 9, sections 16 and 17 of the Constitution of 1875.

Before the expiration of the time provided for filing the claims for damages, defendants, Eichard Smith and Olivia Smith, appeared and filed separate answers to said proceeding, each of which denied the existence of the road referred to in said ordinance; admitted that many years ago a road of that name “of an uncertain and irregular width, varying from one rod to thirty feet,” but of no uniform width and not forty feet wide in any place, had been used by the public between the towns of Westport and Independence, Missouri, but averring that said road was never legally established nor worked by the road officials of Jackson county, Missouri, nor changed, nor improved by the city officials of either the city of Westport or Kansas City, Missouri, while it was within their respective limits; and averring that since the year 1885 no public money or labor had been expended on said road. The defendants answered further, that from the settlement of the adjoining territory (which took place in 1885 and 1887) the traveling public ceased to use tlie Independence and Westport road, but used in lieu thereof irregularly established streets; and that from said time the said road was entirely abandoned by the traveling public and has never since been used as a highway between said city of Independence and said city of Westport, now a part of Kansas City, Missouri; and that for more than fifteen years, last past (except for the ordinance now sought to be enforced), this alleged part of said Independence and Westport road was ■ never the subject of municipal legislation, nor improved, nor received any attention of any kind or character whatsoever, but has been continuously taxed as the private property of individuals, being taxed for all purposes, etc.

The answers then set forth the portion of the road which it averred belonged to the respective defendants, and concluded, to-wit: “By reason of all of which, this defendant avers that the said Independence and Westport road, which is now sought to be graded in this proceeding, under the said Ordinance No. 34157, has long since been abandoned as a public road and highway; that the object and purpose for which it was originally set apart and used by the public has long since passed away; that its legal existence as a State or county road and thoroughfare has long since lapsed and been abandoned by the public; that plaintiff, Kansas City, Missouri, by its acts and proceedings as above enumerated, is and ought to be estopped to claim any portion of this said road as and for a public street or highway. Wherefore, this defendant prays that this proceeding be dismissed and that he recover his costs herein expended.”

The aforesaid answers were filed by leave of court. Thereupon the defendants moved the court for a trial of the issues raised by their separate answers by a common law jury of twelve jurors, and alleged as grounds for said motion, to-wit:

“1st. That each and every issue raised by the separate answers of the defendants, Richard Smith and Olivia A. Smith, filed in this cause, is an issue of fact, and as such is triable only by and before a common law jury.
“2d. That the said separate answers filed herein raise more particularly the issue of fact as to whether the said alleged road sought to be graded in this proceeding has not in fact been abandoned by the public long prior to the institution of these proceedings and the passage of the ordinance of Kansas City, Missouri, on which these proceedings are based.”

This motion was overruled by the court, to whose action in so doing defendants duly excepted and presented a bill of exceptions, which was signed, sealed and delivered to the court, and made a part of- the record the 16th day of January, 1908. Thereupon, the cause was tried before the court, and the respective parties presented the testimony of many witnesses, covering a long period of time, bearing on the issues raised by the answers of the defendants.

After hearing all the evidence and refusing a number of declarations of law, requested by defendants, the court gave four declarations of law at the request of defendants, two of which are, to-wit:

“II. The court declares the law to be that under the charter of Kansas City, Missouri, no ordinance to grade' a street or highway can have any legal effect or validity if, at the time of the passage of such ordinance to grade, such street or highway did not have any legal existence.
“III. The court declares the law to be that in proceedings to grade public streets and highways under the charter of Kansas City, Missouri, and the general law, the jurisdiction of the .court depends on the validity of the ordinance to grade, • and, if the ordinance be null and void for,any reason, then the court is without jurisdiction and such proceedings must he dismissed.”

After argument of counsel, the court handed down its decision on the 14th of December, 1907, which recited the previous steps taken in the cause; the refusal of defendants’ demand for a common law jury and the exception saved to that ruling; and announced the following finding of facts upon the issues joined:

“1st. Ordinance No. 34157, entitled ‘An ordinance to grade Independence and Westport road from Oak street or Gillham road to Janssen Place,’ was passed by the common council of Kansas City, Missouri, and was approved by the mayor October 25, 1906.
“2d. The said road when in Jackson county, Missouri, was located, laid out and put in use about 1841, by' proceedings in the county court of said county, pursuant to the law of the State then in force, and became a State and county road, and was worked by the county as such up to the year 1887. It was a public traveled road for some years prior to 1841, and the commissioners appointed by Legislature laid out the road along the line where the road theretofore traveled had been, and where the road was at the time of the passage of said ordinance.
“3d. In 1891 the limits of Westport were extended over the territory which included that portion of the road described in said ordinance, and, thereafter, in 1897, such territory became part of Kansas City, Missouri, by an extension of its limits.
“4th. That portion of said Independence and Westport road mentioned in said ordinance has never been vacated, abandoned or closed, and no ordinance of any city or resolution of the county court was ever passed to that effect, but at all times since it was opened for use, about 1841, up to the time of the passage of said ordinance, it was actually open, and actually used as a public highway, thoroughfare, and passageway for the public as follows: Up to about, the year 1887, it was used generally by the public; after said time and until about the latter part of the year 1897 the use by the public was not so general, because other streets in the general neighborhood had been opened; from the latter part of the year 1897 to the time the construction of the sewer hereinafter mentioned it was used by the people living upon what was called the Perkins or Flower tract, and by the Cambie family who lived in a small house east of the Perkins tract, such as tradespeople who had need to deliver merchandise there, and by visitors to said houses, and was open so as to be used by all of the public who had need to use it until about March, 1907, at which time it became impassable by reason of the construction of a sewer in said public highway.
“5th. That the land sought to be graded is a public highway; and that the only rights of the defendants, Richard Smith and Olivia Smith, therein are those of abutting property Qwners.
“6th. No claims for damages have been presented or filed, although the court now offers leave to defendants to file same, which defendants decline to accept.”

Upon this finding of facts, the court held it had power and jurisdiction to act as provided in the charter of Kansas City respecting the grading of streets, and denied the defenses set up in the answers of defendants. To which action of the court in finding the facts aforesaid the defendants objected and at the time excepted. After judgment upon said finding and decision of the court, defendants, Richard Smith and Olivia Smith, duly filed their motion in arrest of judgment and for a new trial.

Both in their motions for new trial and in arrest, the defendants specifically complained of the refusal of the court to grant them a jury trial in this cause, and duly excepted to the action of the court in overruling the said motions, and perfected their appeal to this court.

