City of Cape Girardeau v. Fougeu

• Decision Date: 24 April 1888
• Citation: 30 Mo.App. 551
• Parties: CITY OF CAPE GIRARDEAU, Plaintiff in Error, v. PAULINE A. FOUGEU, Defendant in Error.
• Court: Missouri Court of Appeals

30 Mo.App. 551

CITY OF CAPE GIRARDEAU, Plaintiff in Error, v. PAULINE A. FOUGEU, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

ERROR to the Cape Girardeau Circuit Court, HON. H. C. O'BRYAN Judge.

Affirmed.

SAM. M. GREEN, for the plaintiff in error: The city of Cape Girardeau derives its power to construct and repair curbstones and sidewalks from the charter granted by the General Assembly of the state of Missouri. Laws of Missouri, 1872, art. 3, secs 6, 41; art. 6, sec. 1; art. 7, sec. 11. The ordinance set out in the petition gives full effect to the charter power above referred to. McCormack v. Patchin, 53 Mo. 33; Neir v. Railroad, 12 Mo.App. 25; 1 Dillon Mun. Corp. [3 Ed.] sec. 328. The legislative will was clearly expressed in the charter, and the ordinance should stand. State v. Clark, 54 Mo. 17, 36. In the ordinance in question, there was no delegation of power by resolution, as contended for by respondent in her demurrer. State ex rel. v. Pond, 93 Mo. 606; Hitchcock v Galveston, 96 U.S. 341; 1 Dillon Mun. Corp. [[[[[[3 Ed.] sec. 96; St. Louis v. Alexander, 23 Mo. 483: Cooley's Const. Lim. [[[3 Ed.] 117; State v. Winkelmeyer, 35 Mo. 103; State ex rel. v. Mayor, 37 Mo. 270; State v. Binder, 38 Mo. 451; Township Organization Act, 55 Mo. 295; State ex rel. v. Wilcox, 45 Mo. 465.

F. E. BURROUGH and R. H. WHITELAW, for the defendant in error: The difference between a resolution and an ordinance is too simple to require any discussion or citation of authorities; suffice it to say that an ordinance is a law, after it has been passed by the council and approved by the mayor, as is provided by sections thirteen, fourteen, fifteen, sixteen, seventeen, and eighteen of article two of the charter. But a resolution is simply a direction, request, or suggestion. Saxton v. Beach, 50 Mo. 488; Saxton v. City of St. Joseph, 60 Mo. 153; Irvin v. Devors, 65 Mo. 625.

OPINION

THOMPSON J.

The city of Cape Girardeau appears to be working under a special charter granted by the legislature in 1872. Act of March 29, 1872; Laws of 1872, pp. 328, 345. By section six of article three of this elaborate statute, it is provided that " the mayor and council shall have power within the city, by ordinance * * * to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve, clean, and keep in repair, streets, avenues, lanes, and alleys, wharves, and public grounds, and squares."

By section forty-one of the same article, the mayor and city council have power within the city, by ordinance, " to remove all obstructions from the sidewalks, and to provide for the construction and repair of all sidewalks and curbstones, and for the cleaning of the same, and of the gutters, at the expense of the owners of the grounds fronting thereon."

By section eleven of article seven of the same statute, it is provided: " The mayor and council of the city of Cape Girardeau shall have power, by ordinance, to require the owner or owners of any lot, or lots, fronting on any street that shall have been curbed and paved, or macadamized, by the authorities of said city, to pave the sidewalks in front of their respective lots at the expense of said owner or owners; and if the said owners shall fail or refuse to comply with said ordinance, then the mayor and city council shall proceed to have the said sidewalks made, and shall have a lien for the costs of the same upon said lots, in front of which they shall have made the sidewalks; and shall have power to recover the same, together with all costs of suit, before any court having competent jurisdiction in cases of debt of like amount, in favor of the city."

With the above statutes in force, the city of Cape Girardeau, according to the recitals of the petition in this case, passed, on the twenty-ninth of April, 1882, the following ordinance, numbered 374, and entitled " Sidewalks and Curbstones. " :

" Section 1. Whenever it shall become necessary in this city to set curbstones and make sidewalks, or to repair the same on any street therein, it shall be the duty of the mayor and council, by resolution, to order curbstones to be set on that portion of the street intended to be improved or repaired; and they shall require the owner or owners of said property to have curbstones set thereon within sixty days thereafter; and it shall be the duty of the marshal immediately to serve certified copies of the said resolution on the owner or owners of the property in the same manner that notices are required to be served by the laws of this state; and in cases of non-residents or unknown owners, said resolution shall be published for three consecutive weeks in some newspaper published in this city. In case of failure or refusal of the owner or owners thereof, said curbing shall be done by the superintendent of the workhouse, under the supervision of the street and wharf committee; and, on the completion thereof, the city register shall apportion the costs thereof against the lots thus improved or repaired which shall be a special tax and a lien thereon; and shall be deemed due and payable within thirty days after the completion thereof. A special tax bill shall be made and delivered to the collector, who shall receive and receipt for and be charged with the same; and shall proceed to collect the same in the same manner as other taxes. Said special tax shall bear the same rate of interest of other taxes.

2. As soon as the curbing on any street shall have been set, if the same shall become necessary, the mayor and council shall by resolution, order the sidewalks in front of any property, where the curbing has been set, to be paved with good and well-burned brick or square dressed stone; and shall require the owners of said property fronting on said street to pave the same within thirty days; and it shall be the duty of the marshal immediately to serve certified copies of said resolution on the owner or owners of the property, in the same manner that notices are required to be served by the laws of the state; and, in case of non-resident or unknown owners, said resolution shall be published in the city of Cape Girardeau for three consecutive weeks; and in case of failure or refusal of the owners to comply with the order contained in said resolution, it shall be the duty of the superintendent of the workhouse, under the supervision of the street and wharf committee, to proceed to pave said...