10 Mo. App. 285 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This action is by a contractor upon a special tax-bill issued by the city engineer, for sewer work in St. Louis. On appeal (o the Cir.cuit Court, and trial de novo there, there was judgment for $63.28, the amount claimed. The work was done under ordinances 10,544 and 10,547, authorizing the Board of Public Improvements to cause sewers to be constructed in different portions of the city, and to assess the owners of adjoining lands with their share of the cost of construction, and giving the contractor a right to recover such assessments. There was testimony that the sewers were ordered to be constructed after presentation of a petition to that effect, signed by resident property-holders of the district. Defendants were allowed to introduce evidence tending to prove that the petition was not signed by a majority of the property-owners, when the fact was admitted by plaintiff, and defendant desisted from introducing further evidence on this point. Evidence tending to show that no regular or written estimate of the work to be done was ever made, and submitted by the proper authority, was offered and excluded.
The evidence was that the petition to the Municipal Assembly was sent back for more signatures. Then a report was made that a sufficient number of signatures had been obtained. This report was made, by the sewer commissioner, and is to the effect that the petition to construct this district sewer represents a majority of the resident property-holders, and that the sewer asked for ought to be built. The sewer commissioner was instructed to approve an ordinance establishing the sewer district, and to approve an ordinance for the construction of the sewer. After that, the committee of the council reported the ordinance to the Board of Public Improvements, by whom it was adopted by a majority vote.
How is the question, whether or not a majority of property-holders resident within the sewer district have signed the petition, to be determined? Is the contractor, before proceeding with his work under the ordinance, to decide this question at his peril? If so, he runs a great hazard in undertaking sewer work. The Municipal Assembly seems to be pointed out by the charter as the body to canvass the votes indicated by the signatures to the petition. When it has done this, upon the report of the Board of Public Improvements, or of some committee of its body whose report it adopts, it is insisted that its action upon the petition must be taken to be final and conclusive upon the question, at least in a case where the work has been completed without hindrance on the part of the property-holders, on the
The Board of Public Improvements has it in its power, however, to authorize the passage of the ordinance. If it recommends the work as necessary for any purpose, the assembly, under the charter, must cause the work to be done. The sewer commissioner in this case reports, not only that a majority of the property-holders have signed the petition, but, further, that the sewer asked for ought to be built. He does not say expressly that the work is necessary ; nor does he expressly say that the work ought to be done because the petition is sufficiently signed. Nor, if he did say so, would his statement be a recommendation of the board. The work was, however, recommended by the board ; and whatever be the ground of that recommendation, we think that the recommendation and the subsequent passage of the ordinance must be held to relieve the contractor from any obligation of inquiring as to the ground upon which the work is ordered to be done. The ordinance manifestly was passed either upon a canvass of the vote by those appointed by the Municipal Assembly for that purpose,
We do not deny that the report of the sewer commissioner in this case seems naturally to mean that the sewer ought to be built because the petition is signed by a majority of resident property-holders. But if it could be made to appear that it was not so signed, it must be taken that this fact was known to the Board of Public Improvements before they recommended the passage of the ordinance, and that, in spite of that fact, they recommended the sewer, and recommend it, of course, as, in their judgment, necessary. Any other rule would be a hardship upon the contractor, would tend to enhance the cost of the work, and we do not see that it would serve in any way to protect the property-holder. The board has it in its power to recommend the work, and upon its recommendation the ordinance is to be passed. If we are to conceive the board as regardless of its duty in the matter, it is as easy to certify as necessary a work not necessary, as to certify as sufficient a petition known not to be so.
The judgment is affirmed.