148 Mo. 349 | Mo. | 1899
This is an appeal from a judgment of tbe St. Lonis circuit court sustaining a demurrer to plaintiff’s petition.
Tbe appeal was taken to tbe St. Louis Court of Appeals, where the judgment of tbe circuit court was reversed, but tbe case was certified to this court for tbe reason that one of tbe judges of tbe court of appeals was of tbe opinion that its decision was in conflict with tbe decision of this court in Farrar v. St. Louis, 80 Mo. 392. Tbe petition is set out in full in tbe report of tbe case (Skinker v. Heman, 64 Mo. App. 441), and need not be repeated here.
By tbe charter of tbe city of St. Louis, tbe mayor and assembly have power by ordinance, “to establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves and public grounds and squares, and provide for tbe payment of tbe costs and expenses thereof in tbe manner in this charter prescribed,” etc. [Art. 3, sec. 26, par. 2.]
And by tbe charter it ig further provided “that nothing in this article shall be so construed as to prevent tbe board of public improvements, through the proper officer thereof,from annually letting and entering into contracts on the first day of July of every year, for tbe grading, constructing, reconstructing and repairing all sidewalks and repairing street, alley and gutter paving and such other similar work which may be ordered by ordinance, or may become necesary to be done during tbe year.” [Art. 6, sec. 15.]
And that, “Tbe cost of construction of all tbe foregoing improvements within tbe city shall be apportioned as follows: Tbe grading of new streets, alleys, and tbe making of crosswalks, and tbe repairs of all streets and highways, and cleaning of tbe same, and of all alleys and cross-walks, shall be paid out of tbe general revenue of tbe city; and tbe paving, curbing, guttering, sidewalks, and tbe materials for the roadways, tbe repairs of all alleys and sidewalks, shall be charged
In tbe pursuance of these charter provisions ordinances numbered 16630 and 1343 set out in the petition were duly passed, under the provisions of which the plaintiff was required to have the pavement of the sidewalk in front of his premises, which was out of repair, reconstructed with artificial stone flagging, to do which, however, he refused, and thereupon the city had the work done at the cost of $300. The plaintiff alleges that the defendants, the president of the board of public improvements, and the comptroller of-the city of St. Louis, are about to issue a special tax bill against plaintiff’s said premises, for the amount of said cost, and prays that .they be enjoined from doing so, on the ground that said ordinance numbered 16330 is unreasonable and oppressive.
1. The defendants contended in the court of appeals, as they do here, that as the facts relied on for injunctive relief, could be as effectively urged as a defense to an action on the tax bill, the relief prayed for should be denied, on the ground that plaintiff has an adequate remedy at law. The court of appeals refused to sustain this objection to the petition. While there has been a contrariety of opinion among the members of this court upon this subject, it is one of those rules of procedure the settlement of which is more important than the way of its settlement, and this question having been maturely considered and decided by the court in Banc in the recent case of Verdin v. St. Louis, 131 Mo. 26, and this ruling of the court of appeals being in harmony with the conclusion reached by a majority of the court in that case, we think it ought to be sustained, and hereafter maintained as the settled doctrine of this court on this subject.
2. On the facts of this case as disclosed by the petition we do not deem it necessary to go into any extended discussion of the general question of the power of the courts to
Tbe power given to tbe city by these charter provisions is included within the terms of tbe grant itself, and not such as is merely incidental to its power as a municipality. Tbe general rule in this State is that with tbe exercise of such power tbe courts will not interfere. But when it appears
Such seems to be tbe doctrine in this State, to be deduced from tbe numerous decisions of this court on this subject, when read in tbe light of and with reference to tbe facts in judgment in each case. [Hoffman v. City of St. Louis, 15 Mo. 651; City of St. Louis v. McCoy, 18 Mo. 239; City of St. Louis v. Weber, 44 Mo. 547; McCormack v. Patchin, 53 Mo. 33; Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493; City of Cape Girardeau v. Riley, 72 Mo. 220; Farrar v. City of St. Louis, 80 Mo. 379; Ferrenbach v. Turner, 86 Mo. 416; Kelly v. Meeks, 87 Mo. 396; Estes v. Owen, 90 Mo. 113; State ex rel. v. Schweickardt, 109 Mo. 496; Morse v. City of Westport, 110 Mo. 502; Warren v. Barber Paving Co., 115 Mo. 572; City of Tarkio v. Cook, 120 Mo. 1; Morse v. Westport, 136 Mo. 276; St. Louis v. Heitzeberg Packing Co., 141 Mo. 375.] Anri this seems to be tbe doctrine generally in tbe United States. Dillon on Mun. Corp. (4 Ed.), secs. 319-328, and cases cited in briefs of counsel.
By tbe ordinance in question it was in substance required that whenever, thereafter, a sidewalk located in tbe western district 'of tbe city as defined by metes and bounds therein set out, became out of repair, tbe same should be repaired or replaced by a pavement constructed of artificial stone flagging or such other stone as should be approved by tbe board of public improvements at tbe cost of tbe adjoining property owner, and it appears from tbe allegations of tbe
This is the whole’ scope of the ordinance, and there is nothing in its terms or the subject-matter to which they are to be applied suggesting an oppressive or unreasonable use of the power granted in this instance, and this case being on all fours with the case of Earrar v. St. Louis, and that case being in line with the other decisions cited, ought to be decisive of it. But it is contended that as in the application of this ordinance to the plaintiff’s property in front of which he has a brick pavement confessedly out of repair he would be required to expend $300 for replacing it with a stone pavement as required by the ordinance, when he could, repair it with brick so as to make a very good pavement, at a cost of $7, the ordinance, as to him, is unreasonable and oppressive, and as to him ought to be declared void, and the inf or cement of the tax bills therefor ought to be enjoined, and for support of his contention he relies upon the case of Corrigan v. Gage, 68 Mo. 541, in which the charter power was substantially the same as in the case in hand, and in which we held that an ordinance requiring the “paving of a sidewalk in an uninhabited portion of a city, and totally disconnected with any other street or sidewalk,” was unreasonable and oppressive and refused to sustain it. That ordinance imposed a burden upon the adjoining property owners without any corresponding benefit to them or to the public; was wholly uncalled for by the conditions to which it was to be applied, appeared to be the offspring of mere legislative caprice, and furnishes an apt illustration of that arbitrary abuse of municipal legislative power, for relief against which the power of the courts may be invoked. And while that case and others of those herein cited are authority for the exercise of such power in such a case, they give no support to plaintiff’s contention. The ordinance in question appears to be in all respects a reasonable and proper
In this case, however, the plaintiff’s property is within the reason as well as the terms of a reasonable ordinance and there is no place in it for the application of that principle. The judgment of the circuit court is affirmed, and that of the court of appeals is reversed.
