Ruggles v. Collier
| Decision Date | 31 March 1869 |
| Citation | 43 Mo. 353 |
| Parties | MOSES H. RUGGLES and JACOB M. BIXLER, Plaintiffs in Error, v. SARAH A. COLLIER et al., Defendants in Error. |
| Court | Missouri Supreme Court |
[COPYRIGHT MATERIAL OMITTED]
Error to St. Louis Circuit Court.
The facts of the case, as agreed upon by the parties, appear in the opinion of the court.
R. M. Field, and A. N. Sterling, for plaintiffs in error.
The question arising in the present case is whether the nineteenth section of the city ordinance establishing and regulating the engineer department is comformable to the city charter.
The specific objection made and sustained in the court below was that the section in question amounted to a delegation to the mayor of the legislative power of the council, and the same was for that reason invalid. Consequently, all the work of the contractor was done under the authority of the mayor alone, and not under the authority of the council.
It will be proper, in the first place, to refer to such clauses of the charter as have an immediate bearing on the subject to be considered.
The ordinance in question was passed on the 5th day of August, 1864, and the general charter then in force was that of 1851. By the terms of this charter the council was empowered “to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve, clean, and keep in repair, streets, avenues, and alleys.” The same charter authorized the levying a special tax on the adjoining property-owners for grading and paving sidewalks.
The second section of the amendatory act of 1855 extends the provision as to a special tax on adjoining property-owners to all cases where streets are repaved. The third section of the same act is in these words:
The charter of 1851 provides that all work shall be let out by the city engineer to contractors, but that all contracts must be submitted to and approved by the council, or they will be invalid. This provision has been retained to the present time.
The foregoing statement of the provisions of the charter is believed to embrace all that is material to the present inquiry.
It is manifest that there is no plausible ground for contending that the work which is the subject of the present litigation was not done under the authority of the council. The contracts under which the plaintiffs acted were formally approved by the council; and they were entered into in pursuance of an ordinance passed by the council and approved by the mayor.
The objections taken to the ordinance will now be considered.
I. It is objected that the ordinance does not prescribe the manner of the work as the act of 1855 requires. The answer is:
1. The ordinance requires that the pavement shall be made of wood, and this is enough. It must be borne in mind that the streets to be repaved had all been long established in their directions, grade, and dimensions. In respect to such streets, it is conceived that the manner of the repavements could refer to nothing else than the material to be used.
2. The act of 1855 ought not to be construed as a limitation on the power of the council, but rather as a reservation of power to the council, to be exercised or not, at its pleasure.
The case of Noyes v. Ward, 19 Conn. 250, will illustrate and confirm this position. The council of the city of Norwich passed an ordinance authorizing the street surveyor “to make, maintain, and keep in repair all the streets and highways in the city, under such regulations and directions as the common council may from time to time prescribe.” No regulations were prescribed by the council, and the courts held that he was justified in acting by the ordinance.
The same point was decided by this court in St. Louis v. Oeters, 36 Mo. 463. The amendatory act of 1859 provides that “the common council may cause sewers to be constructed in each district, and sewers shall be made of such dimensions as may be prescribed by ordinance.” It happened that the council did not prescribe the dimensions of the sewer in question; and counsel, of course, objected that the ordinance was void and the work illegally done. This court dispatched the objection in the following terms:
3. The ordinance requiring a street to be paved is, under the charter, merely initiatory of the contract under which the work is to be done. If the charter had expressly declared that the ordinance should specify the mode and manner in which the work was to be done, such a provision could not justly be construed as being more than directory, a non-compliance with which would not avoid the contract.
4. The section of the ordinance in question is sustained by the general power to repair the streets conferred upon the council by the charter of 1851. For, when subsequent improvements are made to subsisting streets, previously put in proper condition, such improvements fall under the denomination of repairs. (People v. Brooklyn, 21 Barb. 494.) There is, then, no need to refer to the amendatory act of 1855 to sustain the ordinance.
II. Another objection taken to the ordinance is that it delegates to the mayor the legislative power of the council, in this: that it leaves to the discretion of the mayor to determine what portions of a large number of streets shall be repaved.
