City of St. Louis ex rel. Murphy v. Clemens

• Decision Date: 31 March 1869
• Citation: 43 Mo. 395
• Parties: CITY OF ST. LOUIS, TO USE OF BERNARD MURPHY, Respondent, v. JAMES CLEMENS, JR., et al., Appellants.
• Court: Missouri Supreme Court

43 Mo. 395

CITY OF ST. LOUIS, TO USE OF BERNARD MURPHY, Respondent,

v.JAMES CLEMENS, JR., et al., Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

This suit was brought on a special tax bill for building a sewer in block No. 1686 of the city of St. Louis. The lot of ground sought to be charged is described as constituting a part of West Camp Spring Sewer District No. 11, as established by city ordinance No. 5875, passed, as alleged, in pursuance of the city charter and an act of the General Assembly approved March 19, 1866.

The petition alleges that Bernard Murphy, under a contract with the city, did the work and furnished the materials, at the cost of $9,798.65; that the proportion chargeable to the lot in question, according to the city engineer's assessment, was $114.21, and for which judgment was prayed.

The defendants, in their answer, deny among other things the legality of ordinance 5875, or that it was passed in accordance with the provisions of the city charter.

The defendants then asked the following, among other instructions, which were refused by the court:

1. The power to establish sewer districts and to construct public sewers in the city of St. Louis is a trust delegated to the city as a municipal corporation, and which said corporation can not delegate to other parties or persons. If, therefore, ordinance No. 5875, purporting to be an ordinance “to establish West Camp Spring Sewer District No. 11, and to provide for the construction of sewers therein,” failed to prescribe the dimensions of the sewers to be built in said district, but left the same to the discretion of the city engineer, said ordinance was illegal and void, and plaintiff cannot recover for work done under the same.

2. The city of St. Louis, as a municipal corporation, must act strictly within the power conferred by its charter; and if, in establishing or constructing the sewer in question, the said corporation, its agents, or servants, failed to conform to the provisions of its charter, or exceeded the power therein conferred, then said defendant is not liable for the construction of said sewer, and the plaintiff cannot recover in this action.

Judgment was found for plaintiff for the amount of tax bill and interest, and the case comes here by appeal.

A. S. Gardner, for appellants.

I. The powers of a corporation are limited by its charter--as much limited and restricted to the mode prescribed by the statute as to the thing allowed to be done. (Brady v. The Mayor of New York, 7 Abb. Pr. R. 234, 244; Farmers' Loan & Trust Co. v. Carroll, 5 Barb. 649.)

II. The power conferred on the city to establish and construct district sewers, with the proviso that the dimensions of the sewers shall be prescribed by ordinance, cannot be delegated to the city engineer or any other person. The city council may designate the officers by whom the work shall be done; but the dimensions and the manner must, under the provisions of the charter, be prescribed by ordinance. (City of Baltimore v. Porter, 18 Md. 284.)

III. The power delegated by the State to the corporation to construct sewers is an important trust, not subject to be delegated by it to any person whomsoever. Nothing short of the most positive language can justify the court in holding that the Legislature intended any such delegation of power. The language of the statute clearly expresses the intention of the Legislature in confining the exercise of this power of constructing sewers, at least so far as the dimensions are concerned, to the common council, the members of which are elected by and are responsible to those whose property they are allowed to tax to pay for same. (Thompson v. Schermerhorn, 2 Seld., N. Y., 92; City of Oakland v. Corporation, 13 Cal. 540.)

IV. The city has no power to construct sewers, except such as is derived from its charter, and it must proceed in accordance therewith. When a grant of power from a State is relied upon (as in this case), that grant must be strictly pursued within the limits of the act conferring the grant of power. (City of Leavenworth v. Rankin, 2 Kansas, 357, 371; Hann. & St. Jo. R.R. v. Marion County, 36 Mo. 294; City of Leavenworth v. Norton, 1 Kansas, 432; 2 Kent's Com. 296-8; City of St. Paul v. Laidler, 2 Minn. 203; Willcock on Municipal Corporations, 12 Law Library, 54.)

