Henry Bohle's Adm'r v. Stannard
| Decision Date | 08 April 1879 |
| Citation | 7 Mo.App. 51 |
| Parties | HENRY BOHLE'S ADMINISTRATOR, Appellant, v. S. B. STANNARD ET AL., Respondents. |
| Court | Missouri Court of Appeals |
Where the City Council has the power to cause a street to be macadamized whenever a majority of the property-holders request it or whenever the Council shall deem it necessary, if the preamble to an ordinance passed to macadamize a street recites that the ordinance is adopted on the prayer of a majority of the property-holders, it is immaterial whether this statement be true, as the power to have the work done is not dependent upon the request of the property-holders, and the matters stated in the preamble are, therefore, not jurisdictional. The necessity for the work is implied from the passage of the ordinance.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
GOTTSCHALK, for appellant: The fact that the Council passed the ordinance was sufficient to show the necessity for the work.-- Miller v. Anheuser, 2 Mo. App. 169; TheCity v. Œters, 36 Mo. 460. And there was no necessity for looking to the preamble.-- Young v. The City, 47 Mo. 492; Townsend v. Hoyle, 20 Conn. 1-9.
S. N. HOLLIDAY, CHARLES E. PEARCE, and G. M. STEWART, for respondents: The preamble was effective only in showing that the ordinance was based upon the petition, for which purpose it is to be used in the solution of the question as to what was the jurisdictional basis of the ordinance.-- The City v. Tiefel, 42 Mo. 590; The State v. Matthews, 44 Mo. 527; The State v. Bank, 45 Mo. 536; Williams v. Williams, 4 Seld. 525. It being determined by the triers of the fact that the ordinance was passed upon the petition, this fact is jurisdictional, and the statement of the preamble was not conclusive; and it is competent, and a good defence, to show that the petitioners were not resident property-owners as required by law.--Dill. on Mun. Corp. 738, and authorities.
This is an action on a special tax-bill for macadamizing Bremen Avenue in St. Louis, between Broadway and the river. The petition is in the usual form. The answers of the defendants set up as matter of affirmative defence that the charter of St. Louis in force when the ordinance was passed under which the work was done provided that in cases where the mayor and City Council should deem it necessary, and also in all cases where a majority of the owners, resident thereon, of the land and lots fronting on any street should petition for the grading, paving, or macadamizing thereof, the City Council should cause the same to be graded, macadamized, etc., in such manner as provided by ordinance; that the ordinance under which the work in question was done purports to have been passed on petition of a majority of the resident property-owners on Bremen Avenue between Broadway and the river, but that in fact a majority of such resident property-owners did not petition the Council to have the street improved, and the ordinance was not passed on petition of a majority of the resident property-holders, and was therefore invalid. The cause was tried by a jury; there was a verdict and judgment for defendants, and plaintiff appeals.
It appears from the evidence introduced on the trial that the work was done under ordinance 5813, approved March 20, 1866, which is as follows:--
“[No. 5813.] An ordinance to improve Bremen Avenue from Broadway to the river.
Whereas, a majority of the resident owners on Bremen Avenue, from Broadway to the river, have petitioned the Common Council to have said street improved; therefore,
Be it ordained by the Common Council of the City of St. Louis:--
Sect. 1. The city engineer is hereby authorized and instructed to cause Bremen Avenue to be graded, and the carriage-way to be macadamized twenty feet wide in the centre thereof.
Sect. 2. The cost of grading shall be paid by the city of St. Louis, and the sum of one thousand dollars is hereby set apart for that purpose out of appropriations for streets and alleys. The cost of macadamizing shall be assessed as a special tax against the property fronting thereon, in accordance with charter and ordinance.”
A petition dated February 6, 1866, was presented to the Common Council, praying for the passage of such an ordinance; and it is agreed that the defendants introduced evidence tending to show that said signers of the petition, at the time, were not owners of any real estate fronting on said improvement; that they were tenants of owners under leases from year to year, and did not reside on Bremen Avenue east of Broadway; also, that said signers were not the owners of any part of the land or lots fronting on Bremen Avenue between Broadway and the river, and that said petition was not signed by a majority of the owners resident thereon.
On March 19, 1866, an act was passed by the General Assembly, entitled “An act to revise the city charter of the city of St. Louis,” wherein...
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...64 Mo. 418. The passage of the ordinance is conclusive as to the necessity for the work.-- Miller v. Anheuser, 2 Mo. App. 168; Bohle v. Stannard, 7 Mo. App. 51.HAYDEN, J., delivered the opinion of the court. This is a suit on a special tax-bill issued against property of the defendant at th......