(dissenting.) — We most respectfully dissent from the opinion of our learned brother Barclay.
The substantial point for adjudication is the validity of the tax bills sued upon. If they were issued for work directed by the city council by its ordinance and the ordinance and contract conform to the charter, then the judgment should be affirmed; if not, in our opinion, it should be reversed.
St. Joseph in 1887 was a city of the second class as defined by our statutes. The statutes governing such cities constituted its charter. The power of the authorites of the city to pave and repair its streets is to be found alone in the said charter as to how the cost of repairing the streets of said city is to be paid.
Section 4786, R. S. 1879, provides: “The cost of repairing and keeping in repair the paving and macadamizing of all streets and avenues shall be paid out of the general revenue of the city.”
It seems to us language could scarcely be inore unequivocal than is to be found in these words. The mind of the lawmaker when drawing that section was directed to the sole question of providing for the ways and means of meeting the necessary expenses of repairing streets and avenues. Already in sections 4781, 4782, 4788, and 4784, with the utmost particularity, the legislature had authorized the common council to cause to be graded, constructed, reconstructed, paved or otherwise improved and repaired, all streets, sidewalks, alleys and public highways within said city and charged the abutting property on both sides of such street with the cost of such grading, constructing and reconstructing and paving and had provided for an assessment of such abutting property and the apportioning of the costs of such improvement and the issu*573ing of tax bills therefor. But such tax bills were to be issued solely for the work done in grading, paving, constructing, reconstructing or macadamizing said street and by a special provision in section 4784 such tax bill was only prima facie evidence of the doing of the ivork, and of the furnishing of the materials charged for and of the liability of the property to the charge stated in the said bill and the right was reserved to the abutting owner to plead “in reduction of the bill any mistake or error in the amount thereof, or that' the ivork therein mentioned was not done in a good and workmanlike manner.” Section 4788 was not, in our opinion, designed to confer any power either to construct or repair but simply marked out the mode of procedure when either grading, constructing or reconstructing, or repairing was proposed. It provided what should be a sufficient petition for such improvements when a petition by other provisions of the charter was required; for its publication and for a hearing before the council of all objections to such improvement.
That section then further provides that if in the ordinance which was essential to authorize such improvement, the common council should recite a finding by them that the work had been petitioned for and that it had been published according to law, such finding should be conclusive for all purposes. It further provided for joining tax bills in one suit and for separate judgments on each and for tax bills on corner lots for sidewalks, curbing and guttering. To our minds this section in no manner conflicted with the plain ‘mandate in section 4786 requiring that “the cost of repairing and keeping in repair the paving and macadamizing of the streets should be paid' out of the general revenue of the city.” It was not a new grant of power. It simply dealt with the matter of procedure for enforcing the previous sections of the charter. Pro*574ceeding, as we do, to consider the tax bills in suit, upon the assumption that the charter places the burden and the whole burden of “repairing and keeping in repair” the streets upon “the general revenue of the city,” and if it does not, still the ordinance in this case nowhere imposes that burden upon the abutting owners, the decisive inquiry is, did not the contract under which the street in question was paved and for which these tax bills were issued put a part,, at least, of the burden upon said abutting lot owners'?
The contract recites on its face that the city let to the paving company the work of paving Sixth street from the north line of Hall to Atchison streets with Trinidad asphaltum, specifying the constituent elements of the proposed pavement, and said company agreed “ to further maintain (said) paved street for a period of five years without cost to the city.” In another clause, uthe said paving company guarantees the pavement constructed under these specifications for five years, agrees to lieep the same in repair during the period of said guarantee and at the end of said five years to turn said pavement over to the city in good order and condition. Also to propose in his said bid, an agreement to keep said pavement in repair for an additional term of five years and turn the same over to the city at the end of such additional term in good order and condition and it is further agreed that whenever any repairs of the streets are made necessary for the construction of sewers, the laying of pipes, or of telegraph wires or from any disturbance of the pavement by parties acting under permits issued by the city, the contractor shall upon notification from the city engineer immediately make all necessary repairs in conformity with the specifications of this class of work. The cost of all such repairs exclusive of trenching and back filling which shall be done by the parties who hold the permits and in the *575same manner as now required by existing ordinances shall be paid at a price not to exceed the original cost per yard of the pavement.”
