Dalton v. City of Poplar Bluff
| Decision Date | 17 March 1903 |
| Citation | 72 S.W. 1068,173 Mo. 39 |
| Parties | DALTON, Administrator, Appellant, v. CITY OF POPLAR BLUFF |
| Court | Missouri Supreme Court |
Appeal from Madison Circuit Court. -- Hon. Jas. D. Fox, Judge.
Affirmed.
Geo. L Edwards for appellant.
(1) The charter of defendant expressly authorized the defendant by both its legislative body, the mayor and city council, and by its "city council," to make such contracts as sued upon, and they were entered into with I. M. Davidson in strict accord with that authority; and the cost of the improvement contracted for, defendant's charter provided should be paid from an assessment upon all the taxable property within the limits of the city. Secs. 1495 and 1514, Revised Statutes 1889; City to use v. Hoag, 62 Mo.App. 672. "Where a charter commits the decision of a matter to the council, and is silent as to the mode of expressing the decision, it may be evidenced by resolution and need not be in the form of an ordinance." Eichenlaub v. St. Joseph, 113 Mo. 402; State ex rel. v. Milling Co., 156 Mo. 632. See also Municipal Corporation Cases, vol. 5, notes page 520, where the authorities are extensively collected and said to abundantly establish the following proposition: "It is established by an over-whelming weight of authority that where authority is given the council to act in a certain matter without any designation of the form or manner of the action, a resolution is of equal efficacy with an ordinance." (2) The resolutions adopted by the defendant and approved by its mayor were adopted and approved with the same formality and procedure required to enact ordinances, and were therefore sufficient to authorize the contracts sued upon. Cape Girardeau v. Fougeu, 30 Mo.App. 671; City to use v Knott, 49 Mo.App. 612; City to use v. Hoag, supra; Railroad v. The Governor, 23 Mo. 353; St. Louis v. Foster, 52 Mo. 513; Cape Girardeau v. Riley, 52 Mo. 424; Becker v. City of Washington, 94 Mo. 375; State ex rel. v. Mead, 71 Mo. 266; Barber Asphalt Co. v. Hunt, 100 Mo. 22; Hamilton v. Rutherford, 97 Mo. 543; Water Co. v. City of Aurora, 129 Mo. 578; 1 Dillon on Municipal Corporations (4 Ed.), sec. 310, p. 390, and cases cited in note 2; Asphalt Paving Co. v. Ullman, 137 Mo. 568; 1 Dillon on Municipal Corporations (4 Ed.), note 2, p. 389. (3) The contracts have been fully executed and performed on the part of the contractor, and are within the corporate powers of defendant, and from which it, and its citizens whom it represents, have received large benefits, and defendant is estopped to deny their validity because of irregularity in their execution, if any such there be, or because that in their execution the mode pointed out by its charter was not observed. Page v. Board of Education, 59 Mo. 264; 2 Herman on Estoppel and Res Judicata, sec, 1222, pp. 1363 to 1366; Rose v. Baltimore, 51 Md. 256; Chicago v. Wheeler, 25 Ill. 478; Higgins v. Chicago, 18 Ill. 276; Maher v. Chicago, 38 Ill. 266; Martel v. East St. Louis, 94 Ill. 67; Logan Co. v. Lincoln, 81 Ill. 156; Leavenworth v. Laing, 6 Kan. 274; Sleeper v. Bullen, 6 Kan. 300; Bill v. Denver, 29 F. 334; Bank v. Arkansas City, 74 F. 293; Warner v. New Orleans, 87 F. 827; Norwalk Gaslight Co. v. Borough of Norwalk, 63 Conn. 520; Mound City v. Snoddy (Kan.), 35 P. 1112; Tappan v. Imp. and Com. Co., 59 N. J. L. 371; Bigelow on Estoppel (5 Ed.), pp. 466 to 470; National Tube Works Co. v. City of Chamberlain, 37 N.W. 761, 5 Dak. 54; McGuire v. Rapid City (Dak.), 43 N.W. 706; Schipper v. City of Aurora, 121 Ind. 154; Moore v. New York, 73 N.Y. 238; 2 Dillon on Municipal Corporations (4 Ed.), sec. 936, p. 1141; Union Depot Co. v. St. Louis, 76 Mo. 393; St. Louis v. Davidson, 102 Mo. 149; Bigelow on Estoppel (5 Ed.), sec. 685; State ex rel. v. Murphy, 134 Mo. 548; City of Unionville v. Martin, 68 S.W. 605. (4) Plaintiff is entitled to recover upon the contract sued upon, and the measure of his damages is the contract price with interest. Fisher v. St. Louis, 44 Mo. 482; Oster v. City of Jefferson, 57 Mo.App. 485; Steffen v. St. Louis, 135 Mo. 44; Thornton v. City of Clinton, 148 Mo. 648; Hitchcock v. Galveston, 96 U.S. 341; Barber Asphalt Paving Co. v. City of Harrisburg, 64 F. 283, 12 C. C. A. 100; Barber Asphalt Paving Co. v. Denver, 72 F. 336, 19 C. C. A. 139; Maher v. Chicago, 38 Ill. 266; Chicago v. People, 56 Ill. 327; Sleeper v. Bullen, supra; Leavenworth v. Mills, 6 Kan. 288; Bancroft v. Council Bluffs, 63 Iowa 646; Schofield v. Council Bluffs, 68 Iowa 695.