OPINION.

I. The power to grade its streets and highways is regulated by the charter of Kansas City, Missouri, article 8, sections 1 to 16 inclusive, Charter and Revised Ordinances 1898, p. 126. In the enforcement of ordinances made for that purpose, the action of the circuit court is set in motion by filing therein a certified copy of the grading ordinance. Thereupon, notice by publication is given to all persons whom it may concern, fixing the time in which claims for damages must be filed or barred. The hearing of such claims is before six commissioners, who may hear evidence and visualize the property and report the actual damages or just compensation of the respective claimants “under such instructions as shall ... be given them by the court or judge.” Any person aggrieved may appeal. The article contains this further provision: “The proceedings herein shall in all respects not herein provided for conform as near as may be to the practice and procedure in civil cases.” [Ibid., secs. 7 and 11.]

The specific issue presented by the filing of a claim for damages is the only one which may be tried in the circuit court by 'the six commissioners. The charter makes no express provision for the trial of any other issue. It was held, prior to the adoption of its present charter, that this single issue might be constitutionally referred to this board of six commissioners. [Kansas City v. Hill, 80 Mo. 523.]

It was also ruled that the use of five men as a jury or body of commissioners, appointed by the circuit court to assess damages sustained for the taking of property for the construction of a plank or macadamized road, did not contravene the provisions of the Constitution on the right of trial by juries, since, in so acting’ the five commissioners were not performing the usual functions of a jury in civil or criminal trials; and, therefore, the Legislature did not violate the Constitution in providing that they should consist of a less number than twelve. [Railroad v. Pickett, 25 Mo. 535.]

In the case of State ex rel. v. Field, 99 Mo. 352, the question was whether or not the charter of Kansas City, adopted under authority of the Constitution on April 8, 1889, was controlled by the general provisions of the Act of the Legislature of 1885, which prescribed the method for the assessment of damages and benefits in grading and regrading streets in cities. The enabling act (constitutional provision permitting the adoption of this charter) declared that the charter adopted thereunder should supersede all laws then in force. The court ruled: “This matter of assessing damages and benefits for grading and regrading streets naturally falls within the domain of municipal •government. The Act of 1885, as amended, is one of those laws which the enabling act declares shall be superseded by the adopted charter. When the present charter of Kansas City became a law, the eighth article suspended and took the place of the general law of 1885.”

It may also be conceded that at common law the right of trial by jury in condemnation proceedings did not exist in the absence of constitutional or statutory provisions conferring such right. [St. Joseph v. Geiwitz, 148 Mo. l. c. 216, and cases cited.] This rule, however, has now been altered by the Constitution. [Art. 12, sec. 4.]

It is apparent that none of these cases nor any of the provisions of article 8 of the charter of Kansas City have any bearing whatever on the point presented for review by the appeal in this case, which is whether the defendants were entitled to a common law jury of twelve men to try the issues raised in their separate answers as to the existence or abandonment of the road at the time the ordinance was enacted. The point of inquiry is, therefore, whether or not either of these issues was a jury question at common law at the time of the adoption of the Constitution of. 1875. For, if so, then the action of the trial court in denying the defendants a trial by jury was error. The constitutional right of a jury trial has been defined and upheld in several recent rulings. In one of these, Lee v. Conran, 213 Mo. 404, Judge Woodson, speaking for Division One of this court, and having under consideration the right of a defendant in a suit brought to quiet title to land to demand a trial of the issues joined by a jury, first defined the issues joined as a claim between a shore owner and an island owner for an accretion of land caused by the action of the river; he then held, the solution of the question was dependent on whether the parties were entitled to an ordinary judgment at law, for if this were the extent of the relief to which they were entitled, their right to a jury trial was absolute under the Constitution. The judgment was reversed and remanded for the refusal of the trial court to submit the case to a jury.

The question of a right to a jury trial was next presented to the court in a suit brought against a railroad for- damages to crops. The defendants pleaded settlement. The plaintiff replied that the settlement and release were procured by fraud. The defendants insisted that the act of the Legislature permitting a reply so framed was unconstitutional in that it would result in the abolition of suits in equity for the exertion of its peculiar power to annul and cancel fraudulent acquittances and settlements. This contention was denied. On that subject, this court, speaking-through Craves, J., in Division One, said: “This statute is challenged on the ground that it is violative of section 28, article 2 of the Missouri Constitution. This section of the Constitution reads: ‘The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may. consist of less than twelve men, as may be prescribed by law. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill. ’ The defendant after invoking this section of the Constitution, says that it is entitled to a trial by a chancellor where there has been executed a release, which is pleaded in bar of an action, and fraud in the execution thereof is alleged by the plaintiff, and that this statute violates its constitutional right in that it forces the trial of that issue to be before a jury. The Constitution says, ‘The right of trial by jury, as heretofore enjoyed, shall remain inviolate.’ In discussing that right we have held it .to mean that such matters as were triable by jury prior to the Constitution of 1875, could’not be shifted to the equity side of the court. In other words, the status of what must be tried by a jury was fixed by the conditions existing at the time of the adoption of the Constitution.” [Berry v. Railroad, 223 Mo. l. c. 366.]

He then analyzed the cases bearing on the triability of questions of fraud in common law courts, and held that an issue as to the fraudulent procurement of such release was a jury question at common law, and concluded his discussion in the following language: “So that prior to this statute, and without considering the statute, this court has held that fraud in the procurement of a release' was properly pleaded in a reply and properly triable before a jury. The statute therefore does not go further than this court had done about the time of the passage thereof. The statute does not undertake to abolish all equitable jurisdiction, and has never been so considered by bench or bar.”

The action of the lower court in submitting that issue to the jury was affirmed.

The ease was next presented to this court in a suit to recover the value of a, tract of land which it was alleged was used and appropriated by the defendant railroad for a right of way and other railroad uses. The answer was a general denial, coupled with a counterclaim alleging various equitable defenses and praying for affirmative relief. The court held that the right to join both defenses in the same answer was well settled, and further, that it was also “equally well settled law that the filing of an answer in a law case setting up equitable matter m pais entitling the defendants to an affirmative relief and praying for such relief, convert the case from one at law to a suit in equity.’’ [Withers v. Railroad, 226 Mo. l. c. 397.] And holding also that this would not be the case unless the equitable defense set up in the answer was such as to entitle defendant to affirmative equitable relief, and prayer therefor was contained in the answer; that the mere insertion of an equitable defense without more would not convert the legal action into an equitable one. [Ibid., l. c. 396.] In that case the action of a lower court in refusing a jury was affirmed solely on the ground that the case under the above rulings had been converted from one at law to one in equity.

