Kiley v. City of St. Joseph

• Decision Date: 30 April 1878
• Parties: KILEY, Plaintiff in Error, v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

67 Mo. 491

KILEY, Plaintiff in Error,

v.CITY OF ST. JOSEPH.

Supreme Court of Missouri.

April Term, 1878.

Error to Buchanan Circuit Court.--HON. JOSEPH P. GRUBB, Judge.

Ben Loan and W. H. Sherman for plaintiff in error.

B. R. Vineyard and Andrew Royal for defendant in error.

HOUGH, J.

This was an action to recover from the city of St. Joseph the sum of $1059.48, for work done by the plaintiff in macadamizing, curbing, guttering and paving certain portions of Missouri street in said city. The petition set forth the corporate authority, the ordinances authorizing the work to be done, the contract made in pursuance thereof, the performance of the work, and concludes as follows: “That the defendant and each and every officer thereof thereunto authorized, failed and omitted to assess the cost of said work and materials, so as aforesaid unpaid, against any lot or lots or parcels of ground fronting upon or adjoining the work done, as aforesaid, by the plaintiff, and plaintiff has no lien against any such lot or parcel of ground, or any charge against the owner of any such lot or parcel of ground, for the amount so as aforesaid remaining unpaid or any part thereof, wherefore the plaintiff prays judgment against the defendant,” &c. A demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, was sustained by the court, final judgment for the defendant was rendered thereon, and the plaintiff has brought the case here by writ of error. The concluding paragraph of the petition would seem to indicate that this suit was originally prosecuted upon the theory that the work done was properly chargeable to the adjacent property and that by reason of the failure of the officers of the city to assess the cost of said work, the plaintiff's lien therefor on said property was lost, and the city thereby became liable for the value of said work. That view, however, has not been presented in argument here. The plaintiff now contends that the city had authority to order the work in question to be done, under its general power to improve the streets of the city, and that as neither the ordinance requiring the work to be done, nor the contract under which it was done, specified that it was to be paid for in special tax bills, said work constituted a claim against the city, and was not chargeable to the adjoining property.

It was virtually decided in Saxton v. The City of St. Joseph, 60 Mo. 153, that the city could not be held liable for street improvements of the kind involved in the present suit. The question, it is true, was not directly presented in that case, but it was considered by counsel that such was the law, and it was so declared by the court. We have carefully re-examined the various provisions of the city charter on the subject of street improvements, and are convinced of the correctness of our former decision. Art. 5, Sec. 10, of the original charter of the city of St. Joseph, approved February 22d, 1851, provides that the mayor and councilmen of the city of St. Joseph shall have power, by ordinance, “to open, alter, abolish, widen and extend, establish, grade, pave or otherwise improve and keep in repair, streets, avenues, lanes, drains and sewers.” Art. 6, Sec. 1, of said charter, provides that “upon the application of the holders of two-thirds of the front upon any...