43 Mo. 353 | Mo. | 1869
Lead Opinion
delivered the opinion of the court.
This was an action brought in the St. Louis Circuit Court to enforce the payment of a special tax bill issued by the St. Louis city engineer under a street-paving contract.
The petition sets forth, in substance, that the defendants are the proprietors of a lot in block No. 11 in St. Louis, fronting on the south upon Olive street, and on the west upon Commercial street. The petition also sets out verbatim the nineteenth section of an ordinance entitled “An ordinance establishing and regulating the engineer department,” approved August 5, 1864. The
The petition then states that the city engineer, acting under the authority of said ordinance, entered into a contract with the plaintiffs to repave Olive street and Commercial street in front of the property of the defendants and others; that the contract was submitted to and approved by the city council on the 14th day of June, 1867; that the work under the contract was done by the plaintiffs, and a special tax bill delivered to the plaintiffs against the defendants by the city engineer, amounting to $613, and that the defendants have refused to pay the same. The petition asks judgment for the said amount, with fifteen per cent, interest, and a special execution against the property chargeable with the lien.
The defendants appeared in the Circuit Court and filed a demurrer to the petition, assigning the following grounds : 1st. That the nineteenth section of the city ordinance set out in the petition was not authorized by the city charter, and was illegal and void. 2d. That the work done by the plaintiffs was done without authority of law or of any valid city ordinance.
The Circuit Court in general term sustained the demurrer, and, the plaintiffs declining to take leave to amend, the court rendered a final judgment for the defendants. The case is now brought into court by writ of error.
The material question arising is whether the nineteenth section of the city ordinance establishing and regulating the engineer department is comformable to the city charter. The act supplementary to the several acts to incorporate the city ofv St. Louis, approved March 5, 1855, and which was in force when the above ordinance was passed, provides, in section-3, that in those cases where'the
The objection made by the demurrer and sustained in the court below was the invalidity of the ordinance under which the work was done; and the reasons given in support of that objection are that the nineteenth section amounted to a delegation to the mayoj of the legislative power of the council, and that consequently all the work of the contractors was done under the authority of the mayor alone, and not under the authority of the council.
The real test of all ordinances passed by an incorporated body is the intention of the Legislature in granting the charter. Corporations cannot make nrdinances contrary to their constitution. Mr. Justice Story says: “ When the corporation itself is pointed out as the proper functionary to execute a discretionary power, the true conclusion is, in the absence of all other provisions, that it must be solely exercised by the corporation at its legal meeting held for that purpose.” (Ex parte Winsor, 3 Story, 411-.)
There is a clear distinction to be observed between legislative and ministerial powers. The former cannot be delegated; the latter may. Legislative power implies judgment and discretion upon the part of those who exercise it, and a special confidence and trust upon the part of those who confer it.
The charter designates and prescribes two conditions upon which streets may be repaved: First, where the city council ■ shall deem it necessary; and secondly, where the owners or a major part of them owning lands or lots fronting on any paved street shall petition for the same. The natural and inevitable conclusion is, that it was the intention of the Legislature, in conferring the power, that the council should act, in determining this subject, in its legislative capacity. Indeed, the language will bear no other construction. I can percei.ve no authority whatever in the charter that would justify the council in referring to another
There is nothing imperative on the mayor; he may act, or not, at his mere pleasure and caprice. It is easy to perceive that such a power might be susceptible of the greatest abuse, and the laAV has wisely Avithheld it.
There being no action taken by the council in which it Avas deemed necessary that the street in question should be repaved, nor any petition presented by the major part of the persons own
It is contended by the counsel for plaintiffs in error that the ordinance may be sustained by virtue of the power given in the act authorizing and empowering the city engineer, under the control of the city council, to repair and keep in repair all streets and alleys in the city of St. Louis, and to this end cause all the necessary work to be done.
But this is evidently not the intention of the statute. The second section of the supplementary act authorizing the city engineer to cause repairing to be done specifies distinctly what work he shall be empowered to do, other than repairing in the first section. The third section, providing for repaving of streets, is a separate and independent section, and can only be made operative by the performance of one of the alternative precedent conditions contained therein. The act most clearly distinguishes between repairing the streets and repaving them; it uses the térms as distinct things, and makes separate provision for them. No special ordinance seems to be provided in case of -repairs. The city engineer is empowered by the statute itself with the duty of seeing that repairs are made, subject to the control of the city council; but repaving is not placed in the same situation.