This question of a right to a jury trial was recently considered by this Division in the case of Frowein v. Poage, 231 Mo. 82. That was a proceeding under the statute for the quieting of title, and the dispute between the parties arose as to which was the owner- of an accretion or increase of land formed between their respective properties by the action of the Mississippi river. Judge Gantt, speaking for this Division, on page 89, said: “There were no equities pleaded, either in the plaintiff’s petition and reply or the defendant’s answer, nor did the evidence tend to show a right in equity on either side. It was a plain contest at law, a question of fact, as to which tract the new made land in controversy herein was an accretion. In a word, the issue was one of accretion alone. Was it an accretion to plaintiff’s lands on the west shore of the river, or was it an accretion to defendant’s island? In the face of these undeniable facts there can, we think, be no doubt that the defendant was entitled to a jury and that the court erred in denying a jury trial. [Lee v. Conran, 213 Mo. 404; Berry v. Railroad, 223 Mo. 358; Withers v. Railroad, 226 Mo. 373.] The pleadings and the evidence required nothing but a plain judgment at law either for plaintiff or defendant. But plaintiff insists defendant.has not saved this point in such a manner as to entitle him to complain of the error of the circuit court in denying him a jury trial. . . . There was no waiver of this right.”

He held that the right to demand a jury trial was not waived by failure to renew the same in the motion for new trial or motion in arrest, since error was only shown on the record proper; and, therefore, available, although not made the ground of motion for new trial or motion in arrest, since all defects in the record proper may be taken advantage of for the first time in a court of last resort.

The foregoing decisions clearly show that parties to legal proceedings cannot be deprived, without their consent, of a trial by jury, composed as at common law, of any issue of fact for the trial of which it was necessary to call a jury when the first Constitution of this State was adopted. At that time, a jury of twelve men, unless waived by the parties, was necessary for the trial of all issues of fact arising in legal actions or proceedings. Juries were not called in suits of equity unless the chancellor of his own motion saw fit to submit some issue of fact to them, in which event it was competent for him to take the advice of a jury; but the findings of the jury on such issues were simply advisory and might be wholly disregarded by the chancellor when he came to render a decree in the cause. Juries are also dispensed with as to all issues which the trial court can compel to be submitted to a referee. Aside from these general exceptions and the former right of the Legislature to submit to a body of less than twelve men the issue of compensation in condemnation proceedings (now altered by the Constitution) the right to demand a jury as to all other issues is guaranteed to all litigants by the Constitution and statutes of this State. [Const. 1875, art. 2, sec. 28; Const. 1875, art. 12, sec. 4; R. S. 1909, secs. 1968-1996.]

II. The question of the abandonment of a public road or highway is not an issue for a chancellor or a referee, but is peculiarly one of fact for a jury and determinable by evidence of matters in pais. [Elliott on Roads and Streets (3 Ed.), sec. 1172; State v. Culver, 65 Mo. l. c. 609; R. S. 1899, sec. 9472; R. S. 1909, sec. 10446.]

In this case the defendants filed no claim for damages as owners of abutting property, but set up the sole defense that there was no existing road; that the highway referred to in the ordinance had been wholly abandoned by the public and that the city had never acquired any easement therein for street or road purposes and that the ordinance was therefore a mere “brutum fulmen” without any basis for its operation or enforcement.

The learned trial judge correctly ruled that the validity and operative force of the ordinance depended upon the fact of the existence or the abandonment of the road therein referred to when the ordinance was enacted. This was a correct view of the case, for it would be absurd to hold that a city had power to grade a road, either before its establishment or after its abandonment. The learned trial judge treated the issue of abandonment as presenting a question of fact which must be tried before he could proceed to enforce the grading of the road. This was an accurate conception of the issu.es presented by the answers of defendants. The error which supervened was the denial to -defendants of the right to have that issue tried by a common law jury of twelve men. If the issue of abandonment tendered by defendants was triable at all in the present proceeding, it was clearly one upon which they were entitled to have a jury called. Hence, the trial judge erred in denying that right and assuming to act as a jury himself without the consent of the parties. The only doubt which might have arisen was as to whether it was competent for the defendants to inject this issue in the present proceeding or whether they should have resorted to an independent action to prevent the enforcement of the ordinance and to assert their title to the property in question. Instead of so doing the defendants entered their appearance in the present proceedings, and by their pleadings therein requested the court to submit the issue of abandonment to a jury. This action would have concluded the defendants from any subsequent assignment of error for a ruling invited by them. Besides, it was neither impracticable nor inconvenient to submit an issue of that sort to a jury in a proceeding like the present. This has been constantly done under the present Constitution in the somewhat analogous procedure for the condemnation of property without working any difficulty or embarrassment either in practice or procedure. An inspection of the provisions of the charter of Kansas City will show that it recognizes the probability of other things being required to be done than those specifically mentioned, for it contains a clause requiring the proceedings as to such other matters to be conformed to the general practice and procedure in civil actions. The charter deals only with the usual issues as to the right of abutters to claim damages for grading streets. As to the steps that are necessary to be taken when other claims than damages are made, such as the claim that there was no such street or that it was abandoned by tbe public, the charter makes no specific regulations. This silence of the charter would serve to bring the general code of civil procedure into play, even if the charter did not provide (as it does) that “the practice and procedure in civil cases” should apply in all other cases than those which it expressly covered.

III. Our conclusion is that the defendants were entitled to have the issue of abandonment, set up in their answers, tried as if made in an ordinary legal action wherein it was asserted as a defense, and that it should have been submitted to a common law jury of twelve men. The law designs to avoid circuity of action. This can be done by permitting the defendants in this case to have a jury trial as to the issues of fact presented in their answers. If the verdict of the jury should be against them, the court may then proceed to enforce the ordinance as directed in the charter; and the defendants will be concluded by the adjudications invoked in their answers from thereafter bringing an independent suit to recover the property or establish a title thereto.

For these reasons the verdict and judgment herein will be set aside and reversed, and the cause remanded for further proceedings in conformity with this opinion.

Roy, G., not sitting.

PER CURIAM.

