55 Mo. App. 116 | Mo. Ct. App. | 1893
Plaintiff, as contractor with the city of St. Joseph, constructed a second-class sidewalk on Sixteenth street in said city, and in front of five lots owned by defendant Smith. In payment the contractor received five special tax bills; and it was to enforce the same against defendant’s lots this action was brought. The trial court held the ordinance providing for the work, to be invalid, for the alleged reason that it is not therein provided of what materials the walk should be built, etc. From a judgment in defendant’s favor, plaintiff appealed.
The special ordinance providing for the work ordered a second-class sidewalk to be constructed in the manner and of the material named in section 2 of general ordinance number 356. Said section 2 defines second-class sidewalks, and provides with much detail how they shall be built, demanding, among other things, that they shall be constructed of “plank four feet long, not less than six inches wide and two inches thick, sawn from sound pine, white or burr oak timber; shall be laid across and upon two sleepers of sound pine, white or burr oak scantling four inches in size and not
The city of St. Joseph is a city of the second class, and its city council derives its authority for doing such work from section 1404, Revised Statutes 1889, and that portion which is necessary to be here quoted reads: “The common council shall have power to cause to be constructed, reconstructed or otherwise improved and repaired all * * * sidewalks * * * within the city, at such time and to such extent, and of such dimensions, and ivith such materials and in such manner, and under such regulations as shall be provided by ordinance,” etc.
Prom the foregoing statement it will be seen that the ordinance directing the construction of the sidewalk in question is only complete by reference to the section of another general ordinance. Section 2 of such general ordinance becomes then as a part of the special ordinance. The case then stands as if the special ordinance ordering this particular work had directed the sidewalk in question to be constructed of “plank four feet long, not less than six inches wide and two inches thick, sawn from sound pine, white or burr oak lumber, and shall be laid upon and across two sleepers of sound pine, white or burr oak scantling four inches in size,” etc.
Cases may arise where from the face of the ordinance it may appear that the council has abandoned the exercise of its judgment and discretion, and reposed the performance of its duties on another. When an instance-of that kind is presented it will be, doubtless, our-province to condemn it and declare the ordinance void. But we do not regard this as a case of that kind. We think the council, in the matter in hand, did exercise its judgment and discretion, and did not delegate it to-another. We thus remark in answer to the printed.
The judgment was for the wrong party. It will, therefore, be reversed and remanded to the trial court with directions to enter judgment in plaintiff’s favor for the amount of the tax bills, interest and costs.