In another clause said Barber Asphalt Paving Company, party of the first part, expressly guarantees the above work of repaving for the full period of five years after its completion and binds itself \ its heirs and assigns for the entire expense of all repairs which may from any imperfection in said work or materials become necessary,” and if the work at any time within five years after its completion in the judgment of the city engineer needed repairs, he should notify said contractor to make them.
Some question is raised as to the pleadings but we take it that we all concur in holding that the ordinance and the contract under which this claim is asserted are both before the court and to entitle plaintiff to recover from the abutting property holder it must appear that there has been a fair and substantial compliance with the conditions precedent whether prescribed by the charter or the ordinance; Keating v. Kansas City, 84 Mo. 415; Cole v. Skrainka, 105 Mo. 303; Verdin v. St. Louis, 131 Mo. 26; that the authority to charge this lien on defendant’s property must be found in the charter and an ordinance passed in pursuance thereof. This, the answer puts in issue. Now it is conceded by our learned brother that the ordinance makes no mention of repairs and we hold that the charter imposes all repairs “upon the general revenue.” If, then, this contract places the burden of repairs in whole or in part on the property of the abutting owner, it conflicts with the charter and has no support in the ordinance. Does it do so? Our learned brother says it does not because “the adjacent property is not charged with any part of the repairs during the first term of five years, and still less during the second term.”
*576It is this statement which compels our dissent for we hold that when the city authorities stipulated that the Paving Company “should maintain this pavement for a period of five years without cost to the city” it thereby cast upon the abutting owners the cost of that maintenance for five years in the teeth of the charter. It is calling for too much credulity to ask us to believe that any paving company or contractor would assume the burden of maintaining and repairing this pavement for five years without having estimated the cost of so doing and included in his bid the cost of so doing. If so, who pays it? Does not the abutting owner who pays the entire cost, repairs and all, when the city is in terms exempted from that burden?
As said Judge Winslow for the supreme court of Wisconsin in Boyd v. Milwaukee, 3 Am. & Eng. Corp. Cases (N. S.) 652 (March term, 1896): “It will not do to say that these agreements to repair are in effect guaranties of material and workmanship. Such a contention is made here, and an affidavit was introduced showing that the life of such a pavement, if properly laid, was at least ten years, and that it would require no repairs at all for five' years. If the agreements to repair tvere confined to repairs made necessary by defective workmanship or material, the argument would be entitled to serious consideration. But they go further. They cover, in terms, everything that may happen to the pavement, except the cutting through it for the purpose of laying certain pipes. Just how far these agreements might go in case of damage to the pavement from unusual causes, it is not necessary to consider, nor is the question properly here. It is sufficient to say that it is very evident that no one in possession of good business sense will make such a contract without considering and charging for the very extended liability which he assumes of keeping the pavement in repair *577for five years, and thus the property owner is compelled to pay for that which the law charges upon the ward in general.”
In the Verdin case, 131 Mo. 26, the board required the contractors to propose that “the streets should be maintained in good condition for a term of nine years, beginning one year after completion” and it was held that “the obvious intent of that scheme was to put upon the owner of abutting property a portion of the. repairs and the city would not be allowed to shuffle off on the adjacent property owners such expenses”
Our learned brother says that “the agreement to maintain the work free of cost to the city for five years is (so far as this record shows) nothing more than a guaranty that the work shall be of that character.” (To wit, “a sound and durable piece of finished work.”) “It is different, ’ ’ he says, ‘ ‘in principle from an agreement to keep the whole street in repair for a term of years.”
We are unable to perceive the distinction. Certainly it is as objectionable to agree to keep a defined section of a street in repair as the whole street in so far as it affects the abutting owners and the pavement is the street as used in this contract.
We understand from his opinion that he concedes the great weight of authority to be that if the contract binds the contractor to keep the street in repair regardless of the cause of the defect and does not confine his liability to repair to defects arising out of the imperfection of his materials or inferior workmanship, then it imposes a burden on the abutting owners which the law casts upon the city at large. So we are agreed as to the law.
