Edwards v. City of Kirkwood

• Decision Date: 05 April 1910
• Parties: EDWARDS v. CITY OF KIRKWOOD et al.
• Court: Missouri Court of Appeals

127 S.W. 378

147 Mo. App. 599

EDWARDS v. CITY OF KIRKWOOD et al.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

Rehearing Denied April 19, 1910.

1. MUNICIPAL CORPORATIONS (§ 214)—POWER TO CONTRACT.

Const. art. 4, § 48, forbids the General Assembly to grant or to authorize any municipal authority to pay, or authorize the payment of, any claim hereafter created against the city or any county or municipality of the state under any agreement made without express authority of law. Rev. St. 1899, § 5907, as amended by Laws 1903, p. 81 (Ann. St. 1906, p. 2993), provides that the mayor and board of aldermen of a city of the fourth class may by ordinance employ special counsel to represent the city either in a case of vacancy in the office of city attorney or to assist the city attorney, and pay reasonable compensation therefor. Held, that an ordinance directing the city collector to employ counsel is an invalid delegation of the power of the mayor and city council, but that, if the ordinance had directed the collector to employ a person named as counsel on terms specified, the contract thereafter made by the collector with the person would have been valid, as a municipality may delegate to an agent the execution of a mere ministerial act, unless expressly forbidden.

2. MUNICIPAL CORPORATIONS (§ 220) — ACTIONS — PETITION.

Where a municipality is sued on a contract for legal services which its officers had power to make, provided there was a vacancy in the office of the city attorney, or where the attorney was employed to assist such city attorney, the petition is not insufficient for failure to allege the existence of the vacancy or that plaintiff was employed to assist the city attorney, as, where nothing appears to the contrary, the law will presume that the city officers exercised their authority properly even in cases of municipalities of limited authority.

3. MUNICIPAL CORPORATIONS (§ 62)—DELEGATION OF POWER.

While a municipality may delegate to an agent a mere ministerial act, unless expressly forbidden, yet discretion conferred upon one class of city officers by positive legislative direction may not be transferred or delegated to others.

4. ESTOPPEL (§ 62)—EQUITABLE ESTOPPEL AGAINST MUNICIPAL CORPORATIONS.

Where a municipal corporation had authority to engage special counsel by its mayor and common council, and an ordinance was passed authorizing the city collector to engage counsel, which was void as an unauthorized delegation of the power of the mayor and common council, and plaintiff was engaged by the city collector in accordance with the directions of the ordinance and performed the services for which he was engaged, and the city received and retained the benefit thereof, plaintiff may enforce compensation for his services, as the doctrine that equitable estoppel may not be invoked as to municipalities is true only where the municipalities have acted wholly beyond their powers of contracting, and not where the contract is within the express powers conferred, but invalid because of the way in which it is executed.

5. MUNICIPAL CORPORATIONS (§ 170)—PERSONAL LIABILITY OF OFFICERS.

Where a city collector acting under the direction of an ordinance engages special counsel for the city, and the contract with the special counsel is invalid because the ordinance delegated to the city collector the power to engage special counsel which by statute was vested in the mayor and common council, the city collector is not liable to the attorney engaged, as municipal officers act for their principal, and not for themselves unless the contrary appears, and they incur no personal obligation except where by appropriate language a clear intention is shown for them to assume such obligation, and every person contracting with a public officer must ascertain at his peril the scope of the officer's authority.

Appeal from St. Louis Circuit Court.

Action by George L. Edwards against the City of Kirkwood and R. Pagenstecher. A demurrer was sustained to the petition, and plaintiff appeals. Reversed as to the city, and sustained as to defendant Pagenstecher.

This is a suit on an express contract for attorney's fees. The court sustained a demurrer to the petition, and plaintiff appeals.

Omitting formal parts, the petition is as follows:

"Now comes the plaintiff, and, by leave of court first had and obtained, files this, his amended petition, and says:

"Plaintiff states that the defendant the City of Kirkwood is now, and was at all the times hereinafter mentioned, a city of the fourth class, duly organized under the laws of the state of Missouri, providing for the organization of cities of said class; that the defendant Rudolph Pagenstecher is now, and was at all the times hereinafter mentioned, city collector for said city.