The general rule is indisputable that legislative power, implying, as it always does, judgment and wise discretion in those who exercise it, and a special confidence on the part of those who confer it, cannot be delegated over.
It is otherwise in regard to executive or ministerial duties. These may always be delegated to others.
Now, the making or repairing of streets is, in its nature, a merely executive or ministerial act.
Such powers must be delegated, or they cannot be exercised at all. And all the incidents must follow the nature of the principal power, including the time, order, mode, and manner in which the work is to be done. In truth, many of these incidents are of such a nature that they can never be withdrawn from executive discretion. Take, as an illustration, the power to make repairs of the streets. This power is vested by the charter in the council, and by a general ordinance is delegated to a subordinate officer. On the reasoning of the court below, this ordinance is void, as an illegal delegation of authority. It would follow that whenever a culvert gives way, or the pavement sinks by the collapse of a sewer, there must be a special ordinance for the particular case, before the officer can act. This would be very unreasonable.
It does not give a just idea of the ordinance to represent it as limiting the repavements of the streets to such as might be directed in the discretion of the mayor. The truth is, the ordinance confers the authority to repave all the streets within the assigned limits, and the discretion of the mayor is restricted to the time and order in which the work is to be done. These, as we have just seen, are proper subjects of executive discretion.
There is manifestly a particular reason in the present case for leaving this matter to the discretion of the mayor. All the streets to which the ordinance extends were already paved. The intent was to substitute the wooden pavement for the old pavement when the latter became worn out. As the necessity for a new pavement would arise at different times along the several lines of the streets, it was very properly referred to the mayor to order the repavement to be made, from time to time, as the necessity for it should exist. The case, then, stands upon the same reason that applies to repairs, which must be made occasionally, as the necessity for them may arise.
Great stress was laid, in the court below, upon these words in the nineteenth section: “wherever and whenever the Mayor shall deem it necessary;” and it is supposed that the decision of the court turned upon these particular words, and that the result would have been different if they had been omitted from the section.
Now, it is manifest that these words do really express no more than what would have been implied if they had been omitted. To test this, suppose the words were stricken from the section. The mayor then would have been authorized, without qualification, to cause all the streets within the limits fixed by the section to be repaved. But several miles of pavement can not be laid down uno ictu. Time is essential to the performance of the work, and this must necessarily be fixed by the officer who controls the work. So that the mayor must have exercised the same discretion as at present if the words in question had not been inserted in the section at all.
Since the ordinance of 1864 was passed, a new charter has been given to the city, substantially the same as the old charter on all the points bearing upon the present questions. There is some change of phraseology, but it is believed that the principles on which this case is to be decided remain unaffected. Counsel, therefore, have not deemed it necessary to enter into a particular examination of the present charter.
Hitchcock & Lubke, and Voorhies & Mason, for defendants in error.
I. The contract sued on, if...
To continue reading
Request your trial
-
State v. Fort
...not be delegated to any other person or persons. What is a legislative function has often been considered by this court. Thus in Ruggles v. Collier, 43 Mo. 353, the charter of the city of St. Louis provided that: "In those cases where the city council shall deem it necessary, and also in ca......
-
Ruckels v. Pryor
...upon the part of those who exercise it, and it can only be legally exercised by those upon whom it has been expressly conferred. Ruggles v. Collier, 43 Mo. 353; City of Nevada v. Eddy et al., 123 Mo. 546; Stewart v. City of Clinton, 79 Mo. 603. (3) The charter of Kansas City clothed the dir......
- Rachels v. Stecher Cooperage Works
-
St. Louis Police Relief Association v. Tierney
...v. Am. Ins. Co., 97 Ind. 299; Smith v. Smith, 62 Ill. 494; Couch v. Fire Ins. Co., 38 Conn. 181; Plahto v. Ins. Co., 38 Mo. 255; Ruggles v. Collier, 43 Mo. 375; Mathews Skinker, 62 Mo. 332; Ellerbe v. Faust, 119 Mo. 653; Assn. Fund v. Allen, 106 Ind. 593; 7 N.E. 317; Stephenson v. Stephenso......