Municipal Securities Corp. v. Gates

• Decision Date: 06 April 1908
• Citation: 109 S.W. 85,130 Mo.App. 552
• Parties: MUNICIPAL SECURITIES CORPORATION, Appellant, v. JEMUEL C. GATES, Respondent
• Court: Kansas Court of Appeals

109 S.W. 85

130 Mo.App. 552

MUNICIPAL SECURITIES CORPORATION, Appellant, v. JEMUEL C. GATES, Respondent

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

William R. James, for appellant, filed argument.

Henry N. Ess for respondent.

The ordinance is invalid and without authority of law in delegating to the city engineer the power to determine which five feet (what part) of the thirteen-foot sidewalk space was to be paved; on which five feet was a sidewalk to be constructed. This ought to have been determined by the council, in their legislative capacity. They could not delegate this power to the city engineer. I quote section 2 article 9, City Charter of Kansas City, page 137. Ramsey v. Field, 115 Mo.App. 625; Excelsior Springs v Ettenson, 120 Mo.App. 226; Ruggles v. Collier, 43 Mo. 377; St. Louis v. Railroad, 43 Mo. 379; St. Louis v. Clemens, 43 Mo. 403; St. Louis v Russell, 116 Mo. 255; St. Louis v. Howard, 119 Mo. 43; Neil v. Gates, 152 Mo. 594; St. Joseph ex rel. v. Wilshire, 47 Mo.App. 130; Haag v Ward, 186 Mo. 348; City to use v. Eddy, 123 Mo. 557; Sheehan v. Gleason, 46 Mo. 105; Haegele v. Mallinckrodt, 46 Mo. 579; Sedalia to use v. Donahue, 190 Mo. 422; State ex rel. v. St. Louis, 56 Mo. 281; Saline County v. Wilson, 61 Mo. 239; Stewart v. Clinton, 79 Mo. 609; Reisterer v. Land Co., 160 Mo. 152; Kansas City v. Bacon, 147 Mo. 303; State ex inf. v. Trust Company, 144 Mo. 586; Unionville v. Martin, 95 Mo.App. 36.

OPINION

BROADDUS, P. J.

--This is a suit in four counts to enforce the lien of four special taxbills, issued by Kansas City to pay for constructing sidewalks in front of certain lots owned by defendant. These taxbills were issued August 24, 1899, and aggregate without interest the sum of $ 1,039.63. A jury was waived and the cause tried before the court upon an agreed statement of facts. The judgment was for the defendant from which plaintiff appealed.

The sidewalk space on each side of the street was thirteen feet. The ordinance provided for the construction of sidewalks five feet wide within this space, the distance from the outer line to the curb to be determined by the engineer. The contract also is to the same effect. There are no questions raised as to the quality of the work. The defendant contends that the ordinance under which the work was done was invalid because it delegated to the engineer the duty of locating the walks.

Section 2, Article 9, Charter of Kansas City provides for the construction of sidewalks, "within the city, at such times, and to such extent, of such dimensions and of such materials and in such manner and under such regulations as may be provided by ordinance, and to pay therefor . . . by issuing special taxbills as herein mentioned . . ." The argument of the plaintiff is that the location of the sidewalk within the thirteen feet space was a mere matter of detail and not necessary to be specified in the ordinance.

It is held: "Where the charter of a city requires that the size of a sewer to be constructed be prescribed by ordinance but contains no such requirements as to inlet manholes, etc., nor the material to be used in their construction, the latter are mere appendages and may be regarded as matters of detail not necessary to be specified in the ordinances. [St. Joseph to use of Gibson v. Owen, 110 Mo. 445, 19 S.W. 713.] Every material requirement of the charter was complied with in that instance, under the provisions of the ordinance under which the work was done. Where the city charter required sewers to be of such dimensions, mentioned, etc., as shall be prescribed by ordinance, a tax bill was held not to be void" because the ordinance did not specify the thickness of the sewer pipes, where the form of contract on which the bidding was based and which was entered into, specified the thickness, and it had been the uniform custom for years to use but one character of pipe; there being no pretense that the contractor used an inferior quality." [Dickey v. Porter, 101 S.W. 586; 203 Mo. 1.] In the case under consideration not only the ordinance but the contract also fails to definitely locate the sidewalk to be constructed, and there was no proof showing that there was any particular rule which should be followed in such cases. In Sheehan v. Gleeson, 46 Mo. 100, the question was not one of omission on the part of the city council to prescribe by ordinance the materials for the curbing or the manner of doing the work, but it was a question whether the ordinance was as definite and specific as to those matters as required by the provisions of the charter. In City of Excelsior Springs v. Ettenson, 120 Mo.App. 215, 96 S.W. 701, it was held that the taxbills for the curbing were good although not located by ordinance, because it was shown that its location could not be determined until the width of the roadway was determined....