The foregoing opinion of Bond, C. (while sitting in Division No. 2), is adopted as the opinion of the court.


source: Caselaw Access Project

author:
ROY, C.
      PER CURIAM. PER CURIAM.

license: Public Domain

text:
    CITY OF BOONVILLE ex rel. JOHN COSGROVE v. W. SPEED STEPHENS et al., Appellants.
    Division Two,
    December 19, 1911.
    1. CITIES: Street Improvements: Statute: Costs. Proceedings to charge abutting property with the cost of street improvements are in invitum, and substantial compliance with the statute must be shown in order to bind the property.
    2. -: -: Specifications: Contract: Variance. Specifications for paving a city street when drawn provided that both the first and second layers of brick should be rolled with the “city roller.” The city had at that time but one roller, a heavy one. Before the specifications were adopted the city engineer bought a smaller roller and notified the mayor and members of the city council individually of this fact. The specifications as drawn were adopted by the council before a resolution was passed authorizing the purchase of the new roller. The trial court found that all bidders were notified that the smaller roller must be used on the first layer of brick. Finally, the contract with the successful bidder provided that the first layer of brick should be ■ rolled with a roller “designated by the city engineer and furnished by the city.” Held, under these circumstances, that the city’s contract with the successful bidder is valid.
    3. -; -; Ordinances: Specifications: Construction. Laws, ordinances and contracts are to be so construed as to uphold their validity when their language will permit. The same rule applies to the construction of the specifications for street paving which are adopted by a city council and included in the city’s contract with the successful bidder for the work.
    4. -: -: Special Taxbills: Part Payment in Cash. The fact that the city paid in cash a part of the cost of street improvements when the ordinance provided that the contractor should accept special taxbills for the entire cost, does not invalidate taxbills issued to pay the remaining cost.
    5. -: -: -: Engineer’s Estimate. An estimate by a city engineer reading: “In compliance with my duty as city engineer I have computed the cost of paving Fifth street . . . and I find that the work should be done at a cost not to exceed $1.47 per square yard,” is not vague and uncertain, but is held to be sufficient for its purpose.
    6. -: -: -: City Engineer: Ordinance. It is held, in this suit upon a taxbill, that the fact that no ordinance is shown in evidence creating the office of city engineer, when the acting engineer has been for eight or ten years recognized as city engineer by the city government and those dealing with it, does not invalidate taxbills issued to pay for street paving— estimates, specifications, etc., having been supplied by the acting engineer.
    7. -: -: -: Interest: Contract. The ordinance under which proposals for certain street improvements were asked declared that the taxbills should be issued in accordance with the city ordinances. A general ordinance then in force provided for interest upon such special taxbills thirty days after issue and presentation. The special ordinance passed after the work was completed required no demand or presentation of the bills in order to start interest. This last mentioned ordinance gave the contractor no advantage over other bidders.
    8. -: Ordinances: Presumption: Residents' Knowledge. The law presumes that the residents of a city are aware of the provisions of its ordinances.
    9. -: Taxbili: Interest. Where the ordinance authorizing the issue of the original special taxbili set the interest thereon at 8 per cent after thirty days from date of issue, interest upon an amended taxbili must be reckoned as of the original.
    10. JUDGMENT: Interest: Taxbili. A judgment upon a special taxbili for street improvements bears interest at 6 per cent after rendition, even though the taxbili bears interest at 8 per cent (Sec. 3707, R. S. 1899).
    Appeal from Cooper. Circuit Court. — Sow. Samuel Davis, Special Judge.
    Affirmed (as modified).

      W. M. Williams for appellants.
    (1) Proceedings to charge the abutting property with the cost of street improvements are in invitum. Substantial compliance with the statute is essential to bind the property. All who deal with these matters must see that there is no substantial departure from legal requirements. Rose v. Trestrail, 62 Mo. App. 352; Carroll v. City of St. Louis, 4 Mo. App. 192; West v. Porter, 89 Mo. App. 153. (2) “Where the municipal authorities are required to advertise for bids and let a contract to the lowest bidder, they are not at liberty to award a contract different from that advertised. 20 Ency. of Law (2 Ed.), 1169'; 1 Smith on Municipal Corporations, sec. 746, p, 75Q; Le Tonrneau v. Hugo, 97 N. W. (Minn.) 115; Galbreath v. Newton, 30 Mo. App. 3-80; McQuiddy v. Brannock, 70 Mo. App. 549; Clapton v. Taylor, 49 Mo. App. 117; City of Trenton v. Collier, 68 Mo. App. 491; Kansas City v. Askew, 105 Mo. App. 84; Wickwire v. City of Elkhart, 43 N. E. (Ind.) 216; Inge v. Board of Public Works, Mobile, 33 So. (Ala.) 681; Warren v. Mayor of Boston, 62 N. E. (Mass.) 953. (3) Any material departure in the contract awarded, from the terms and conditions upon which the bidding is had, renders the contract, in a sense, a private one. Inge v. Board of Public Works, Mobile, 33 So. (Ala.) 682; Chippewa Bridge Co. v. City of Durand, 99 N. W. (Wis.) 608. (4) The law does not contemplate verbal changes in specifications for public work, and if permitted there can be no certainty of fair competition in the letting of public contracts. Spaulding v. Porsee, 109 Mo. App. 676; Manufacturing Co. v. Hamilton, 51 Mo. App. 125; Bridge Co. v. City of Du-rand, 99 N. W. (Wis.) 608. (5) The statute required written specifications to be on file with the city clerk at the time bids were called for, and these specifications should be sufficiently clear to enable the bidder to act upon them. Dickey v. Holmes, 109 Mo. App. 724; Elliott on Roads and Streets (2 Ed.), p. 620, sec. 594. (6) The ordinance, calling for bids, provided that the contractor should accept taxbills against the abutting property for the entire cost of the work. After the paving was completed and accepted, the city paid about twenty-five per cent of the total cost in cash.. It was further declared in the ordinance finder which proposals were asked that the taxbills should be issued under and in accordance with the charter and ordinances of the city. A general ordinance was then in force providing for interest upon such special tax-bills thirty days after the date of their issue and presentation. The ordinance adopted after the work was completed directed that the taxbills sued on should bear interest thirty days from their date without a reference to a demand. No other bidder had the opportunity to compete for the work on these terms. (7) (a) No ordinance establishing the office of city engineer in the city of Boonville was introduced in evidence. The statute does not create any such office. There is nothing in the record to show that the office of city engineer exists under the ordinances of Boon-ville. There can be no de facto officer in the absence of a statute or ordinance creating the office. The paper purporting to be an estimate was signed as “city engineer” by a person who had no regular term and was only paid by the day for his services. Weesner v. Bank, 106 Mo. App. 668. (b) The so-called estimate does not state the probable cost of the work. It simply says that it should be done at a price “not to exceed” a certain amount per square yard. This is not such an estimate as is required by the statute and is insufficient to serve the purpose intended thereby. City of Boonville v. Rogers, 125 Mo. App. 149; R. S. 1899, sec. 5858, par. 8; Kansas v. Argentine, 47 Pac. 542. (8) The court, in the judgment rendered, erroneously awarded plaintiff interest from thirty days after the date of the issue of the original taxbill. Assuming that all the proceedings were valid, interest cannot be collected under the ordinance until after the issue of the amended taxbill. St. Joseph v. Forsee, 110' Mo. App. 242- City of St. Louis v. Allen, 53 Mo. 57; Paving Co. v. Peck, 186 Mo. 520. (9) The judgment bears only six per cent interest in any event. Section 3707, Revised Statutes 1899, provides that judgments upon contracts shall bear the same rate as the contract, but other judgments bear six per cent. Robinson v. Colvin, 5 Mo. App. 588; St. Louis v. Allen, 53 Mo. 44; Attorney-General v. Tel. Co., 141 U. S. 35’, Bank v. Woesten, 176 Mo. 49.

