Heman v. Flad

• Decision Date: 14 March 1892
• Parties: HEMAN v. FLAD et al.
• Court: Missouri Supreme Court

18 S.W. 1128

108 Mo. 614

HEMAN v. FLAD et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1892.

MANDAMUS TO MUNICIPAL BOARD — ALLOWANCE OF CLAIMS.

Act March 31, 1887, § 1, empowers the board of public improvements of a city "to examine

and allow the claim of any person against such city, for materials furnished and labor done for any public work, improvement, or repairs for such city, in pursuance of a contract with such city;" section 5 provides that, if such board fail or refuse to pass on any such claim within a reasonable time after the presentation thereof, it "may be compelled, by writ of mandamus, to perform such duty," by the circuit court of that district. Held, where a claim was presented to the board, and was examined by it, and part of it allowed, that the circuit court had no power to review such action by mandamus, their jurisdiction being confined to cases where the board refused to act.

Application by August Heman against Henry Flad and others for a writ of mandamus. Writ denied, and relator appeals. Affirmed.

T. J. Rowe, for appellant. W. C. Marshall, for respondents.

BRACE, J.

This is an appeal from the judgment of the St. Louis circuit court sustaining a demurrer to the alternative writ of mandamus issued herein, and refusing the peremptory writ prayed for. The defendants are the board of public improvements of the city of St. Louis. It appears from the alternative writ that, by ordinance 13,237, approved March 21, 1885, the Brooklyn street sewer district No. 1 was established, and by ordinance 13,238 the board of public improvements was directed to cause district sewers to be constructed therein; that on the 24th of April, 1885, relator entered into a contract with the city to do said work; that the work was done and completed, and the relator received special tax-bills therefor, on or about November 23, 1885, in the manner provided for the payment of such work by section 2 of said ordinance 13,238, and in accordance with section 24 of article 6 of the charter of the city of St. Louis, which particularly prescribe that, after the tax-bills for such work have been made out by the president of the board of public improvements, and by him registered in his office in full, they shall be certified and delivered to the comptroller, and his receipt taken therefor, and by him registered and countersigned, and delivered to the party in whose favor they are issued, "and his receipt taken in full for all claims against the city on account of said work." Relator failed to collect such tax-bills under a decision of the St. Louis court of appeals, on the ground that they were invalid because the district sewers connected with a private sewer, and not with a public sewer. 26 Mo. App. 500. Thereafter, on the 31st of March, 1887, the legislature passed an act to authorize the board of public improvements of any city in this state to audit and allow claims against such city for work done and materials furnished on any street or highway under a contract with such city, and directing said board not to be influenced or governed by any technical error committed by the law-making power, agent, or officer of such city, but to allow and certify such claims as such board determined were just and equitable. This act will be found on pages 32, 33, Sess. Acts 1887, and an act amendatory thereof on page 29, Sess. Acts 1889. Thereafter, about the 6th of March, 1888, relator presented a petition to the board of public improvements, asking such board to audit and allow against the city a claim for $3,226.60, the amount of such tax-bills adjudged invalid by the court of appeals. The board of public improvements considered such claim, and allowed $1,242.93 thereof, and refused to allow $1,721.75, the amount of three tax-bills issued against Frederick Heman, on the ground that the board believed that the relator, August Heman, was interested in the property against which such special tax-bills were issued, and which property had received the full benefit of the work done. Thereupon relator instituted this proceeding by mandamus. Defendants interposed a demurrer to the alternative writ of mandamus, alleging the following grounds: First, the plaintiff is not, under the allegations contained in said writ, entitled to relief by mandamus, nor to any relief in the premises; second, the alternative writ does not state facts sufficient to constitute a cause of action; third, the acts of the legislature approved March 31, 1887, and May 11, 1889, referred to in said writ, are each and both of them invalid and unconstitutional.

The provisions of...