Ramsey v. Field

• Decision Date: 08 January 1906
• Citation: 115 Mo. App. 620,92 S.W. 350
• Parties: RAMSEY v. FIELD et al.
• Court: Missouri Court of Appeals

92 S.W. 350

115 Mo. App. 620

RAMSEY v. FIELD et al.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — ORDINANCE—DELEGATION OF LEGISLATIVE AUTHORITY.

Under Kansas City Charter, art. 9, p. 137, providing that the city council shall have power to construct sidewalks "to such extent, of such dimensions, and with such material * * * as may be provided by ordinance," prescribing the width of a sidewalk is a legislative function which devolves on the city council, and which it cannot delegate to a ministerial officer.

2. SAME.

Under Kansas City Charter, art. 9, p. 137, authorizing the city council to construct sidewalks of such dimensions and in such manner as may be provided by ordinance, a sidewalk ordinance providing that the width of the sidewalk shall "not be less than five feet, laid so that the outer edge shall be as directed by the city engineer," does not authorize the engineer to let the work at any dimension greater than the minimum and thus constitute an unwarranted delegation of legislative authority to him, but requires him to let the contract in the language of the ordinance, and is consequently sufficiently definite as to the width of the sidewalk to satisfy the charter provision, as it may be assumed that the contractors will bid upon the minimum dimension, and the ordinance therefore practically provides for a sidewalk five feet in width.

3. SAME.

Where the space between the property line and the curbing on a street was 11 feet, an ordinance providing for the construction of a sidewalk not less than 5 feet in width, to be laid "so that the outer edge shall be as directed by the city engineer," delegates to the city engineer the authority to locate the walk within the 11-foot space, and is consequently invalid for uncertainty, under Kansas City Charter, art. 9, p. 137, authorizing the city council to construct sidewalks of such dimensions and under such regulations as may be provided by ordinance.

4. SAME—PARTIAL INVALIDITY OF ORDINANCE —EFFECT.

Under Kansas City Charter, art. 9, p. 137, authorizing the city council to construct sidewalks of such dimensions and under such regulations as may be provided by ordinance, where an ordinance for the construction of a sidewalk contains no provision for the width or location of the walk, except that embraced in an invalid section, the rejection of the invalid section leaves no authority for the construction of the walk, and renders the ordinance and tax bills issued thereunder unenforceable.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Jeremiah W. Ramsey against Annie C. Field and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Wm. E. Smith, for appellant. Gage, Ladd & Small and R. H. Field, for respondents.

ELLISON, J.

This action was instituted to recover the amount of three special tax bills issued for the construction of a sidewalk in front of defendant's property on Baltimore avenue, in Kansas City. The judgment in the trial court was for the defendant. In his reply to defendant's answer, plaintiff made the following admission of facts in the case: "Plaintiff admits that Baltimore avenue was then, as now, fifty (50) feet wide, and the division line between the roadway for vehicles and teams, and the sidewalk for pedestrians, was the curbing set and constructed thereon, eleven feet from the line of the private property, abutting on Baltimore avenue, with the said eleven feet, or so much thereof that should be appropriated by ordinance of said city, left for sidewalk purposes, that the width and the location of the said walk constructed under said Ordinance No. 10,239 on Baltimore avenue, was not determined nor prescribed by ordinance of said city, other than as prescribed in section 3, of said ordinance as follows: `Sec. 3. The width of the sidewalk shall not be less than five (5) feet, laid so that the outer edge shall be as directed by the city engineer."'

The defendant insists that the ordinance just quoted is void, in that it fails to prescribe the width of the sidewalk. The charter of Kansas City provides that the city council shall have power to construct sidewalks "to such extent, of such dimensions, and with such material, and in such manner, and under such regulations as may be provided by ordinance." Charter, art. 9, p. 137. It thus clearly appears that the width of a sidewalk is a legislative function devolving on the city council. This the plaintiff does not deny; but he says the ordinance did sufficiently prescribe the width of the walk. To prescribe that a walk shall not be "less than five feet" in width is a provision that it may be any greater number of feet, and so a walk ten feet wide would meet the requirement of the ordinance as fully as one of five feet. The question has been directly decided by the Supreme Court of Illinois; the court saying that "we are unable to see how it can be seriously contended that to describe a walk as `not less' or `not more than' so many feet wide is a substantial compliance with the statute, which requires the ordinance to prescribe the width of a sidewalk." Mansfield v. People, 164 Ill. 611, 45 N. E. 976, ...