Inhabitants of Palmyra v. Morton

• Decision Date: 31 October 1857
• Citation: 25 Mo. 593
• Parties: INHABITANTS OF PALMYRA, Defendants in Error, v. MORTON, Plaintiff in Error.
• Court: Missouri Supreme Court

25 Mo. 593

INHABITANTS OF PALMYRA, Defendants in Error,

v.MORTON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1857.

1. The trustees of the town of Palmyra had power, under the tenth section of the act incorporating said town (Local Acts, 1845, p. 151),-- if the owner or occupier of lots adjacent to the streets of said town should fail to pave the same as directed by the ordinances--to pave the same and recover the full expense thereof from such owner or occupier. The charter, authorizing such assessments, is in conformity to the constitution.

2. Such a suit is properly brought in the name of the corporation.

3. A member of a municipal corporation will be presumed to be aware of its by-laws and ordinances.

Error to Marion Circuit Court.

Lipscomb and Lackland, for plaintiff in error.

I. The trustees had no right by authority of law to require Morton to curb and pave the streets in front of his property. The street is public property, a matter of public concern, and can, therefore, be made only by a general tax imposed upon the citizens and proprietors in proportion to the value of their property. The proceedings against Morton, if sustained, would be the imposition of a special and partial tax upon one individual for a public benefit; or, in other words, the taking of private property for public use without just compensation. The Legislature has no power to do this, and could confer no such power upon the trustees of the town of Palmyra.

II. Morton was never requested to pave and curb. The ordinance cannot be construed into a requisition upon Morton. The notice in the Palmyra Whig is not a sufficient notice to Morton.

III. There is nothing in the record showing that the trustees of Palmyra ever paid out money for which this suit is brought.

IV. This suit should have been brought by the trustees, and not by the inhabitants, as appears by the record.

McCabe and Dryden, for defendants in error.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiffs were incorporated a body politic by an act of the general assembly, approved March 3d, 1845 (Sess. Acts, 1845, p. 152), by the name of “The Inhabitants of the Town of Palmyra,” and by that name were authorized to sue and be sued. The corporate powers of the town were vested in a board of trustees, to consist of five members, to be chosen by the qualified voters of the town, who were authorized by the tenth section “to have the footways and sidewalks of the streets paved at the expense of the owners or occupiers of the adjacent lots; and if such owner or occupier fail to pave the same as directed by ordinances, said trustee shall pave the same and recover the full expense thereof from such owner or occupier, before any court of competent jurisdiction, by action of debt.” On the 3d of May, 1853, an ordinance was passed by the trustees requiring the owners or occupiers of property fronting on Main street, from Church to Jefferson streets, to curb and pave the same-- the curbing to be of rock not less than three inches thick, and the paving to be of the width of eleven feet, and to be completed on or before the first day of September following. The defendant failed to have the curbing and paving done in front of his property; and in October, 1853, it was done by order of the trustees, for the expenses of which this suit was brought. On the trial only two instructions were asked, which were refused. They are as follows: “1. That unless the jury believe from the evidence that the defendant requested the plaintiffs to curb and pave in front of the lots in question, or to have said curbing and paving done, they will find for the defendant. 2. That unless they believe from the testimony that the money, alleged to have been paid by the plaintiffs for curbing and paving in front of said lots, was so paid by plaintiff at defendant's request, they will find for defendant.” The verdict was for the plaintiffs; after which the defendant moved for a new trial, and in arrest of judgment; but the motions were overruled.

The main objection taken by defendant, which arises on the motion in arrest, is that the street is public property,...