Akers v. W. H. Kolkmeyer & Co.

97 Mo. App. 520 | Mo. Ct. App. | 1903

BROADDUS, J.

— The plaintiff’s contention in part is, that the defendant city council by its ordinance, in building the sewer in question, failed to connect it with a main public sewer. That is to say, it was not connected with a main public sewer established according to law. There is no dispute but-what it was connected with a main sewer, but the objection is that such sewer was not established by ordinance and was not therefore a main public sewer. It has been shown that such sewer was built in pursuance of a resolution of the city council and paid for out of the money in the city treasury provided for that purpose by - a vote of the people of said city. It is true that said sewer should have been provided for by ordinance, but the act of the city council, after it was so constructed, in accepting and paying for the same by funds secured for that purpose, constituted it, in law, as much a public sewer as if it had been originally established by ordinance. Foncannon v. Kirksville, 88 Mo. App. 279; Devers v. Howard, 88 Mo. App. 253; Dooley v. Kansas City, 82 Mo. 444; State ex rel. v. Mill Co., 156 Mo. 620; City v. Armstrong, 56 Mo. 298.

But we can not see what difference it would make whether such so-called public sewer was' established by ordinance or not, if prior to the establishment of the district sewer in controversy, it existed as such. For instance,- if it had been constructed as the result of private contributions, and turned over to the city for public use and so accepted, it would have been to all intents and purposes a public sewer. We hold that it was not a matter properly in issue, if it existed as a public sewer, no matter how constructed.

But plaintiff says that the ratification of' the unauthorized acts of the city officers in erecting said sewer was not pleaded as an estoppel, therefore it could not avail defendant. But was the ratification in question a matter of estoppel in the sense as used by the appellant? It is true, the city by such ratification would be precluded from denying that it had waived the necessary requirements for the establishment of said sewer; but it was not an estoppel as such to the plaintiff. The evidence of such'fact was not introduced to show that plaintiff was estopped from denying that said sewer was a public sewer, but as affirmative proof that such sewer was lawful by reason of such subsequent ratification, as much so as if the act had been consummated by ordinance in the first place. In other words, that the sewer was a lawful sewer, which the plaintiff had undertaken to show it was not. It was not the act of plaintiff that was invoked to defeat him, but the act of the legislative council of the defendant which went to establish an important fact in the case. The issue tendered by the plaintiff was that the sewer in question was not a lawful sewer established by ordinance; this, the defendant’s answer denied, and proof was admitted without objection, on the ground that it was not competent because not pleaded as an estoppel, and it is too late to raise the question for the first time in this court. Besides, it has been held, under an allegation that a city liad made a certain contract, that it was competent to prove that the city had ratified such contract made by its officers, «without previous authority. Iron Co. v. St. Louis, 138 Mo. 608; Devers v. Howard, 88 Mo. App. 254. If such be true, the converse is also true, wherein the answer denies that the act was unlawful for want of an ordinance and'authorizes in support of such denial, proof of some ordinance.

It is also contended that E. B. Cauthorn, who had charge as city engineer of the work on the sewer, was not city engineer because he did not take the oath of office and give bond as such, consequently his report upon which .the validity of the proceedings to charge plaintiff upon the special taxbill is sought to be sustained has no legal force whatever. It is true that if he was not lawfully city engineer the taxbill fails because of want of authority in said engineer. But as it appears that said Cauthorn assumed and performed the duties of the office, he therefore became de facto city engineer and his acts are to be treated as if he was de jure such officer. It is well settled that the acts of a ¿le facto officer “are valid so far as they concern the public, or rights of third persons who have an interest in things done. " State v. Dierberger, 90 Mo. 369; State ex rel. v. Badger, 90 Mo. App. 183. This question has been too well settled to justify further comment.

Another contention of the appellant is, that the city council failed to designate by ordinance the size and dimensions of the district sewer in controversy and the material for its construction. The ordinance establishing said sewer fixes its dimensions at eight inches. Prior, however, as the evidence shows, the city by ordinance adopted for its general sewer system the maps, profiles, plans and specifications made by Phillips and then on file, though not marked filed, in the office of the city clerk. And prior to that time the city council had by general ordinance provided that all sewer work, should be done in accordance with such plans and specifications. We think these ordinances were sufficient authority for the manner in which and the material with which said sewer was to be constructed. The fact that the .Phillips maps, plans, etc., were not marked filed, as the plaintiff thinks they ought to have been to give them validity, can make no difference, as such marking only went to the question of identification. It was sufficient if they were filed and identified, which was not disputed. The ordinance providing for the construction of the sewer in question in accordance with the provisions for the main sewer, was legitimate. Becker v. Washington, 94 Mo. 375; Roth v. Hax, 68 Mo. App. 283.

The necessity for the construction of the sewer was also raised by the appellant upon his offer to prove that the health of the inhabitants in the district was good, etc. This question was passed upon in Heman v. Schulte, 166 Mo. 409, in which it was held:

“When a municipal assembly is vested with the power to pass an ordinance for the construction of a sewer, and the creation of a sewer district, and the issuing of special tax 'assessments on the sewer property within the district,, to pay for the same, its acts under that power, in the absence of fraud, are conclusive upon the courts, whether the attack made thereon be collateral or direct. ’ ’ There was no offer to prove that the council in this case acted either fraudulently or corruptly.

The plaintiff made objections to the sufficiency of the said engineer’s report. While it may be somewhat lacking in form and clearness of detail, substantially, it contained sufficient data authorizing the special assessment in question. And the fact that the city clerk did not mark it filed at the time it was filed with him can make no difference. The omission would not have the effect of destroying its validity. Many other objections are made to it which we do not deem of sufficient importance to consider.

Finding no error in the action of the court dismissing plaintiff’s bill, the cause is affirmed.

All concur.