      Montgomery S Montgomery, James W. Cosgrove and John Cosgrove for respondent.
    (.1) The term “city roller,” as used in the specifications, received a timely consideration and construction by the city council, the city engineer and all contractors, as meaning the seven-ton roller for the vitrified or top course of brick, and the lighter roller for the local or bottom course of brick; and all bids for the work were based on such understanding and construction. This was well understood by all bidders and parol evidence was admissible to show it. Swift v. St. Louis, 180 Mo. 96; Cole v. Skrainka, 105 Mo. 311; City ex rel. v. Knott, 49' Mo. App. 618; Sedalia ex rel. v. Smith, 206 Mo. 363. (a) “If the facts regarding-such an ordinance, are capable of two different constructions, that which will support the ordinance, will be preferred to the one which will defeat it.” Hamilton’s Law of Special Assessments, sec. 386, p. 337. (b) A substantial compliance of the contract with the ordinance is sufficient; literal compliance is not necessary. 1 Page & Jones, Taxation by Assessment, p. 792,'see. 511; Heman Construction Co. v. Loevy, 179 Mo. 464; Dunn v. McNeeley, 75 Mo. App. 217; Eyerman v. Provenchere, 15 Mo. App. 267; Hurd v. Rackliffe, 192 Mo. 330. (c) The use of the lighter roller on the bottom course' of brick, was found by the trial court, as a matter of fact, to have been of benefit to the property owners; that no prejudice resulted therefrom; that no competition was restricted thereby. Allen v. Labsap, 188 Mo. 702. (d) The designation of the roller to be used, was merely directory, as found by the trial court, (e) Appellant’s counsel has cited numerous cases upholding the necessity of competitive bidding-. These eases, without exception, are cases in which the several bidders were denied the opportunity of bidding on the same basis. The case at bar is radically different in that there was fair competitive bidding on.the same basis to all. (2.) Substantial compliance with the statute in reference to the engineer’s estimate is all that is required. Lamphere v. Chicago, 72 N. E. 426; Hyman v. Chicago, 59 N. E. 10;; Mc-Chensey v. Chicago, 38 N. E. 768; Chicago U. T. Co. v. Chicago, 74 N. E. 450; Zeigler v. Chicago, 72 1ST. E. 720;. Plamilton’s Law of Special Assessments, sec. 464, p. 432; City ex rel. v. Farrell, 106 Mo. 437. Also the sufficiency of the estimate -will be presumed. 2 Page & J ones, Taxation by Assessment, sec. 818, p. 1395; Sedalia ex rel. v. Smith, 206 Mo. 363; City ex rel.. v. Briggs, 58 Mo. App. 245. (3) Under the pleadings, appellants cannot now urge the following points, as no proper foundation was laid therefor in the answer: That the office of city engineer had not been created by ordinance ; that Samuel W. Ravenel was not city engineer; that the engineer’s estimate of the cost of the improvement was sufficient. The pertinent portion of the answer is as follows: “Defendant further avers that no estimate of the cost of the work of paving Fifth street between the points aforesaid and for which said tax-bills were issued was made by the city engineer or any other officer of the city before said council made the above mentioned contract with said Plogan for paving said street. Huling v. Store Co., 27 Mo. App. 359'; Snyder v. Free, 114 Mo. 367; Jaicks v. Merrill, 201 Mo. 109. The answer merely puts in issue the timeliness of the estimate. (4) With reference to de facto officers : Akers v. Kolkmeyer, 97 Mo. App. 528. (5) Estoppel . Jaicks v. Merrill, 201 Mo. 109.
   ROY, C.

This is a suit upon an amended taxbill, dated November 14, 1904, issued by the city of Boon-ville to Thomas Hogan, and by him assigned to the relator. There was judgment for the plaintiff in the trial court, which, on appeal to the Kansas City Court of Appeals, was reversed in an opinion reported in 95 S. W. 314. One of the judges of that court being of the opinion that its decision is contrary to Cole v. Skrainka, 105 Mo. 309, the cause was transferred to this court.

It is based upon a special assessment, made according “to the front foot rule,” against defendant’s lot for its proportionate part of the cost of paving Main or Fifth street in said city with vitrified brick. The original taxbill was issued December 12, 1899. The Central National Bank was erroneously named therein as the owner of the lot, and, on that account, an amended taxbill was subsequently prepared, as stated.

The petition contains averments showing the létting of the contract to Hogan, the completion of the work by him, the issuing of the original and amended taxbills and the assignment to the relator. As no point is made upon the petition, its allegations need not be further stated. The answer admits the execution of the taxbills, -their assignment and the ownership of the lot by the defendants.

The defense relied upon is, in substance, that the-contract made by the city officials with Hogan contained materially different specifications concerning the manner of doing the work, as well as different terms, from those in the' ordinance authorizing the improvement and inviting bids therefor, and that the property owners were thereby, in legal effect, deprived of the benefit of competitive bidding for doing fche work in the manner and upon the terms stated in the contract with Hogan. Also, that no proper estimate of the cost of the improvement was submitted to the council before the contract was entered into; and, further, that the legislative duty devolving upon the council to determine the materials for paving the street was delegated to the street committee and engineer.

