Morse v. City of West Port
| Decision Date | 06 June 1892 |
| Citation | 19 S.W. 831,110 Mo. 502 |
| Parties | Morse et al. v. City of West Port et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.
Reversed and remanded.
Scarritt & Scarritt and W. A. Alderson for appellants.
(1) Express authority is given by Revised Statutes, 1889, section 1589, to cities of the fourth class to pave their streets. The word "building" used in the statutes includes "paving." (2) The ordinance is not an unreasonable one. The passage of the ordinance for doing the work is of itself a strong presumption that the ordinance was reasonable. State v. Trenton, 20 A. 1076. The authorities of a city have a large discretion as to the necessity or expediency of the ordinance they adopt. Corrigan v. Gage, 68 Mo. 544. (3) The guaranty provision in the ordinance was authorized.
Karnes Holmes & Krauthoff for respondents.
(1) Municipal powers are to be strictly construed, and "any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied." 1 Dillon on Municipal Corporations [4 Ed.] sec. 89. (2) Cities of the fourth class have no power to pave their streets otherwise than with macadam. R. S. 1879, sec 4942; Laws, 1889, p. 42; R. S. 1889, sec. 1592. (3) The ordinance is unreasonable. (4) The ordinance is void because of the provision for repairs. People v. Maher, 9 N.Y.S. 94.
The defendant, the city of Westport, is a city of the fourth class, operating under the general laws of the state. On the thirteenth day of October, 1891, defendant, the city of Westport, duly passed an ordinance authorizing the paving of Warwick boulevard, a street within its corporate limits, with a pavement known as asphaltum. Subsequently thereto, and on the twenty-first day of October, 1891, the said city of Westport, after advertising for bids, duly entered into a contract with the defendant, the Barber Asphaltum Paving Company, to pave said Warwick boulevard in accordance with the terms of said ordinance.
The plaintiffs herein, being property-owners, and owning property along said Warwick boulevard fronting thereon, and being subject to special assessment for the payment of the cost of said paving, instituted this proceeding by injunction, to restrain the city of Westport and the paving company from carrying out the terms of said contract and ordinance, on the ground that under the law said city of Westport had no power to authorize the laying of such pavement on said street. The defendants filed their joint answer, in which they set up the authority of the city, including the ordinance, contract, advertisement for bids, the award and the confirmation of the contract by the city, and also set up the facts relating to the situation of the city and of the property and property-owners along the proposed improvement, and thereupon the plaintiffs filed their general demurrer to the answer of the defendants on the ground that the answer stated no defense to the cause of action, which demurrer was sustained by the court, and the defendants refusing to plead further the prayer of the petition asking for a permanent injunction was granted, and judgment rendered in accordance therewith.
"The city of Westport is situated contiguously to Kansas City, Missouri, on the south side thereof, and the dividing line between said city of Westport and said Kansas City is the center of a street called Thirty-first street or Springfield avenue, one-half of said street being in said city of Westport and the other half in said Kansas City; said Kansas City is a city organized and existing under a charter authorized by section 16, article 9, of the constitution of the state of Missouri, and has within its boundaries more than one hundred thousand inhabitants, and the city of Westport has a population of several thousand; the streets in said two cities running north and south are generally continuous through both of said cities; said Warwick boulevard in said city of Westport is a street varying from sixty to seventy-five feet in width, the roadway of which between the curb lines is, or is to be, thirty feet in width; said thirty feet in width between the points above mentioned on said street is the part thereof which is to be improved by the asphalt pavement to be laid according to the ordinances and contract referred to; said Warwick boulevard extends north and south from Thirty-fifth street in said city of Westport through a greater part of said city of Westport; and the said Kansas City aforementioned and said city of Westport have now in progress in the proper courts their respective condemnation proceedings for the extension of said Warwick boulevard north from said Thirty-first street to the northern boundary of Westport, a distance of about four blocks, and through a large portion of said Kansas City to a junction with Grand avenue in said city; most of the property on both sides of said Warwick boulevard in said city of Westport is available and desirable for residence purposes, and the market value thereof averages about twenty-five dollars ($ 25) per front foot; a number of handsome residences are already built on said Warwick boulevard in said city of Westport, at a value of from six thousand dollars ($ 6,000) to fifty thousand dollars ($ 50,000) each; a majority of the citizens owning property and residents in said boulevard have petitioned the mayor and board of aldermen of said city of Westport for the improvement mentioned in the ordinances and contract referred to; the total number of front feet on said Warwick boulevard which is to be paved under said ordinances and contract is about twelve thousand, two hundred and twenty-eight; the owners of twenty-five hundred and twenty-six feet of said total number of feet have joined in the petition to the mayor and board of aldermen for the doing of said work."
The foregoing allegations of fact were made in the answer. At the revising session of 1889, the legislature amended section 4942, Revised Statutes, 1879, by repealing that section and enacting a new section, which was approved and took effect May 18, 1889. Laws, 1889, p. 42. The words of that section so far as necessary to quote them, are as follows: ...
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