City of Moberly v. Wight

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 269
• Parties: CITY OF MOBERLY, Appellant, v. W. A. WIGHT, Respondent.
• Court: Missouri Court of Appeals

19 Mo.App. 269

CITY OF MOBERLY, Appellant,

v.W. A. WIGHT, Respondent.

Kansas City Court of Appeals, Missouri.

Nov. 9, 1885.

APPEAL from Moberly Court of Common Pleas. HON. G. H. BURCKHARTT, Judge.

Affirmed.

Statement of case by the court.

This is a proceeding instituted in the recorder's court of the city of Moberly for the purpose of recovering from defendant a fine on account of the violation by him of the following ordinance:

“Section 6. Any person owning any such lots of ground at the time of the issue of the notice provided for in this ordinance, or then occupying such lot or lots as tenants, who shall refuse or neglect to make or put down such sidewalk, or to make such repairs as required as aforesaid, along or in front of such lot or lots of ground, shall be deemed guilty of a misdemeanor, and on conviction thereof shall forfeit and pay a fine of not less than five nor more than fifty dollars, etc.”

From a judgment against him the defendant appealed to the common pleas court. In the latter court this case was dismissed for the reason that the city of Moberly had no power or authority to pass the said ordinance. The plaintiff has appealed to this court.WILLIAM B. SANFORD, for the appellant.

I. The fifteenth clause of section 1, of article III, of the charter of Moberly, expressly empowers the city council to define what shall constitute misdemeanors, and it has done so by the ordinance violated in this case. And there is nothing in it which is inconsistent with or repugnant to the constitution and laws of Missouri. On the contrary, such power is expressly recognized by the statute. Sect. 4881, Rev. Stat.; see also sects. 4856 and 5002.

II. This was not a prosecution for debt, but for a fine or penalty, and by his neglect and refusal the city might have sustained great loss and damage.

III. The remedy mentioned in Section 3, Article IX, of the charter of Moberly, is not exclusive, but additional. It was intended that there should be choice of means. Page v. City of St. Louis, 20 Mo. 142.

IV. A personal judgment cannot be rendered against the owner of real estate for street improvements in front of his property. 66 Mo. 467; 61 Mo. 488; 53 Mo. 44. The remedy of a proceeding in rem, in such a case as this, is impracticable, and the cost of it in many cases would exceed the amount recovered.

V. The corporation is liable in damages for injuries on account of defective sidewalks, and should have power to protect itself by fining delinquents and enforcing obedience to its ordinances.

PORTER & WALLER, for the respondent.

I. The ordinance making it a criminal offence for owner of property to neglect or refuse to put down sidewalks upon notice from the city is void, being unauthorized by its charter. It is settled law, that the power of municipal authorities is exclusively confined to the limits prescribed by the charter, and such ordinances as are passed in conformity thereto. Kiley v. Oppenheimer, 55 Mo. 374; Leach v. Cowgill, 60 Mo. 316.

II. Proceedings to compel the citizen to pay for improvements in front of his property, are proceedings in invitum, purely statutory, and, therefore, to be strictly construed. Leach v. Cowgill, 60 Mo. 316; 53 Mo. 44.

III. The provision of the charter authorizing recovery for expenses of improvements, is a special grant of power, and the power to pass by-laws under this special grant can only be exercised to the extent allowed by the charter. Dillon on Mun. Corp. (3 Ed.) 328, 316, and notes.

IV. In cases of express grant of power to enact by-laws, limited to certain specified cases and for certain purposes, the corporate power of legislation is confined to the objects specified, all others being excluded by implication. Dillon on Mun. Corp. (3 Ed.) 328, 316, note 1; State v. Ferguson, 33 New Hampshire 424.

HALL, J.

Section 3 of Article IX, of the plaintiff's charter provides as follows:

“The city council shall have power to have the streets and alleys opened and repaired, and the footways and sidewalks of the street paved at the expense of the owners and occupiers of the adjacent lots, and if any such owner or occupier fail to open, repair, or pave the same as required by ordinance, the city council shall cause the same to be put down, and may recover the full expense thereof from such owner or occupier by civil action, in the name of the corporation before any court of competent jurisdiction, and if any tenant be...