Plaintiff, in reply, denied the new matter in the answer.

The city council, on said 20th day of June, 1899, adopted a resolution, declaring it was necessary to pave said street and that inasmuch as there were not sufficient funds in the city treasury to pay therefor, without incurring an indebtedness, the cost of the proposed improvement, after the necessary grading had been done at the expense of the city, should be levied as a special assessment against the lots abutting thereon, and that special taxbills should be issued to the contractor in payment therefor. This resolution was published the requisite length of time.

Plans and specifications were prepared by Captain Samuel W. Ravenel. These specifications, after providing for a bed of sand four inches thick to be laid on the street, further required that on this bed of sand there should be laid one course of local hard brick, and that this course should then be rolled once with the city roller. Provision was made for cm inspection by the superintendent after this course had been thus rolled, and that all ffroken or crushed brick should be removed by the contractor and be replaced by good bricks tamped to their places. Sufficient sand was then required to be placed on this course, so that after filling all the voids and joints, and after the sand had been swept in and manipulated, there should remain a cushion of sand one inch thick and of uniform and even bearing surface. On this cushion of sand the wearing course of vitrified brick was to be placed, and this course, the specifications said, “shall also be rolled with the city roller, and then inspected by the city engineer or the superintendent in charge, and all cracked or broken bricks shall be removed and replaced with new bricks by the contractor. ’ ’

At the time these specifications were prepared, the city of Boonville owned a roller which conld only be operated by horses or mules, and weighed seven tons, and had no other roller at that time.

Captain Samuel W. Bavenel testified that as soon as he had written the specifications it occurred to him that the materials required the use of another roller, and that on the 2nd or 5th of July, he bought a small hand roller from a Mr. Felton, and notified the mayor and members of the council individually thereof, who consented to the purchase, and a resolution authorizing him to make the purchase was passed by the council August 9, 1899.

Notwithstanding the conclusion, after writing the specifications, that another roller would be needed, no change or alteration whatever was made in the written plans and specifications, but, on the contrary, they were filed with the city council in the form in which they were originally drafted, and in that form were adopted by the council by an ordinance passed and approved on the 18th of July, 1899. This ordinance adopted the plans and specifications and directed that the work be done in accordance therewith, and that bids be solicited for that purpose. An advertisement was published, asking for sealed proposals for doing the work. The advertisement stated that the construction and completion of the paving must be performed in accordance with the requirements of the charter and ordinances of the city and the plans and specifications, which were on file for the inspection of bidders at the office of the city clerk. The only plans on file with the city clerk were the ivritten ones requiring each course of brick to be rolled with the “city roller.”

The bids were to be made upon forms furnished by the city. These forms contained this statement:

“I agree to construct said paving in accordance with the plans and specifications therefor on file in the office of the city clerk of said city, and in accordance with the ordinance authorizing* its construction. ’ ’

Captain Ravenel told Mr. Hogan, before the latter’s bid was put in, that he had purchased á small hand .roller from a Mr. Felton, and that the first course of brick would be rolled with it. He gave the same information to Mr. Hurley, another prospective bidder, on the morning of the day on which bids were to be received.

He testified that his reason for telling these men that the small roller would be used was that they might, otherwise, understand from the specifications that they would have to roll both courses with the seven-ton roller.

One witness, Mr. Stammerjohn, stated' that he had prepared a bid, but, upon further consideration, decided not to present it because of the requirement that the seven-ton roller should be used on the first course of local hard brick. There was evidence tending to show that he received verbal information of the fact that two rollers were to be used, and plaintiff contended that he failed to bid because he expected to supply the local hard brick, and not on account of the specifications as to the roller, and the trial court found against the defendants on that issue.

It was shown in evidence that the city roller, weighing seven tons, could only be operated by mules or horses, and that the effect of driving these animals over the first course of local hard brick would be to displace many of them and break some of them into pieces; that while it was not an impossibility to use it, yet it would be more expensive to the contractor to do so, and the work would cost more money and require a higher bid if the seven-ton roller should be used on the first course.

Plurlev and Hogan submitted bids to the council, and that of Hogan was found to be the lowest. He proposed to do the work -with Moberly vitrified brick at $1.45 per square yard, and bis offer was accepted.

After Hogan’s bid was accepted, the contract with him, instead of providing that both courses of brick should be rolled with the seven-ton roller, stipulated that the local hard brick should be rolled with a roller designated by the city engineer, and furnished by the city, and the second or last course, composed of vitrified brick only, should be rolled by the seven-ton roller owned by the city. There was testimony tending to show that it would have been more expensive to the contractor to use the larger roller on the first course of brick and that if he had been required to use the seven-ton roller on the first course, his bid would have been higher.

Plaintiff was permitted to show that the street paved in the manner required by the contract was in as good, or better condition, than if the original specifications had been followed. Defendants objected to this evidence, on the ground that there was a departure in Hogan’s contract from the plans, specifications and terms prescribed by the ordinance under» which bids were invited, and that it was no answer to this objection to say that the street was as well or better paved than if the specifications had been followed.

The only estimate of the cost of the work presented to the council was submitted by Captain Samuel W. Ravenel, who signed the same as city engineer.. He was appointed city engineer in 1896. No ordinance establishing the office of city engineer in the city of Boonville was introduced. Capt. Ravenel was not a resident of the city, and had not resided therein for a number of years. He was employed to do engineering work. He was not paid an annual salary, but received five dollars a day while employed by the city.

The estimate presented to the council by him is as follows:

“Boonville, Mo., July 18, 1899.
“To the Hon. Mayor and Council:
‘ ‘ Gentlemen: — In compliance with my duty as city engineer, I have computed the cost of paving Fifth street, from the middle of High street to the middle of Morgan, from the middle of Morgan to the middle of Spring and from the middle of Spring to the middle of Chestnut street, and find that the work should be done at a cost not to exceed $1.47 per square yard.
‘ ‘ Yery respectfully,
11 Samuel W. Ravenel, City Engineer. ’ ’

It also appeared that vitrified bricks were manufactured at Galesburg, Coffeyville and Moberly, and that they were of different grades and cost different prices in the market. Hogan’s bid was $1.45 per square yard for Moberly brick and $1.52 for Galesburg brick.