It becomes then a question of fact. Now this contract is identical in terms with the one condemned in the Boyd case. Here, as in that case, the agreement to repair for five years is not restricted or *578confined to repairs made necessary by defective workmanship or material furnished by the contractors but it covers all repairs rendered necessary during that time whether caused by inferior workmanship and defective materials used by the paving company or by the wear and tear of the general traffic over the streets. So that if we read the Boyd case aright, there is no such distinction between the contract in that case and the contract before us in this case.
We agree, “that the distinction is plainly pointed out in the Boyd case,” and it is equally plain to us that this contract falls within the category condemned by that case and not within the supposed case of a contract guaranteeing merely the work and materials of the contractor.
In People ex rel. v. Maher, 56 Hun, 81, the common council passed an ordinance requiring the board of contract and apportionment to require the contractor to agree to keep a pavement of gi’anite block in repair for seven years. The charter provided that the repairing of all streets paved with granite blocks should be a charge upon the city. It was held that such a provision in a contract for laying granite block pavement was u/nauthorised and tended to increase the burdens of abutting owners and the contract was set aside as illegal. That contract also we conceive to be identical in principle with the one before us.
Afterwards in Schenectady v. Union College, 66 Hun, 179, People v. Maher, supra, was before the same court for review and speaking of the provision in the Maher case the court said: “If this contract (that is, Schenectady v. Union College) is subject to the same objection it should share the same fate, if the objection was properly raised in the court below.”
“The referee was not asked to find, and did not find, that this provision in the contract increased the expense *579of the work or enhanced the amount of the assessment. But this question is, I think, fairly here, for adjudication. But I am inclined to concur in the views of the learned referee that this case is substantially different in some of its essential particulars from that of the People v..Maher, supra. In that case there was an express contract to keep in repair for seven years. In this case the clause referred to in the contract had reference solely to the substantial character of the work performed and materials used in the performance of the contract.” So that to us it is obvious that the Schenectady case not only does not overturn the Hall v. Maher case but fully confirms it and merely holds that when the guaranty or contract is limited to the workmanship or materials of the contractor and is not an absolute agreement to repair from whatever cause necessary, it did not violate the charter. The Schenectady case, however, was overruled on another point in 144 N. Y. 241.
In Hall v. Maher it was urged just as here that the agreement was merely a warranty that the pavement would last seven years without repairs and that such a warranty would be a benefit but the court met the suggestion in these words: “But the difficulty arises from the circumstance that the property owners are to pay only for the paving, and the city for subsequent repairs. Anything, therefore, which throws on the property owners more than the burden of having the pavement well constructed in the outset is unjust to them.” And again, “It is the duty of the city to make the repairs. But by this contract they make the property owners liable to pay, not only for the laying of the pavement, but for making repairs for seven years. And every person who was to bid for the contract was obliged to agree to these terms. * * * If, as the contractor *580claims, no repairs will be needed, then there was no need of such a clause.”
Neither in our opinion can this contract be distinguished from that which was ruled upon in Brown v. Jenks by the supreme court of California, 32 Pacific Rep. 701. In that ease as in this neither the law nor the resolution of the council letting the work authorized an agreement to keep the street in repair for five years but the contract included a stipulation that the contractor should give a bond conditioned “for keeping the street so improved in thorough repair for five years from the completion of the contract.” The court held that “the bond was not only unauthorized by the statute but the requirement changes, and may increase the burdens of the property owner.”
“It is manifest,” said the court, “that the obligation to keep the street in repair for five years is a burden which one would not undertake for nothing. Therefore a contractor would charge a higher price for the work when he was forced to contract also for repairs. The expense undertaken is- indefinite; and the property owner must pay for them in advance, whereas the •■statute provides for repairs after the necessity for them appears. Then, it being contingent, he will be paying for repairs which may never be required.”
In that case it was suggested, as it is here, by our learned brother, that “the specifications were a mere guaranty that the work should be well done,” and “would not require repairs for five years” but said the court: “The lot owner can not be made to pay for such a guaranty, which may become worthless before the time has elapsed. Officers are provided and vested with the power, and charged with the duty of seeing the work well done. A bond can not be substituted for the performance of this duty. Besides, it is for all repairs, and not such as may result from defects in the work.”