It is also suggested that because the contract in question was afterward approved by the council, it ought therefore to be held good as done under the authority of the council. But this position is, I think, not tenable. It is certainly not sufficient to impart life or vitality to the contract made by the direction of the mayor, and which was wholly void at its inception. By the charter it appears .that every contract, although made in pursuance of a valid ordinance,’ is required to be submitted to and approved by the council before it is final and complete. This provision is obviously to hold a check and control over the officer making the contract, and to see that it is made conformably to law, but it cannot be made to avail the plaintiffs here.
With this view of the case, I think judgment should be affirmed.
Rehearing
delivered the opinion of the court.
This case was decided at the October term of this court, and, at the urgent solicitation of the counsel for the plaintiffs in error,' a re-hearing was granted. The case has now been re-argued with learning and distinguished ability by the eminent counsel, and I will proceed to state the reasons for the conclusions we have reached. It will be unnecessary to give any further statement than that contained in the previous opinion. The whole question is one of power, and resolves itself into the simple issue whether the common council, in delegating the authority to the mayor, acted within the prescribed sphere of their duties, as limited and defined by the city charter, or whether they transcended their legitimate scope and authority, so that their action was unwarranted and void.
Corporations differ from individuals. They have no powers except such as are expressly granted in the charters, and such as are auxiliary or necessary to the proper exercise of the powers conferred ; and all statutes or charters creating corporations are to be strictly construed. (Blair v. Perpetual Ins. Co., 10 Mo. 559 ; Beatty v. Knowles, 4 Pet. 152 ; Penn. R.R. Co. v. Canal Com., 21 Penn. St. 9 ; The People v. Utica Ins. Co., 15 Johns. 857.) Their charter is the constitution which authorizes them to act; it is in the nature of a grant of powers, and they can exercise such powers and such only as are contained therein. If specific modes and forms are pointed out to govern in their proceedings, such modes and forms must be pursued. In the case of Head et al. v. The Providence Insurance Company, 2 Cranch, 169, Chief Justice Marshall, in speaking of corporate bodies which have only a legal existence, said: “The act of incorporation is to them an
In The Farmers’ Loan and Trust Company v. Carroll (5 Barb. 49), the Supreme Court of New York said: “When a corporation relies upon a grant of power from the Legislature to do an act, it is as much restricted to the mode prescribed by the statute for its exercise as the thing allowed to be done.” Now, the Legislature, in the delegation of power in the city charter, had the undoubted right to impose such restrictions as it saw proper ; and if it deemed it proper and wise to require an act of legislation on the part of the city council in the matter of the repavement of streets, or that they should act in a certain way or on certain conditions, the requirements must be complied with, else the proceedings will be-void. A municipal corporation must conform strictly to the statute giving it power, or its acts will have no vitality. In Thompson v. Schermerhorn (2 Seld. 92), the act of the Legislature “ relative to the city of Schenectady” authorized that city to make “by-laws and ordinances ordering and directing any of the streets to be pitched, leveled, paved, flagged, etc., or for the altering or repairing the same, within such times and in such manner as they may prescribe, under the superintendent.” The common council passed an ordinance by which they directed State street, between certain points, to be “pitched, leveled, and flagged, in such manner as the city superintendent, under the direction of the committee on roads of the common council,' should direct and require.” Here, it will be observed that, instead of the city council prescribing the time and manner, they authorized the work to be done by the city superintendent, under the direction and requirement of the committee on roads of the common council, just as in this case it was ordered to be done by direction of the mayor.. Yet the Court of Appeals held that the ordinance was void, because it did not prescribe the manner in which the street and sidewalks were to be pitched, leveled, paved, and flagged; that the common council were required by the statute to
The power of ordering the streets to be repaved could be exercised only by passing an ordinance when the city council deemed it necessary, or when a petition was presented by the owners, or a major part of those owning lands- or lots in any paved street, requesting it to be done. There is no other mode pointed out by the charter, and the mode here expresses the measure of power. The learned counsel for the plaintiffs in error have attempted to obtain aid in support of the doctrine they contend for by referring to the action of the general government in investing the President with certain powers. But I am unable to perceive any analogy between the cases. In the one case, by every rule of construction, the corporation is confined within the exact limit of its chartered powers ; in the other case the government is invested with the attributes of sovereignty, and always has resorted, and necessarily must resort, to many things lying within the vast domain of implied power.
We adhere to the former opinion given in this case, and. order the judgment to be affirmed.