The bids put a different price upon the work, depending upon whether Galesburg, Coffeyville or Moberly brick was used. The specifications only stated that vitrified brick of established reputation and acceptable to the committee on streets, alleys, sidewalks and sewers, and to the city engineer should be used, and that a sample should be shown to them before bids should be put m.~

The ordinance, authorizing the work and inviting bids, declared that the total cost of the paving, and also the cost of advertising and superintending the work on the part of the city should be included in an assessment against the lots and pieces of ground, and that special taxbills should be issued to the contractor in payment and satisfaction therefor. The contract with Hogan did not require him to pay the cost of advertising and superintending the work.

The resolution declaring it to be necessary to pave Fifth street with vitrified brick also announced that there were not sufficient funds in the city treasury to pay for the same, and that the contractor must accept taxbills in payment therefor. The ordinance directing the work to be done made the same statement, and the advertisement soliciting proposals to do the work advised prospective bidders that the entire price would be paid in taxbills. After the completion of the work, however, the city council determined to pay, in cash, out of the city treasury, for paving the areas formed by the crossing of streets and alleys, and did in fact pay to the contractor, Hogan, in money, about twenty-five per cent of the total cost of the improvement.

The ordinance of July 18, 1899’, declared that the paving should be paid for by special, assessments against the lots and pieces of ground abutting on said improvement, and taxbills should be issued therefor in the manner provided by the charter and ordinances of the city. There was in force at that time in the city of Boonville an ordinance regulating the interest on taxbills. The section of this ordinance bearing upon that question was introduced in evidence. It declared that such special taxbills should bear interest, after thirty days from the date of issue and presentation, at the rate of eight per cent per annum.

After the completion of the work by Hogan and its acceptance by the city authorities, an ordinance was passed apportioning the cost to the various lots and directing the issue of taxbills against the same. This ordinance provided that the taxbills should draw interest after thirty days from their respective dates at the rate of eight per cent per annum.

Plaintiff offered to prove by the contractor that the original taxbill against the Central National Bank was presented by him to one of the defendants in person and payment thereof demanded, within ten days after the date of said original taxbill, and payment was refused; but the court held that no demand was necessary, under the ordinance, and declined to hear the evidence, so no proof in regard to a demand was introduced by either party.

Defendants, at the conclusion of the testimony, asked the court to sustain a demurrer to the evidence, which was refused.

A declaration of law was also asked by the defendants setting out that the plans and specifications adopted by the ordinance under which bids were invited, provided that the first course of local hard brick should be rolled once with the city roller, and that said ordinance further provided that the cost of advertising and superintending the work on the part of the city should be included in the .taxbills to be issued to the contractor, and that the entire work should be paid for by special assessments against the abutting property; but that the contract entered into with Hogan after the work was let to him provided that the first course of hard brick should be rolled by a roller to be designated by the city engineer and furnished by the city, and that only the last course of vitrified brick should be rolled with the city roller; and that said contract did not require the contractor to pay the cost of superintending the work on the part of the city or the cost of advertising, and to accept taxbills in payment for the same; and if the court should find that the contract was more favorable to and less burdensome upon the contractor, and that the work could be done by him at less expense than under the plans, specifications and .terms prescribed in the ordinance calling for bids for said work, and under which bids were submitted, the taxbill sued on was void and the finding should be for the defendants.

Another declaration of law on the part of the defendants declared that there was no evidence that the taxbill was ever presented to the owner of the property, and plaintiff in no event could recover any interest on said taxbill. The court was further asked to declare that the amended taxbill sued on could not in an3r event bear interest except from the date of its issue, and the fact that a prior taxbill was issued against the Central National Bank would not authorize the court to award interest in this case prior to the date of the taxbill sued on, even if the court .should find said amended taxbill to be valid. The court refused to give any of these .declarations of law.

The court found the issues for the plaintiff and rendered a special judgment against the defendants’ property for the full amount of the amended taxbill, with interest thereon at the rate of eight per cent per annum, from thirty days after the date of the original taxbill.

It is conceded that proceedings to charge abutting property with the cost of street improvements are in invitim, and that substantial compliance with the statute must be shown in order to bind the property. It is also true that the city council cannot make a valid contract for the improvements different in its terms from those contained in the specifications and advertisement for competitive bids.

I. Appellants contend that the provision in the contract for the use of the small roller on the first course of brick invalidated the contract. It is true that at the time the specifications were drawn the city had only one roller, the seven-ton one. But before those specifications were adopted by the city council, to-wit, on July 2 or 5, the city engineer, in pursuance of verbal authority from the mayor and the.members of the city council, bought for the city the small roller. On July 18>, thereafter, the city council adopted the specifications. At that time the city owned two rollers. Either one of them could very well be.called the “city roller.” It is not necessary in this case for the plaintiff to show that the city had legally acquired the title to the small roller. It is sufficient for the purposes of this case, that at the time of the adoption of the specifications the city had' possession of the roller, claiming it as its own. At the time the bids were made, all parties understood that the contract was to be let on the basis that the small roller was to be used on the first course of brick, and the larger one on the last course. It is well established law that in the construction of laws, ordinances and contracts, they are to be construed so as to uphold their validity where their language will permit, as against a construction which will invalidate them. [Wiggins Ferry Co. v. Railroad, 128 Mo. 224; Glover v. Insurance and Security Co., 130 Mo. 173; Sedalia ex rel. v. Smith, 206 Mo. 346 (l. c. 363), and cases cited.]

There is no reason why the same rule should not be applied in the construction of the language of the specifications, which by the terms of the contract were made a part of it. If that language be construed to mean that the first course of brick as well as the second should be rolled with the larger roller, it would invalidate the contract based on those specifications. If it be construed to mean that the small roller should be used on the first course, it would validate that contract. So far as the language of the specifications is concerned, it applies to one roller as well as to the other, for they were both “city rollers” at the time of the adoption of the specifications and at the time of the advertisement.

There is another reason, and perhaps the main one, why the advertisement should be construed to contemplate the use of the smaller roller on the first course of brick. It was the understanding of all parties that the smaller roller was to be so used. It is true that there was evidence both ways as to whether Mr. Stammerjohn so understood it, but the fact was found against appellants by the trial court and is not open for consideration here.

In Cole v. Skrainka, 105 Mo. 303 (l. c. 311), Judge Black in considering this question says: There was no deception or misunderstanding, and the .contract is just what the council intended it should be. In view of all these circumstances, it must be, and is now, held that the contract conforms to the ordinance.”