"For cause of action, plaintiff states: That on or about the 20th day of February, A. D. 1905, the board of aldermen of the city of Kirkwood duly passed, and the mayor thereof approved, a certain ordinance, being numbered 302 and entitled `An ordinance creating and defining the courses and providing for the construction of public sewers in the city of Kirkwood,' and whereby it was declared to be necessary for sanitary purposes that public sewers be established and constructed in said city and whereby the same were established, the courses, routes, and dimensions set forth and the manner and method of constructing the same also set forth, as well as the manner and method of paying for the same, a copy of which said ordinance is herewith filed and referred to for greater certainty as to the terms and provisions thereof, and marked `Exhibit A.' That on the ____ day of ____, A. D. 1905, in pursuance to the provisions of the above-mentioned ordinance, the defendant the city of Kirkwood made and entered into a contract with Thomas J. Byrne for the construction of the public sewers by said ordinance established, and whereby said Thomas J. Byrne contracted and agreed to build and construct for said city the public sewers created and established by said ordinance, in pursuance to the terms and provisions of said ordinance, and whereby said city agreed to pay said Thomas J. Byrne therefor the sum of $____, payable monthly, as said work progressed, as provided in said contract, a copy of which is herewith filed and referred to for greater certainty as to its terms and provisions, and marked `Exhibit B.' That thereafter, for the purpose of providing a fund and the money with which to pay for the construction of said public sewers, and on or about the 1st day of May, A. D. 1905, the board of aldermen of the city of Kirkwood duly passed, and the mayor thereof approved, a certain ordinance, being numbered 318, and entitled `An ordinance levying a special sewer tax to provide a fund for the building of public sewers in the city of Kirkwood,' and whereby a tax equaling the sum of thirty-four thousand three hundred dollars ($34,300.00) was levied upon all the property made taxable for state purposes over the whole of the defendant, the city of Kirkwood, and the city clerk of said city ordered to extend the said tax upon said property and make out appropriate and accurate tax books setting forth in suitable columns, opposite the names of each person and the item of taxable property as returned by the Assessor and Board of Equalization, the amount of said taxes due thereon, apportioning the said sum of money levied among the several owners of all said property according to the respective valuation thereof, and whereby it was provided when said taxes should be paid. By said ordinance it was further provided that the city clerk, as soon as said tax books were completed, should deliver the same to the city collector and charge the city collector with the full amount of taxes levied, and the said city collector directed, as soon as said tax should become due and payable, to proceed to collect the same, a copy of which said ordinance is herewith filed and referred to for greater certainty as to its terms and provisions, and marked `Exhibit C.' That at all of the times hereinbefore and hereinafter mentioned the St. Louis Union Trust Company was a corporation duly organized under the laws of the state of Missouri and engaged in a general trust company business, with its chief office and place of business located in the city of St. Louis and state of Missouri, and the executor of the estate of A. S. Mermod, deceased, having been duly appointed as such by the probate court of the county of St. Louis, Mo., and having duly qualified and entered upon the discharge of the duties of its said office.

"In pursuance to the last above mentioned ordinance, being Ordinance No. 318, the clerk of the city of Kirkwood prepared and delivered to the city collector the tax books in said ordinance provided for. That from said books it appeared that a tax for the purpose of paying for the construction of said public sewers, in the aggregate amounting to about the sum of nine thousand dollars ($9,000), had been levied against the estate of A. S. Mermod, deceased. That thereafter, and on or about the ____ day of ____, 1905, the St. Louis Union Trust Company, as executor of the estate of A. S. Mermod, deceased, commenced a proceeding by certiorari in the circuit court of St. Louis county, Mo., against the defendant the city of Kirkwood and its officers, entitled State of Missouri ex rel. Union Trust Company, etc., Relator, v. City of Kirkwood, C. G. Ricker, J. G. Hawken, and R. Pagenstecher, the general object and nature of which said proceeding was to have the circuit court of St. Louis county, Mo., quash and declare to be illegal, null, and void the said tax levied by said ordinance, numbered 318, above mentioned, and particularly the portion of said tax levied upon and taxed against the estate of said A. S. Mermod, deceased, a copy of the petition of the relator in which said cause and the return of the respondents thereto is...