Leach v. Cargill

• Decision Date: 31 May 1875
• Citation: 60 Mo. 316
• Parties: WILLIAM S. LEACH, Respondent v. AGNES CARGILL, et al., Appellants.
• Court: Missouri Supreme Court

60 Mo. 316

WILLIAM S. LEACH, Respondent

v.AGNES CARGILL, et al., Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Common Pleas.

J. W. & J. D. Strong, and Hedenburg and H. M. Ranney, for Appellants.

The petition should aver that the opportunity of improving the adjoining part of the street was given the property holders, and the defect was fatal.

B. R. Vinyard, for respondent.

I. The ordinance providing for giving the owners this privilege was directory, and if the engineer had given them no notice plaintiff ought not to have been made to suffer. (Neenan vs. Donoghue, 50 Mo., 495.)

II. Besides, the ordinance did not require the engineer to give the owners notice. It directed him to give them the “privilege” of doing the work in front of their lots. There is no evidence that they were refused the privilege or ever applied to do the work, proposals for which were publicly advertised.

III. The evidence of the advertisement for proposals was proper, as showing that the defendants were notified, at least constructively, that the work was to be let, so that if they desired they might do the work in front of their lots.SHERWOOD, Judge, delivered the opinion of the court.

Action on two special tax bills for macadamizing, &c., a certain portion of Edmond Street, between 8th and 10th streets.

There are numerous points presented by the record, but attention will only be centered on one, as it is decisive of this case.

It is well settled law in this State, as well as elsewhere, that the power of the municipal authorities is exclusively confined to the limits prescribed by the charter, and such ordinances as are passed in conformity thereto. (Kiley vs. Oppenheimer, 55 Mo., 374, and cases cited.)

The ordinance of September 9th, 1870, requiring the work in question to be done, made special provision that the city engineer should give “the owners of property fronting on said street the privilege of doing said work in front of their property.” This ordinance was a law equally as binding upon the city as upon the citizen; and there is no warrant whatever for the position assumed by plaintiff's counsel, that the clause first quoted is merely directory. Such a construction would effectually fritter away all the rights of the citizen, as now secured both by charter and by ordinance, and leave them at the mercy of those, who, feeling themselves unfettered by any legal restraint, might not long hesitate in making a most improper and oppressive use of...