Town of Tipton v. Norman

• Citation: 72 Mo. 380
• Parties: THE TOWN OF TIPTON v. NORMAN, Appellant.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 380

THE TOWN OF TIPTON

v.NORMAN, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Moniteau Circuit Court.--HON. G. W. MILLER, Judge.

AFFIRMED.

Draffen & Williams for appellant.

G. T. White for respondent.

HENRY, J.

The town of Tipton sued Norman before a justice of the peace to recover $3.75, for his refusal to work on the streets of the said town, after having been notified by the overseer of streets to perform said work, which refusal, under the ordinance of the town, subjected him to the payment of $1.25 for each day that he failed to work, as required by the warning. The cause was tried before a justice of the peace, and, from a judgment in favor of plaintiff, the defendant appealed to the circuit court, in which plaintiff again had judgment for $3.75, from which the defendant has appealed to this court.

By the original charter of the town of Tipton, power was given to the council to appoint an overseer of streets and prescribe his duties and cause all able-bodied men be tween the ages of twenty-one and forty-five, to work on the streets, in such manner as they, by ordinance, might prescribe, not exceeding ten days in each year. This act was approved January 10th, 1860. On the 2nd day of August, 1866, the council passed the ordinance in question, requiring all able-bodied male inhabitants of the town between the ages of twenty-one and forty-five, who had resided in the town one month, to work on the streets, not exceeding ten days in each year, when properly required so to do, and providing that any person notified, failing to work, should forfeit $1.25 for each day, to be recovered by an action before a justice of the peace. Defendant objected to this ordinance, that it was adopted before the council had authority to pass it, and that it was in conflict with the charter. In 1868 the charter was amended so as to authorize the council to require all able-bodied men between the ages of twenty-one and fifty, to work on the streets, and on the 5th day of February, 1872, an ordinance was passed by the council re-ordaining the ordinance passed in 1866, without amendment, and providing that this re-ordaining ordinance should take effect, and be in force, from and after its passage and publication. Defendant objected to this ordinance that it had not been published at the commencement of this suit. The plaintiff read as evidence, from the record of the council, the following order, made 11th day of September, 1876, by the council: “On motion, the town overseer of streets was authorized to notify all males, subject to be called out to work the streets, to be ready to work three days at once.” Defendant's objection to this was, that it was an attempt to do by motion what could only be done by ordinance.

1. MUNICIPAL ORDINANCE: work on streets.

The first point made by appellant is, that the charter of 1868 required all male citizens between the ages of twenty-one and fifty to work on the streets, while the ordinance in question imposed the duty only on those between twenty-one and forty-five; that it “was a tax payable in work, and inasmuch as the ordinance exempted parties who were liable and threw the burden on others, it was void.” He cites, in support of this proposition, 2 Dillon on Munic. Corp., §§ 604, 622. The author does not announce that doctrine, but on the contrary, says, that “the grant in the charter of a city, of the power to require road labor from all male residents between certain ages, is not an infringement of the provision of the State constitution which requires that the mode of levying a tax shall be by valuation so that every person shall pay a tax in proportion to the value of his property.” If the view contended for by appellant be correct, no one of any age, or sex, could be exempted from the duty of working on streets. Neither the amended charter of 1868, nor the original charter, required the council to impose the duty of working the streets on all persons between the ages specified therein, but its effect is to exempt from such labor, persons under and over the specified ages, and leave it to the council to determine the class between these ages, which should perform the labor.

2. ______: what constitutes.

The position that the ordinance requiring the citizens to work, not exceeding ten days, and leaving it to the overseer to say whether it should be one, or nine, thus delegating to him a power to be exercised by the council, is invalid, because an attempt to delegate the power of the council to the overseer, need not be noticed further than to observe that, conceding the position to be correct, the council did, by an order, which was in substance and effect an ordinance, require three days' service of each citizen liable to work, and...