67 Mo. 491 | Mo. | 1878
— This was an action to recover from the city of St. Joseph the sum of $1059.48, for work done by the plaintiff in macadamizing, curbing, guttering and paving certain portions of Missouri street in said city. The petition set forth the corporate authority, the ordinances authorizing the' work to be done, the contract made in pursuance thereof, the performance of the work, and concludes as follows: “That the defendant and each and every officer thereof thereunto authorized, failed and omitted to assess the cost of said work and materials, so as aforesaid unpaid, against any lot or lots or parcels of ground fronting upon or adjoining the work done, as aforesaid, by the plaintiff, and plaintiff has no lien against any such lot or parcel of ground, or any charge against the owner of any such lot or parcel of ground, for the amount so as aforesaid remaining unpaid or any part thereof, wherefore the plaintiff prays judgment against the defendant,” &c. A demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, was sustained by the court, final judgment for the defendant was rendered thereon, and the plaintiff’ has brought the case here by writ of error. The concluding paragraph of the petition would seem to indicate that this suit was originally prosecuted upon the theory that the work done was properly chargeable to the adjacent property and that by reason of the failure of the officers of the
It was virtually decided in Saxton v. The City of St. Joseph, 60 Mo. 153, that the city could not be held liable for street improvements of the kind involved in the present suit. The question, it is true, was not directly presented in that case, but it was considered by counsel that such was the law, and it was so declared by the court. We have carefully re-examined the various provisions of the city charter on the subject of street improvements, and are convinced of the correctness of our former decision. Art. 5, Sec. 10, of the original charter of the city of St. Joseph, approved February 22d, 1851, provides that the mayor and councilmen of the city, of St. Joseph shall have power, by ordinance, “to open, alter, abolish, widen and extend, establish, grade, pave or otherwise improve and. keep in repair, streets, avenues, lanes, drains and sewers.” Art. 6? Sec. 1, of said charter, provides that “ upon the application of the holders of two-thirds of the front upon any street, or part of a street, it shall be lawful for the mayor and councilmen to levy and collect a special tax on the holders thereof, according to the assessed value of their respective fronts, for the purpose of grading and paving such street, or part of street, which shall be faithfully applied to such purpose and no other.” Sec. 4 of an act entitled “ an act to extend the limits of the city of St. Joseph, and to amend the charter thereof,” approved February 24th, 1853,
The original charter doubtless conferred authority upon the city to make certain improvements of general public utility, which could be paid for out of the general revenue of the city, and some improvements of that character may still be made by the city. The original charter also provided, as did the amendment of 1853, for certain, improvements of restricted and local benefit, which were to be undertaken at the request of the owners of the property, abutting upon the streets proposed to be improved, and were to be paid for by a special tax to be levied by the city upon such owners. But the 4th section of the act of 1865 established a new classification of municipal improvements, embracing parts of both classes previously existing, and provided a new method of compensation; and the 10th section of that act expressly repealed all acts and parts of acts in conflict therewith. The phraseology of the 4th section is general, and its provisions are without exception. It declares that whenever the mayor and council shall order the paving, macadamizing, guttering or curbing of any street, lane, alley or avenue, the cost of the same shall be paid by the owners of the property in the vicinity. The work now sued for comes within the provisions of this section, and the city is not liable therefor, and it is wholly immaterial that neither the ordinance nor the contract specified the manner of payment. That was fixed by the charter, and the plaintiff was bound to take notice thereof. It was the duty of the city engineer to assess the cost of the Avork as a special tax against the adjoining property, and if he neglected such duty, he
The judgment of the circuit court will be affirmed.
Affirmed.