City of St. Joseph v. Anthony

• Decision Date: 31 July 1860
• Citation: 30 Mo. 537
• Parties: CITY OF ST. JOSEPH, Appellant, v. ANTHONY, Respondent.
• Court: Missouri Supreme Court

30 Mo. 537

CITY OF ST. JOSEPH, Appellant,

v.ANTHONY, Respondent.

Supreme Court of Missouri.

July Term, 1860.

1. The general assembly may authorize a municipal corporation to macadamize streets within its limits, and to apportion and charge the cost of such macadamizing on the adjoining lots in proportion to their front.

2. In order to authorize a municipal corporation to recover the amount charged against an adjoining lot on account of the macadamizing of a

street, a substantial compliance with the law must be shown; an observance of all the formalities prescribed by the ordinances of the corporation, which are directory, is not required. If the work has been done and in a manner satisfactory to the officer entrusted with its supervision, and has been received by the corporation and paid for, a prima facie case is made out. The defendant may show that there has been a neglect of duty on the part of the authorities entrusted with the execution of the work, and if this neglect or omission has injured him, such facts may constitute a defence.

Appeal from Buchanan Court of Common Pleas.

This was an action to recover one hundred and twenty-eight dollars and seven cents, the amount apportioned to the defendant as his share of the cost of macadamizing the street in front of his lot in the city of St. Joseph. The petition alleges the incorporation of plaintiff by the charter granted February 22, 1851; sets forth the amendment of the charter approved November 21, 1857, empowering it to macadamize the streets and directing that the cost thereof should be borne by the owners of the adjoining property, and apportioned and charged on the adjoining lots in proportion to their front in manner to be prescribed by ordinance.^a1 The petition set forth ordinances of the city passed under this amendment of the charter; that the city council ordered the macadamizing of the street in front of the defendant's lot; that the city engineer proceeded to let to contract said macadamizing agreeably to ordinance; that the street in front of defendant's property was macadamized; that the city engineer, under the authority of the charter and the ordinances of the city, apportioned and charged for such macadamizing to the defendant the sum of one hundred and twenty-eight dollars and seven cents; that this sum was apportioned in proportion to the front feet of the lot owned by him; that the city collector made demand of payment.

The defendant set up the unconstitutionality of the amendment to the charter, and put in issue the alleged compliance with the requirements of the ordinances of the city. At the trial the court excluded the said amendment to the charter on the ground that it was unconstitutional. The court also excluded the ordinances of the city passed under said amendment. The plaintiff thereupon took a nonsuit, with leave, &c.

Hall, for appellant.

I. The amendment to the charter authorizing the city to macadamize streets at the expense of adjoining property owners, and to apportion that expense according to the front feet of the adjoining property, is constitutional. (Inhabitants of Palmyra v. Morton, 25 Mo. 594; Egyptian Levee Co. v. Hardin, 27 Mo. 495.) The court erred in refusing to admit evidence of the contents of the lost advertisement. Under the law the plaintiff had the right to have the streets macadamized and to make the adjoining owners of lots pay for the same. If the work were done in such way that the city was liable therefor, then it matters not whether it was let out to contract or not, nor whether it was done according to contract or not, still the city has the right to collect the money to pay for the work from the adjoining property owners. It is true, the law authorizes the city to do said work in such manner as the city ordinances prescribe, and the city ordinances require said work to be let out to contract. But the city ordinances also require such work to be done under the supervision of her engineer, and if that officer accepts the work so as to bind the city, then the work has been done according to law, although the city engineer may not have strictly performed his duties. The only question is, has the work been done so as to make the city liable to pay for it? If it has been so done, then the adjoining property owners must furnish the means of payment.

Gardenhire, for respondent.

I. The act of November 21, 1857, amending the charter of the city of St. Joseph is unconstitutional. It applies private property to public use without just compensation; authorizes property subject to taxation to be taxed, not in proportion to its value, but by the front foot, irrespective of value; and in effect substitutes the will of a municipal corporation for that of the real estate owner in improving his own private property. It is not within the case of Lockwood v. City of St. Louis, 24 Mo. 20, because the tax in that case was levied upon the application of a majority of the owners of real estate in the district to be drained, and was limited to one-half of one per cent. on the assessed value of the real estate; nor the case of the Inhabitants of Palmyra v. Morton, 25 Mo. 593, because but one of the objections mentioned was decided in that case--namely, that to make the owners of lots adjacent to a street pay for its improvement was no violation of the constitution, leaving the mode of distributing the tax among the owners, whether in proportion to value or by the front foot, untouched; nor ...