| Mo. Ct. App. | Dec 7, 1891
Lead Opinion
The petition in this cause was founded on a special tax bill, issued on account of the building of a district sewer. A demurrer to the petition was sustained and plaintiff appeals. That portion of the city charter applicable is as follows : “ District sewers shall be established within the limits of the district prescribed by ordinance, connecting with the public sewer or other district sewer or with the natural course of drainage, as the case may be * * * and said sew'er shall be of such dimensions as may be prescribed by ordinance,” etc. R. S. 1879, sec. 4791, art. 3. That portion of the ordinance sets out in the petition necessary to notice is as follows: Sec. 1. The city engineer is hereby directed to cause a district sewer to be constructed within a portion of sewer district number 14, with all the lateral sewer inlets, manholes, junction pieces and other appurtenances necessary to render such sewer complete and efficient; said sewer being by the common counsel deemed necessary for sanitary and drainage purposes. Said sewer shall be located as follows: Commencing at the manhole at the center of Church and Thirteenth streets, thence north to the center line of the alley running east and west through block 29, St. Joseph Improvement Addition, thence west on the
The following is among the allegations of the peti- • tion : “That thereupon plaintiff entered into contract with the said city of St. Joseph to build said sewer upon the terms of said bid and award,, to-wit: For-twelve-inch sewer pipe, per lineal foot, $1.05 ; for fifteen-inch sewer pipe per lineal foot, $1 ; for each receiving basin complete, including pipe connections, the sum of $42 ; and for each manhole complete, the sum of $40 ; that the sewer so ordered and. bid for connected at the center of Church and Thirteenth streets with a public sewer previously constructed by the city of St. Joseph, which said sewer empties into the Missouri river at the foot of---street in said city ; that, therefore, plaintiff proceeded to do the work aforesaid in accordance with the said ordinances and the said plans and specifications and, in accordance with said contract, and has performed all the conditions thereof; that said work was completed on the---- day of--- 1888.” The objections to the petition are that it discloses a void • ordinance in that it (the ordinance) does not provide that the sewer shall connect with the public sewer, a district sewer, or with the natural course of drainage.
It is unquestionably true that the sewer should so connect, and if the ordinance fails to provide for such connection, it is void. Bayha v. Taylor, 36 Mo. App.
II. • The next objection is, that the ordinance does not specify the material of which the sewer basins and the manholes shall be constructed. The charter does not in terms require that the ordinance shall specify the material, but, notwithstanding this, I appreliend that such is a part of the legislative function of •the city council. This is appai’ent from the nature of :such municipal body and from the powers granted and the duties enjoined upon, it by the charter, “Legislative 'power implies judgment and discretion upon the part of those who exercise it, and special confidence .and trust upon the part of those who confer it.” Ruggies v. Collier, 43 Mo. 353" court="Mo." date_filed="1869-03-15" href="https://app.midpage.ai/document/ruggles-v-collier-8002514?utm_source=webapp" opinion_id="8002514">43 Mo. 353. The power and discretion to •order the building of the sewer is scarcely more important to the public and to the individual taxpayer, than the authority to say of what material it shall be constructed. If the material was not provided for by the ■ordinance it must have been left to the judgment of the •city engineer. As was said in the case cited, in speaking of paving streets, “ It is in effect a power of taxation, which is the exercise of sovereign authority, and ¡nothing but the most plain and explicit language can ¡induce or justify a court in holding that the legislature Intended to confer such exorbitant power on the mere discretion of a single city officer.” Our opinion is that prescribing the material out of which the sewer was to be. constructed was a legislative power, and that it belonged to the discretion of the council. If this be the correct position, it.follows that such power could
III. A difficult part of the question remains to be disposed of. It will be noticed that the material for the sewer proper is prescribed by the ordinance, but the material for the receiving basins and the manhole is not. Is this such a substantial part of the work as will invalidate the proceedings? Judge Bliss says, in Sheehan v. Gleeson, 46 Mo. 100" court="Mo." date_filed="1870-03-15" href="https://app.midpage.ai/document/sheehan-v-gleeson-8002884?utm_source=webapp" opinion_id="8002884">46 Mo. 100, that “An ordinance may lack desirable precision, and still may so provide for the manner in which an improvement shall be made, and be such a compliance with the law, although a loose one, that the courts would not be authorized to invalidate the action of the city officers under it. It is not every irregularity or omission that goes to the substance of a proceeding.” The material of which the receiving basins are to be constructed is left to the discretion of the city engineer. His judgment or caprice is to determine the matter. The receiving basins form such important and material part of the sewer that we deem it to be of the substance of the whole work. But for them, one principal object and function of the sewer would be'of no avail. We, therefore, feel constrained to hold the ordinance invalid and shall affirm the judgment.
Rehearing
ON REHEARING.
T. It will be observed that in the foregoing opinion we held the ordinance providing for the sewer invalid, because of its failure to designate of what material and how the manhole and receiving basins should be constructed. We deem this a proper exercise of the legislative function which the council could not delegate to the city engineer. Plaintiff’s attorneys on this rehearing have urged that we are mistaken, and insist that when the entire petition is
II. Another question here arises ; it is this: Conceding the ordinance to be imperfect and defective in failing to name the materials for the construction of the
We have held now that the city engineer was unauthorized by the terms of the ordinance to let the contract for the construction of the one manhole and three receiving basins, but on the other hand held the ordinance perfect in so far as the sewer proper is concerned. Upon the state of the case here we must admit, too, that the sewer was constructed in full compliance with the contract, and it would seem entirely just that the plaintiff would recover on the tax bills, less the amounts ■charged for the unauthorized work, to-wit, the one manhole and three receiving basins. This right for a partial recovery on a tax bill is fully recognized in matter of bills issued for grading streets, etc., where it is provided, “that nothing in this section shall be so ■construed as to prevent any defendant from pleading, in .reduction of the bill, any mistake or error in the amount thereof, or that the work therein mentioned is not done in a good and workmanlike manner,” etc. This is quoted from section 4783, Revised Statutes, 1879, and ■comes from the body of the same law for the government of cities of the second class where is found the authority for the issue of the tax bill here in suit. It is ■definite recognition of the right of partial recovery on tax bills for grading streets, and, if such a right exists there, why not in case where the tax bills are for' the
It follows, then, that the judgment herein must be reversed, and the cause remanded.