V. This is one of those cases in which public improvements are allowed to take private property without the consent of the owner. It is a grant of power to the corporation in derogation of the rights of the citizen, and ought to be strictly construed. The form of the statute was intended to protect private rights from public oppression, and the courts cannot allow any essential departure from this form without jeopardizing those rights--which have no adequate protection except in the courts. (In the matter of Flatbush Avenue v. The City of Brooklyn, 1 Barb. 286; Sharp v. Spier, 4 Hill, 76.)

Thomas S. Grace, for respondent.

I. Four of the instructions asked by the appellants and refused by the court are predicated upon the assumption that by the charter it is made a condition precedent of the power of the council to order the sewer in question to be built by the engineer that the council should itself, by ordinance, first prescribe the dimensions of the sewer. The first duty imposed by the Legislature on the city council is to establish by ordinance the limits and bounds of each sewer district. (Sess. Acts 1866, p. 297.) This is a condition precedent, for the reason that each lot of ground within the district is to be assessed with the cost of constructing the sewer in proportion to the whole area of the whole district; and in order to ascertain what proportion of the cost of the whole sewer should be assessed against each lot of ground, it is essential that the limits and bounds of the district should first be established.

II. But it is not made a condition precedent of the power of the council to cause a district sewer to be built, whether on the petition of the property-holders or of its own motion, that the council should first prescribe the dimensions of the sewer by ordinance; because, if it were, the charter would further require that any change, enlargement, or extension of the sewer which might be required should also be first made by ordinance, and the law does not so require. Ordinance 5875 was not intended as a protection to the property-holders against being assessed for a more expensive sewer than should be absolutely necessary to drain its own district; neither was it for the purpose of having the sewer constructed at the least possible outlay. But it was intended for the purpose of enabling the city to establish an efficient sewer system; and in view of the discretion vested by the charter in the officer having charge of the construction of the sewer to change, enlarge, or extend the same, as might be required, it was competent for the council to give the engineer authority to determine, in the first instance, the dimensions of this particular sewer, to make it serviceable in its particular locality.

III. The words of the statute “may be prescribed by ordinance” import liberty, permission, license. They are not imperative or mandatory on the council; they ought rather to be construed as a reservation of power to the council, to be exercised or not, at its pleasure. (State ex rel. Kyger v. Holt County Court, 39 Mo. 523; Cutter v. Howard, 9 Wis. 311; Wheeler v. Chicago, 24 Ill. 105.) In the case of Doughty v. Hope, 3 Denio, 249, it was held that, although the estimate and assessment for a public improvement in the city of New York, by a just construction of the statute (2 R. L. 407, §§ 175, 176), should be made by the commissioners before the execution of the work, yet the statute is in that respect directory to the corporation, and the omission to pursue it did not invalidate the assessment. (Approved in Wetmore v. Campbell, 2 Sandf. 341; Maurice v. Mayor of New York, 8 N. Y. 120; Laimbeer v. Mayor of New York, 4 Sandf. 109.) It is provided in the seventh section of the charter of the city of New York (statute of 1830, p. 126) that the ayes and noes shall be called and published whenever a vote of the common council shall be taken on any proposed improvement involving a tax or assessment upon the citizens. The language is imperative; the ayes and noes shall be called. Held, that the provision is merely directory. (Striker v. Kelly, 7 Hill, 24.) In the charter of New York city (2 R. L. 1813, p. 407, § 175) it is provided that it shall be lawful for the mayor, aldermen, and commonalty to cause common sewers to be made; to order and direct the pitching and paving of the streets; and to cause estimates of the expense of conforming to such regulations to be made, and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire; and to appoint such skillful persons as they may think proper to make the estimate and assessment. Now, under that act, the mayor, aldermen, and commonalty did not declare what owners or occupants of houses and lots were intended to be benefited; they did not fix the limits of the district to be assessed, but delegated the discretion to the assessors appointed to make the assessment, to determine who the persons were who were benefited, and gave them power to fix the limits of the assessment district. Held, that a confirmation of the report of the assessors was a substantial compliance with the requirement. (Maurice v. Mayor of New York, 8 N. Y., 4 Seld., 120; Laimbeer v. Mayor of New York, 4 Sandf. 109; Wetmore v. Campbell, 2 Sandf. 341.)

IV. It cannot be said in this case that the appellants had a legal right to insist that the council should itself prescribe the dimensions of this particular sewer, nor had they a right de jure to...