City of St. Louis ex rel. Murphy v. Clemens

43 Mo. 395 | Mo. | 1869

Wagner, Judge,

delivered the opinion of the court,

This case is brought before us for review on appeal from the St. Louis Circuit Court, wherein judgment was given for respondent. The action was on a special tax bill for building a sewer on the premises of appellants, and the defense set up was that the ordinance under which the sewer was constructed was void, and conferred no authority on the person doing the work. The charter of the city of St. Louis, from which the power for the proceeding is attempted to be derived, says :

“ The city council shall cause sewers to be constructed in each district, whenever a majority of the property-holders resident thereon shall pietition therefor, or whenever the city council may deem such sewer necessary for sanitary or other purposes; and such sewer shall be of such dimensions as may be prescribed by ordinance, and may be changed, enlarged, or extended, and shall have all the necessary laterals, inlets, and other appurtenances which may be required.”

The ordinance authorizing the construction of the sewer provides that “said sewer shall be of such dimensions and of such materials as may be deemed requisite by the city engineer.” The council took no action as to the dimensions of the sewer, but left the whole matter to the discretion of the-engineer. The power was vested in the council for some purpose, we must suppose, and they had no power to delegate it. The council act under a sense of official responsibility, and are chosen on account of their fitness for the trust reposed in them, and their constituents have a right to require them to come up to the full measure of their duties. The law requires them to act not only in view of their direct responsibility to those who elected 'them, but also that they should exercise their united wisdom for the general good of the public. They cannot delegate a duty plainly and expressly devolved upon t]iem to the mere discretion, and perhaps caprice, of a single individual.

The case of Buggies and Bixler v. Collier et dl. is in point, and cannot be distinguished in principle from the present case.

The rule is well settled that corporations are the mere creatures of the law, established for special purposes, and deriving all their powers from the acts creating them. The corporate acts must not only be authorized by the charter, but these acts must be done by such officers or agents and in such manner as the charter directs. (2 Kent’s Com. 360-61, 11th ed.; Ang. & Ames on dorp. §§ 111, 271; Bank of Augusta v. Earle, 13 Pet. 587; Perrine v. Ches. & Del. Canal Company, 9 How. 172; Brady v. The Mayor, etc., 2 Bosw. 173, affirmed in 22 N. Y. 312 ; McSpedon v. The Mayor, etc., 7 Bosw. 601; Bard v Chamberlain, 3 Sandf. Ch. 32 ; Broughton v. Manchester Water Works, 3 Barn. & Ald. 11 — 12 ; McCullough v. Moss, 5 Denio, 566 ; Williams v Lash, 8 Minn. 496 ; School Directors v. Thompson, 5 Minn. 257 ; and authorities cited in opinion in Buggies and Bixler v. Collier et al., ante, p. 353.)

The ordinance conferring the authority on the engineer was not in legal conformity with the charter, and must be disregarded. But it is said that a different doctrine has been held in The City of St. Louis to use, etc., v. Oeters, 36 Mo. 456. The question did arise in that case, but it was disposed of in a single sentence, and it was not maturely considered. I am satisfied that the case should not be regarded as authority on this point; and, so far as it asserts a principle contrary to what is herein laid down, it ought to be overruled.

The judgment will be reversed and the cause remanded.

The other judges concur.