Corrigan v. Gage

Decision Date31 October 1878
Citation68 Mo. 541
PartiesCORRIGAN v. GAGE et al., Appellants.
CourtMissouri Supreme Court

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

Gage & Ladd for appellants.

That the ordinances of a municipal corporation cannot be attacked for an error of judgment, or an apparently unwise exercise of discretion, is true. But, however broad may be the powers of legislation granted to a corporation, however varied the subjects they may affect, or however large the discretion intrusted to it, its ordinances must submit to the test of reasonableness. Whether the question is one for the court or the jury may be doubtful, but in every case where the action or the defense to it is based upon an ordinance or by-law of a corporation, evidence to show its unreasonableness or oppressiveness is material and competent and ought to be heard, and its exclusion is error, otherwise an ordinance might require a sidewalk to be built of gold. Dillon Mun. Corp. (2 Ed.) § 253; Field on Corporations, § 296; Mayor of Hudson v. Thorne, 7 Paige 261; City of St. Louis v. Weber, 44 Mo. 547; Dunham v. Rochester, 5 Cow. 462; Commonwealth v. Robertson, 5 Cush. 438; Kip v. Patterson, 2 Dutch. 298; Clason v. Milwaukee, 30 Wis. 316; Commonwealth v. Worcester, 3 Pick. 462; Commissioners v. Gas Co.,12 Penn. St. 318; Mayor v. Winfield, 8 Hump. 707.

J. C. Tarsney for respondent.

The charter gives to the council legislative power to construct sidewalks whenever in their discretion they are deemed necessary. Their decision as to the expediency or necessity of the exercise of their power is not subject to review by the courts. Hoffman v. City of St. Louis, 15 Mo. 607; McCormack v. Patchen, 53 Mo. 33. The evidence offered was therefore inadmissible.

SHERWOOD, C. J.

Suit on a special tax bill issued by the city engineer of the City of Kansas in favor of plaintiff and against a lot owned by defendants.

The suit was brought before a justice of the peace and by the defendants appealed to the law and equity court. The tax bill was one of many issued to the plaintiff as the contractor for the building of a sidewalk three blocks in length upon one side of a street on which defendants' lot fronted.

The ordinance directing the construction of this sidewalk was approved July 23rd, 1873.

The charter provisions upon the subject, in force at that time, were section 25 of an act of the General Assembly, approved February 28th, 1872, (Sess. Acts, 1872, p. 408,) and section 3 of an act approved March 22nd, 1873, (Sess. Acts 1873, p. 284).

On the trial the plaintiff read in evidence the tax bill sued on, and rested. The defendants then called H. H. Skiles as a witness, who having first testified as to his familiarity with the locality, and otherwise established his competency as witness upon the matters in question, was by the defendants asked to state the location of said walk, the situation and condition of the land in its vicinity; whether the same was improved or occupied, the number of residences or places of business in the neighborhood or vicinity of said walk, fronting thereon, and any other facts within his knowledge as to the necessity or usefulness of said sidewalk.

The plaintiff objected to the question, on the ground that the action of the common council of the City of Kansas in the passage of the ordinance providing for the building of said walk, was conclusive on the defendants, and that the necessity or reasonableness of the ordinance could not be inquired into.

The defendants then stated that their object in asking the question, was to prove, and they then and there offered to prove by the witness, that the sidewalk ran north and south along the east line of Skiles and Western's addition (in which defendants' lot was situated) to the City of Kansas; that none of the lots situated along said sidewalk, and fronting thereon, were fenced or occupied in any way; that on the east side of that part of Liberty Street, facing said walk for the space of one-quarter of a mile east thereof, the ground is and was wholly unfenced and uninhabited; that there is and was one small shanty at the extreme southern end of said walk; that said...

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107 cases
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    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • March 2, 1912
    ...Pacific R. Co., 61 Mo. 24-32, 21 Am.Rep. 397; State v. Fisher, 52 Mo. 174; Thompson, Judge in State v. Addington, 12 Mo.App. 214; Corrigan v. Gage, 68 Mo. 541; Louisville & Co. v. Railroad Commissioners of Tenn. (C.C.) 19 F. 679-689; Ritchie v. People, 155 Ill. 98, 40 N.E. 454, 29 L.R.A. 79......
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    • November 26, 1895
    ...and when those powers are exercised within the bounds of reason and apparent necessity, they should not be held null by the court. Corrigan v. Gage, 68 Mo. 541." In a later case, Macfarlane, J., speaking for the court, observed: "In the performance of duties in which discretion is lodged wi......
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    • June 30, 1900
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