*581In this case the unequivocal and unqualified agreement “to keep the pavement in repair during the period of the guarantee and at the end of five years to turn it over to the city in good order and condition” is not qualified by the subsequent clause which stipulates and binds the company further for the expense of all repairs which may become necessary from any imperfection in said work or materials.” These covenants are distinct and cumulative and both must be given their full significance and so construing them we think the inevitable result is that it is an indirect effort to saddle upon the individual a burden which the statute intended should be put upon the public which used the street.
Cole v. People, 161 Ill. 16, is cited as sustaining the view that a stipulation in the contract for keeping in repair does not render the ordinance under which it was let void. The court in that case held that in a collateral attach on the ordinance the bond filed with the specifications was no part of the ordinance and while expressing the view that a city might require a guaranty for a specified time as a part of the warranty of the fitness of the material used, the court evidently disposed of the defense on the ground that it was not available under the laws of Illinois in the proceeding for judgment for the tax, and declined to say whether it would have been allowed if presented upon the application for confirmation in the original proceeding. Certainly there is nothing in the opinion which overturns or in our opinion weakens the many well considered cases already cited from other states which hold to the views expressed by the majority of this court in Verdin v. St. Louis, 131 Mo. 26 (33 S. W. Rep. 480). We still adhere to the ruling in that case and consider the effect to cover up repairs under the name of guar*582antee as no less transparent than the plan condemned in the Verdin case.
How much additional the contractor charged for this so-called guaranty and to cover the repairs that might or might not be needed, is as uncertain as it was in Verdin’s case, and the contract falls within the principle decided in that case.
In Fehler v. Gosnell, and Dickson v. Gleason, 35 S. W. Rep. 1125, the Kentucky court of appeals on May 26 of this year construed an ordinance for the improvement of Oak street in Louisville. The 14th section of the ordinance provided: “The contractor shall guaranty the faithful performance of his contract according to this ordinance, and the pavement therein specified and the materials composing the same shall be kept in good repair for the period of five years from the completion of the work and its acceptance by the board of public works; and to protect the city as to the character of said work and material, and such repairs as may be needed, the board of public works to be the judge, the contractor shall deposit bonds of the city of Louisville, or of the United States amounting to ten per cent of the original contract price.”
By Kentucky statute the city at large was liable for repairs of the streets. It was contended there as here that the stipulation for five years’ repairs had the effect to cast the burden on the abutting owners. The court of appeals overruled Gosnell v. City of Louisville, 14 Ky. Law Rep. 719, decided by the superior court and cited by the respondent in their brief, and said: “In this case, the contractor is required, not only to guaranty the faithful performance of his contract according to the ordinance, but that ‘the pavement therein specified and the materials composing the same shall be kept in good repair for the period of five years,’ and further, that, ‘to protect the city as to the *583character of said work and material, and such repairs as may be needed, the board of public works to be the judge, the contractor shall deposit bonds of the city of Louisville or of the United States amounting to 10 per cent of the original contract price of- the entire work, with the city treasurer who shall hold the same * * * to be applied as far as need be in the necessary repairs of said work.’ This provision, in our judgment, not only embraces a guaranty of faithful work, but also a provision for repairs rendered necessary by other causes than defects in the contractor’s work.”
The court also held that the provision as to depositing the bonds caused the bids to be higher than they would have been. That ease is on all fours with this in that it contains both the general and special guarantees.
In McAllister v. Tacoma, 37 Pac. Rep. 447, the supreme court of Washington held in the absence of any provision in the charter for the payment of repairs the presumption would be that the city would pay them, and that the action of the board in making it a condition that the bidder should give a bond guaranteeing the work for five years was unauthorized and the effect of not only making the -abutting property pay for said repairs but to pay for them in advance and accordingly set aside the assessment. To the same effect see, also, Paving Co. v. Leach, 34 Pac. Rep. 116.
In view of the unanimity of judicial opinion that the stipulation for repairs for five years does impose an unlawful burden upon the property owner and in every one of them the language used is almost identical with that employed in this contract and was held by all of said courts except Illinois that such words as “guarantees the pavement constructed under these specifications for five years, agrees to keep the same in repair'during the said period and at the end of said term of five years *584turn said pavement over to the city in good order and condition,” was an Undertaking to repair, regardless ot' the cause of the defects, we can not reconcile the law upon which we are all agreed with the conclusion reached.
Judge Burgess concurs in my construction of the contract and in the views by me expressed.