Moran v. Lindell

• Decision Date: 31 March 1873
• Citation: 52 Mo. 229
• Parties: JOHN MORAN, Respondent, v. JEMIMA LINDELL, et al., Appellants.
• Court: Missouri Supreme Court

52 Mo. 229

JOHN MORAN, Respondent,

v.JEMIMA LINDELL, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Wilbur F. Boyle, for Appellants.

I. When the ordinance 6,599, was passed, Grand Avenue had not been opened to the width of 120 feet as required by ordinance 6,126; and the charter prohibits the City Council from grading, paving or macadamizing any street or avenue “not established and opened according to law and ordinance.” (Sess. Acts 1867, p. 71, Act 8, § 1; Dillon on Mun. Corp. p. 367.)

II. The charter required that the ordinance authorizing this work should prescribe the extent, dimensions, material and manner of doing it. (Sess. Acts 1867, p. 73, § 9; Murphy vs. Clemens, 43 Mo., 395; Haegele vs. Mallincrodt, 46 Mo., 577; Schenectady vs. Schermerhorn, 6 N. Y., 92.)

III. The ordinance under which the contract purported to have been made was void, and the contract was therefore void ab initio, and no subsequent action of the Council could give it validity. (Ruggles vs. Collier, 43 Mo., 353; Murphy vs. Clemens, 43 Mo., 395; Brady vs. The Mayor, &c., of N. Y., 20 N. Y., 312.)

IV. The charge made in the tax bill could not be supported by this contract, being for only a portion of the work called for by the contract. (McGrath vs. Clemens, 49 Mo., 552.)

V. The macadamizing sued for is 25 feet distant from the property sought to be charged, whereas it must be adjacent to, as well as in front of the property. (Sess. Acts 1867, p. 74. § 11; Philadelphia vs. Eastwick, 35 Penn. St., 75.)

VI. The City Concil could not by ordinance, nor the City Engineer by parol agreement, modify or alter a contract already made and approved. The Council exhausted this power over the contract, when the contract was approved. (Dillon Mun. Corp., § 373; State vs. Barlow, 48 Mo., 17; Ruggles vs. Collier, 43 Mo., 353; Murphy vs. Clemens, 43 Mo., 395; McSpedon vs. Monroe, 7 Bosw., 601; Dey vs. Jersey City, 19 N. J. Eq., 412; Bank vs. Dandridge, 12 Wheat., 68-9; Fox vs. New Orleans, 12 La. Ann., 154; Robert G. Boneskeel vs. Mayor N. Y., 20 How. Pr. R., 237.)

Thomas Grace, for Respondent.

If the contractor submits to the action of the council, restricting the amount of work to be done under the contract, and voluntarily and by direction of ordinance, leaves undone those portions of the work which the council declare by ordinance cannot be done, that forms no ground of complaint on the part of appellants.

The same power that contracts may assent to, vary or modify the contract. (Messenger vs. City of Buffalo, 21 N. Y., 196.)

WAGNER, Judge, delivered the opinion of the court.

This was an action on a certified tax bill issued by the City Engineer of the City of St. Louis against the defendants, to defray the cost of macadamizing Grand Avenue in front of their property. The plaintiff had judgment in the court below and the defendants have appealed the case here.

It appears by the record, that on the 3rd day of July, 1868, the City Council passed an ordinance, numbered 6,599, directing the Engineer to cause Grand Avenue from Lindell Avenue to Kossuth Avenue to be graded, curbed, macadamized, etc., according to law.

Under this ordinance the work was let out and the plaintiff finally became the contractor. At the time the contract was made, Grand Avenue was of an irregular shape, being eighty feet wide in one section, one hundred feet wide in another section, and one hundred and twenty feet in another section, and Ordinance 6,126 had been passed, providing for widening the whole Avenue to the width of one hundred and twenty feet. But this Ordinance had not been carried into effect. Before the macadamizing was put upon the street, the City Council passed two other Ordinances: one 6,866, prescribing the manner in which the Avenue should be laid out differing from the ordinary method; and the other 6,902, amendatory of Ordinance 6,599, which provided, that inasmuch as the Avenue was not widened to its full extent as established by ordinance, that the Engineer should only grade the street, and cause the carriage ways twenty feet wide on each side to be macadamized.

It is first objected, that the contract was void because there was no ordinance in existence at the time, defining the dimensions and material and manner of doing the work. But this position cannot be maintained. The contract was made and entered into by the City Engineer, under the provisions of General Ordinance 5,399, which prescribes the manner of curbing and paving streets, and regulates the dimensions and size of the materials used. This question upon this ordinance was before this court in the case of Sheehan vs. Gleeson, (46 Mo., 100,) and it was held that the ordinance was a compliance with the charter, and gave the Engineer power to act.

As remarked in that case, the ordinance wants precision, and is not as full and complete...