Phillips & Phillips for respondent.
(1) Defendant's charter did not authorize it to enter into the contract sued on. The charter empowers it to make contracts of the character sued on, pursuant to ordinance enacted for that purpose. Section 1495 does not authorize cities of the third class to bind themselves by contracts entered into, pursuant to resolutions. R. S. 1899, sec. 1495; Wheeler v. Poplar Bluff, 149 Mo. 36. In the case of Kolkmeyer v. City of Jefferson, 75 Mo.App. 682, Smith, P. J., speaking for the court, says: "No street in a city of the third class can be graded, nor can payment of the cost thereof be made in either of the ways prescribed by statute, except in pursuance of a lawful ordinance passed for that purpose." R. S. 1899, sec. 1495; Nevada v. Eddy, 123 Mo. 546; Wheeler v. Poplar Bluff, 149 Mo. 36. (2) To point 3 of appellant's brief, we answer, that the respondent is not estopped from denying the validity or regularity of the steps taken by its council and other agents in entering into the contract sued on. Wheeler v. City, 149 Mo. 36. A municipal corporation can only act in the cases and in the mode prescribed by its charter; and for street improvements of a local nature; express contracts authorized by ordinance are necessary to create a liability. The doctrine of implied liability as upon implied contracts has no application to cases of this character. McBrien v. Grand Rapids, 5 Mich. 95; 7 Am. and Eng. Corp. Cases, 573; Wheeler v. City, supra; Kolkmeyer v. City of Jefferson, supra; 15 Am. and Eng. Ency. Law (1 Ed.), p. 1085. Charters of cities of the third class do not authorize them to enter into contracts pursuant to resolutions declaring the work necessary. The doctrine of estoppel is not in this case. Horton not being authorized by ordinance to sign the contract, did not bind the city, but only bound himself, if anybody at all. Chase v. Railroad, 97 N.Y. 384; Keating v. Kansas City, 84 Mo. 419; McDonald v. Mayor, 68 N.Y. 83; Peterson v. Mayor, 17 N.Y. 449; Johnson v. School Dist., 67 Mo. 321; Beach, Pub. Corp., 321. (3) It is a general and undisputed proposition of law, that a municipal corporation possesses and can exercise the following powers, and none others: first, those granted in express words; second those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared object and purpose of the corporation -- not simply convenient, but indispensable. Kansas City v. Swope, 79 Mo. 346; Leach v. Cargill, 60 Mo. 316; Kenley v. Oppenheimer, 55 Mo. 374; Dill. Mun. Corp., sec. 99; Ottawa v. Crary, 108 U.S. 110; City of Eufala v. McNab, 67 Ala. 588; Napp v. Kansas City, 48 Mo.App. 492; Joplin v. Leckie, 78 Mo.App. 12. (a) And any fair, reasonable doubt concerning the existence of the power is resolved by the court against the corporation. St. Louis v. Bell, 96 Mo. 623; Ex parte Mayor, 78 Ala. 419; Dill. Mun. Corp., secs. 90, 91. (b) Neither the corporation nor its officers can do any act, or make any contract, or incur any liability, not within the scope of its charter powers applicable thereto. Any act in excess of such power is void. Kansas City v. Flannigan, 69 Mo. 22; Butler v. Nevin, 88 Ill. 75; Wheeler v. City of Poplar Bluff, 149 Mo. 36. (c) These principles are derived from the nature of corporations, the mode in which they are organized, and in which their affairs must be conducted. Knapp v. Kansas City, 48 Mo.App. 492.
This is an action upon certain contracts entered into by plaintiff's intestate, I. M. Davidson, deceased, and the city of Poplar Bluff, for reducing to grade certain streets of that city by him in pursuance of the provisions of said contract.
The answer admits the incorporation of defendant city, that the resolution of October 17, 1892, was passed and published, but avers that said allegation in the first count of plaintiff's petition touching said resolution wholly fails to state the facts stated in said resolution. The answer also admits the passage of an ordinance on November 21, 1892, as entitled, but avers that plaintiff wholly fails to set forth any of the provisions thereof, and denies that the facts stated touching said ordinance are true, and avers that plaintiff's allegation touching said ordinance does not state the facts thereof, nor any of the facts. It denies that said ordinance gave any power or authority or any direction by force thereof to do any of the acts alleged in plaintiff's petition, or in any way connected with or referred to, or gave to said resolution any force or validity. The answer then avers that Davidson was fully paid for any and all work of any and all kinds he executed for said city.
The case was tried by the court sitting as a jury, who found the issues for the defendant and rendered judgment accordingly. Plaintiff appeals.
The facts are substantially the same as in the case of Wheeler v. City of Poplar Bluff, 149 Mo. 36, 49 S.W 1088, with the exception that in the case at bar, the evidence showed that Davidson had received all the taxbills to which he was entitled under the contracts, had collected thousands of dollars upon them, and that those not collected were sold by plai...
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