Carroll v. City of St. Louis

• Decision Date: 12 June 1877
• Citation: 4 Mo.App. 191
• Parties: JOHN CARROLL, Appellant, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

4 Mo.App. 191

JOHN CARROLL, Appellant,

v.CITY OF ST. LOUIS, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1877.

1. Where a city charter provides that the city shall not be liable for work done which is to be paid for by special tax-bill, the fact that the property on which the work was done, and which was described in the tax-bill as a street, has never been condemned or dedicated to public use, which fact renders the tax-bill void, does not give the holder of the tax-bill a right of action against the city for the value of the work, or for damages for not having condemned the property before issuing the bill, though the work be done according to the contract with the city.

2. The doctrine that a city is liable for injuries caused by the negligent manner in which public work is performed by its servants does not apply to cases of defective legislation.

APPEAL from St. Louis Circuit Court.

Affirmed.

W. A. GARESCHE, for appellant: Where the city neglects its duty, or where the whole proceeding by which the tax-bill is issued is void, the city is liable, though the contractor agreed to look to the tax-bill for payment. Soulard v. City of St. Louis, 36 Mo. 546; Kearney v. City of Covington, 1 Metc. 339; Smith v. City of Milwaukee, 18 Wis. 63; Finney v. City of Oshkosh, 18 Wis. 30; City of Chicago v. The People, 48 Ill. 416; Rupert v. City of Baltimore, 23 Md. 184; City of Louisville v. Henderson, 5 Bush, 515.

E. T. FARISH, for respondent, cited: Saxton v. City of St. Joseph, 60 Mo. 156; Dill., sec. 754.BAKEWELL, J., delivered the opinion of the court.

The petition in this case alleges that defendant, prior to June 15, 1874, acting by virtue of an ordinance of defendant, number 8475, employed plaintiff to do certain work upon property of one Plant, in the city of St. Louis, the work being curbing, guttering, and macadamizing; and then agreed with plaintiff, and promised him, to issue to plaintiff a special tax-bill, to become a lien upon the property of Plant described; that plaintiff in good faith executed the work, in a good and workmanlike manner; and that defendant issued to plaintiff a special tax-bill which was not a lien upon said property, but which was void for the reason that the property on which the work was done had never been opened or dedicated for street purposes. Plaintiff asks judgment for the amount of the bill and interest.

Defendant demurred to the petition, on the ground that it did not set forth facts sufficient to constitute a cause of action. The demurrer was sustained; and plaintiff refusing further to plead, there was final judgment on the demurrer, from which plaintiff appeals.

It is provided by section 15, article 8, of the City Charter in existence at the time this work was done (Act of March 4, 1870), that all special tax-bills for work of the description set forth in the petition shall be a lien upon the property charged therewith, to be collected of the owner of the land, and that “the city shall not be liable, in any manner whatever, for or on account of any work done which is to be paid for in the manner provided for in this section;” and section 14 provides that the party receiving such a tax-bill from the comptroller shall give a receipt in full for all claims against the city on account of the work.

We are clearly of opinion that whoever contracts for this kind of work, or deals in tax-bills, under a charter having the provision just recited, is held to see to it that the street on which he does the work is a public street of the city before he expends his time and money on the improvement. It will not do to attempt to hold the city liable, in the face of a provision which notified the contractor that the city was to be liable for the work in no manner whatever. He made the contract under the existing law, and took the risk. We cannot construe...