II. The fact that the city paid about twenty-five per cent of the cost of the improvement, while the ordinance provided that the contract should accept special taxbills for the entire cost, does not invalidate the taxbill. The mere fact that one-fourth of the appellants’ burden is graciously lifted from their shoulders is no reason why the other three-fourths should be thrown upon those who ought not to bear it. [State ex rel. v. Flad, 26 Mo. App. 503.]

III. The estimate made by the city engineer is not a vague and uncertain thing. .Tn the first place the engineer therein says: “In compliance with my duty as city engineer, I have computed the cost of paving Fifth street . . . and find that the work should be done at a cost not to exceed $1.47 per square yard. ’ ’

That language shows that the engineer had “computed the cost.” We will not conclude that after computing that cost, he threw the result of his computation away and fixed a maximum amount having no reference to the result of his computation or to the actual cost. The plain meaning of the language used is that he estimated that it would cost $1.47 per square yard, and that it might cost less, but should not cost more.

In the case of City of Boonville v. Rogers, 125 Mo. App. 142, it is said (l. c. 150): “To merely say that the costs of making a given improvement will not exceed three hundred dollars affords little information to a city council in letting a contract for its construction. It does not amount to an approximation of the cost of construction, only a limit to the cost.” The language of the estimate in this case, as above shown, does far more than merely state that the costs .will not exceed $1.47 per square yard.

To estimate anything is defined to be “the fixing of the worth or value roughly or in a general way, sometimes from imperfect data. ’ ’

We think the estimate was sufficient.

IV. It is claimed that Gapt. Ravenel was not city engineer.; for the reason that no ordinance was shown in evidence creating such office, and that there can be no officer de facto where there is no de jure office. We cannot unqualifiedly agree to that proposition. The statute does not create the office of city engineer. Section 5765, Revised Statutes 1899, gives the mayor power, with the consent of the council, to appoint “a-street commissioner and such other officers as he may be authorized by ordinance to appoint.”

Subdivision 8 of section 5858 required the city engineer or other proper officer to make the estimate. There can be no doubt then that the city council had the power to create the office of city engineer. Capt. Ravenel had acted as such city engineer for the period of eight or ten years. He was recognized as such officer by the city council in the ordinances concerning this improvement. Every one connected with the city government for that long period, and every one concerned in city matters wherein the engineer’s services were necessary, was evidently under the impression not only that there was an office of city engineer, but that Ravenel was such officer.

Now the objection is made that because no ordinance is shown creating such office, the foundation has fallen from under these taxbills. Such a result is a non sequitur.

The case of Adams v. Lindell, 5 Mo. App. 197, adopted and approved by this court on appeal in 72 Mo. 198, was a proceeding on a special taxbill. The court said (l. c. 202): “If the citizen is in no way in fault, if in his dealings he trusts to the non-legal authorities in whom all believe, his rights are not to be destroyed. When he is in fault, the ease is different. But when he himself meets all legal requirements, it is evident that the necessity which creates the rule of validation may exist in precisely the same way and. degree where there is no legal office as where there is merely no legal officer; and it is further evident that to apply the principle to cases where there is no legal office is taking no new or further step.”

That case was followed and approved in Perkins v. Fielding, 119 Mo. 149 (l. c. 159), and Hilgert v. Paving Co., 107 Mo. App. 385.

V. It was declared in the ordinance under which proposals were asked that the taxbills should be issued under and in accordance with the charter and ordinances of the city. A general ordinance was then in force providing for interest upon such special taxbills thirty days after the date of their issue and presentation. The ordinance adopted after the work was completed directed that the taxbills sued on should bear interest thirty days from their date without reference to a demand.

Appellant insists that such provision in the latter ordinance gave the contractor an advantage over other bidders. All the bidders were on equal terms in that respect. Such a provision was not contained in the' contract' with ITogan. That ordinance was passed after the work was done, hence could not have been an inducement to Hogan to make the bid or enter into the contract. Now the law presumes that the residents of a city are aware of the provisions of its ordinances. [Palmyra v. Morton, 25 Mo. l. c. 597.] The special ordinance providing for the issuing of these special taxbills was passed December 11, 1899, and provided they should bear interest after thirty days from their respective dates at eight per cent per annum. The eight per cent was not any part of the compensation for the work. It was interest, compensation for the use of the contractor’s money after it was due and should have been paid. The payment of the taxbill within thirty days from its date would have avoided any interest.

The Kansas City Court of Appeals held in Galbreath v. Newton, 45 Mo. App. l. c. 323, that plaintiff was entitled to interest from the date of the original taxbill. It is true that in St. Joseph ex rel. v. Forsee, 110 Mo. App. l. c. 242, it was held that the use of the word “interest” in the statute then under consideration was a misnomer and that it was a penalty and not interest, and, being a penalty, was not recoverable on an amended taxbill for the period prior to the date of the amended taxbill.

That case cited City of St. Louis v. Allen, 53 Mo. 57; Bank v. Woesten, 176 Mo. 60; Tipton v. Norman, 72 Mo. 380; Eyerman v. Blaksley, 78 Mo. 145. An examination of those cases shows that this court held that there may be a provision for either interest or a penalty, or both in case of non-payment. A penalty, being enforcible only strictissimi jure, would not relate back to the date of the original taxbill. The provision in this case for eight per cent interest from thirty days from the date of the bill is clearly, as stated in .the statute, interest and not a penalty, and no good reason appears for not holding that it relates back to the date of the original bill.

The ordinance under which these taxbills were issued provided that they should bear interest at eight per cent from their respective dates.

The statute authorizes such an ordinance, and we hold that the taxbill bore interest from thirty days after the date of the original bill.

The judgment of the trial court herein is affirmed.

Bond, G., dissents.

PER CURIAM.

The foregoing opinion of Roy, C., is adopted as the opinion of the court.

ON MOTION FOR REHEARING.

PER CURIAM.

Our attention has been called to the fact that the judgment provides that it shall bear eight per cent interest from the date of its rendition, and to Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. l. c. 603, holding that it is error for the judgment to call for more than six per cent interest from its rendition. In that case the judgment was reversed and the cause remanded with direction to enter up judgment as of the date of the original judgment, but at side per cent. In this case the motion for a new trial did not call attention to that point, and there was no motion in arrest, so that the attention of the trial court was not called to it. We will not therefore reverse the judgment, but we modify it here so that it shall bear interest at six per cent per annum from its original rendition until paid.

. With the foregoing modification, the judgment is affirmed.