Weber v. Johnson

37 Mo. App. 601 | Mo. Ct. App. | 1889

Biggs, J.,

delivered the opinion of the court.

The facts in this case, briefly stated, are as follows: The city of St. Louis by ordinance number 14,584, approved July 9, 1888, authorized the improvement of an alley in city block number 1893. The ordinance was designated as “an ordinance to grade and pave the alley in city block number 1893,” and, as passed, reads as follows: Section 1: “The board of public improvement is hereby authorized and directed to cause the alley in city block numbered 1893, from Montgomery street northwardly as far as open, and between Bacon street and Grand avenue, to be graded and paved.” Section 2: “The grading shall be done in accordance with the directions of the street commissioner.”

The contract for the improvement directed by this ordinance was awarded to the plaintiff; the work was performed according to the contract, and two special tax bills against the lots of the defendant, situated in this block, were issued to the plaintiff by the city, for the cost of a portion of the work done. The defendant refused to pay, and this suit was brought to enforce the collection of the tax bills. There was a judgment for the plaintiff in the circuit court, from which the defendant has appealed.

The defendant’s counsel insists that this judgment cannot be sustained for two reasons: First. Because more than one subject is expressed in the title and body of the ordinance, contrary to the express inhibition of the charter. Second. Before the city could lawfully order the improvement of the alley, the charter required the assembly to fix the elevation of the alley, which in this case was not done, and that this legislative power could not be delegated by the assembly to the street commissioner. These two questions are properly presented by the record for review, and arise out of the admission of evidence and the instructions given and refused.

The defendant’s first objection is predicated on section 13, article 3, of the city charter. This section relates to the passage of ordinances by the assembly, and reads as follows: “No bill * * * shall contain more than one subject, which shall be clearly expressed in its title.” This section of the charter has been the subject of judicial construction by the supreme court in the case of Bergman v. Railroad, 88 Mo. 678. The reasoning of the court, in that case, disposes of the defendant’s objection adversely to him. The court in discussing the question said: “A similar inhibition is contained in the constitutions of 1865 and 1875, and this court has been repeatedly called upon to construe it with reference to the validity of the acts of the legislature, and it has uniformly been held that an act containing a section, relating to matters germane to the general subject expressed in the title, is not obnoxious to such constitutional inhibition, the object of the inhibition being to prevent the practice óf joining in the same bill incongruous subjects having no relatipn or connection with each other, and foreign to the subject embraced in the title; and that a liberal construction should be placed on the constitutional provision, rather than embarrass legislation' by a construction, whose strictness is unnecessary to the accomplishment of the beneficial purpose for which it was adopted.” The ordinance in question provided for the grading and paving of the same alley. The two subjects embraced in the ordinance are certainly not incongruous, as that term is used by the supreme court; but, on the contrary, the relation or connection betwéen the two subjects is so direct that it might very well be said that, taken together, they form but one subject.'

To sustain the second proposition,' the defendant relies on section one (1) and fifteen (15) of article six (6) of the charter. The first section provides that: “The assembly shall, by ordinance, establish a general plan for the location and graduation of the streets,” etc. This section is silent on the subject of alleys. The other section referred to provides: “That no improvement or repairs shall be ordered upon any future street, alley or highway, which shall not have been opened, dedicated or established according to tbe provisions of this charter.”. If the ordinance in question had reference to the improvement of a street, and the elevation of the street had not been previously fixed, and thq power to fix it had been ‘ delegated by the assembly to the street commissioner, then the ordinance would have been invalid under the authority of the case of Thompson v. City of Boonville, 61 Mo. 282. But no such case is presented by this record; section one does not make it the duty of the assembly to fix the elevation of alleys.

We do not think that section fifteen has any reference to the elevation of alleys. This section makes it unlawful for the assembly to improve any street or alley at the expense of the abutting owners, before such street or alley has been “opened, dedicated or established.” The opening or establishing of a street does not necessarily require the determination of its elevation or grade. As we have shown, the charter required the municipal assembly to fix by ordinance the graduation of all streets. This was done with reference to the streets surrounding this alley prior to the passage of the ordinance in controversy. After the grade of the streets had been fixed, the elevation of the alley, necessarily, had to be determined and governed by the grade of the surrounding streets; this involved no discretion or judgment, but merely required the skill of an engineer. This duty, we think, was imposed on the street commissioner by section thirty-five (35), article four (4), of the charter, which makes it the duty of this officer to superintend the construction or reconstruction of all streets and alleys.

Finding no error in the record, the judgment will be affirmed.

All the judges concur.