Keating v. City of Kansas

Decision Date31 October 1884
Citation84 Mo. 415
PartiesKEATING, Appellant, v. THE CITY OF KANSAS.
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court.

AFFIRMED.

J. Brumback and Gardiner Lathrop for appellant.

(1) Plaintiff was entitled to recover on the ground that the city was negligent in the preparation and passage of what was supposed to be ordinance number 8449, by which the grade of Bell street was attempted to be re-established and in accordance with which grade the engineer prepared plans and specifications and directed the actual doing of the work. Dillon on Mun. Corp. (3d Ed.) p. 475 ; Kearney v. Covington, 1 Metc. (Ky.) 339; Chicago v. People, 56 Ill. 327; Cronan v. Municipality, 5 La. Ann. 537; Maher v. Chicago, 38 Ill. 266; Fisher v. St. Louis, 44 Mo. 482; Beard v. Brooklyn, 31 Barb. 142; Cunningham v. Mayor, 11 Paige 596. (2) Plaintiff was entitled to recover by reason of the wrongful acts of the city engineer in preparing plans and specifications and directing the doing of the work in accordance with the provisions of an invalid ordinance. Authorities supra. (3) Plaintiff is entitled to recover by reason of the action of the common council of the city in preventing his completing the work in accordance with the grade of Bell street as fixed by the ordinance numbered 5205, by passing an ordinance fixing the grade of Bell street at the very elevations to which it had been brought by plaintiff. (4) The City of Kansas can pay for public work either in money or in special tax-bills against property deemed benefited by the doing of any such work. (5) Ubi jus ibi remedium.

Wash Adams, city counselor, and R. H. Field for respondent.

(1) For the non-exercise or defective exercise of legislative power a municipal corporation is not liable to anyone injured thereby. Dillon on Mun. Corp., sec. 949; Saxton v. St. Joseph, 60 Mo. 153; Carroll v. St. Louis, 4 Mo. App. 191. (2) Keating cannot plead his ignorance of a defective ordinance even as against the city as he was bound to take notice of it in dealing and contracting with defendant's officers. Dillon on Mun. Corp., sec. 447. Mayor, etc., v. Reynolds, 20 Md. 1. (3) The provision of the charter alone warranted the court in sustaining a demurrer to the evidence. Saxton v. St. Joseph, 60 Mo. 153; Carroll v. St. Louis, 4 Mo. App. 191; Goodrich v. Detroit, 12 Mich. 279; Bank v. Lansing, 25 Mich. 207. (4) The contract plead expressly exempts the city from any liability for or on account of the alleged grading. Such provision of the contract precludes recovery. Creight v. Toledo, 18 Ohio St. 447; Pettis Co. v. Kingsbury, 17 Mo. 479; Mayor, etc., v. Eschbach, 18 Md. 276; Leavenworth v. Rankin, 2 Kan. 357. (5) Damnum absque injuria is a maxim more applicable to the complaint of appellant than that of ubi jus ibi remedium.

SHERWOOD, J.

Keating sued the city to recover the sum of $4,062.66 for certain street grading done by him under a defective ordinance. He had a contract with the city to do the work which expressly provided that the passage of the ordinance, number 14,495, and the doing of said work without any petition or any proper petition therefor, or entire failure or failures properly on the part of real estate owners theretofore or thereafter, to petition the common council to have said work done or improvements made, shall not render the city liable to pay directly or indirectly for such work or any part thereof, otherwise than by the issue of special tax-bills; and said Keating shall assume all risks as to the validity or invalidity of such special tax-bills, and take the same without recourse against the City of Kansas in any event. And the charter of the city provides: Section 1. The common council shall have power to cause to be graded, constructed, reconstructed, paved, or otherwise improved and repaired, all streets, sidewalks, alleys, and public highways or parts thereof, within the city, at such time and to such extent, and of such dimensions and with such materials, and in such manner and under such regulations as shall be provided by ordinance; and all ordinances and contracts for such work shall specify how the work shall be paid for; and in case payment is to be made in special tax-bills, the city shall in no event or in any manner whatever be liable for or on account of the work.” The ordinance, 8449, referred to in the briefs of counsel, was held defective by this court in Keating v. Skiles, 72 Mo. 97. In consequence of this holding, Keating failed to recover anything for this work, except what was voluntarily paid him by a few of the property owners.

I. It is a well settled law, that for the non-exercise or the defective...

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