Rumsey Mfg. Co. v. Inhabitants of Town of Schell City

• Decision Date: 02 March 1886
• Citation: 21 Mo.App. 175
• Parties: L. M. RUMSEY MANUFACTURING COMPANY, Respondent. v. THE INHABITANTS OF TILE TOWN OF SCHELL CITY, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 175

L. M. RUMSEY MANUFACTURING COMPANY, Respondent. v. THE INHABITANTS OF TILE TOWN OF SCHELL CITY, Appellant.

Court of Appeals of Missouri, Kansas City.

March 2, 1886

APPEAL from Vernon Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed.

The case is stated in the opinion.

I. C HAMBAUGH and SCOTT & HOSS, for the appellant.

I. The defendant has no right to make a purchase of this character except by ordinance. There was no ordinance passed here, and no attempt to pass any. Rev. Stat., sect. 5010; Dillon Mun Corp. (3 Ed.) sects. 432, 309, 310.

II. The board acted clearly without authority, and, therefore, could not bind the town. Johnson v. School Dist., 67 Mo. 319; Cheeny v. Brookfield, 60 Mo. 53; Dillon Mun. Corp., sect. 266.

III. If any one is bound in this case it is the individual members who signed the order for the engine.

E. E. KIMBALL, for the respondent.

I. The power to purchase is only given by necessary implication; and there is neither law nor reason for requiring it to be by ordinance, no more than for a plow or spade to keep the streets in repair.

II. The purchase was authorized at a special meeting of the board of trustees, presumed to have been regularly called, as nothing to the contrary appears. Hartwell v. Root, 19 Johns. (N. Y.) 345.

PHILIPS P. J.

This is an action to recover from defendant the sum of three hundred and four dollars, alleged to be due plaintiff as the balance on the sale of a fire engine. The first count of the petition is based on a warrant purporting to have been issued to plaintiff by the board of trustees of said town for said sum. This issue was found for defendant. The second count alleges that plaintiff, in March, 1883, sold to defendant a fire engine for the sum of seven hundred and ninety-seven dollars, on which defendant had paid the sum of four hundred and ninety-three dollars; and judgment is asked for the balance of the purchase money.

The answer alleges that whatever amount was paid to plaintiff on said engine was without authority of law, and that the board of trustees had no legal authority for making such purchase. To maintain its action, plaintiff introduced in evidence the following entry found on defendant's journal of proceedings:

" TOWN HALL, SCHELL CITY, MISSOURI,

December 6, 1883.

Special meeting of the chairman and board of trustees of the town of Schell City, Missouri, called for the purpose of appointing a town collector and fixing the amount of his bond, also for the purpose of considering the purchasing of a fire engine for the use of the town. S.W. Norton in the chair; present T. L. Strong, H. G. Cunningham, and J. L. Higbee. On motion, the chairman of the board of trustees was authorized and directed to purchase a fire engine for the use of the town of Schell City. W. E. Bower was appointed to take charge of the engine upon its arrival, and to have the control and direction of said engine for one year, unless otherwise ordered.

On motion, the board then adjourned.

M. F. BROWN, T. L. STRONG,

Clerk. Chairman, pro tem. "

Plaintiff also introduced other evidence of the recognition of said debt by the board of trustees, as by paying part of the purchase money, and issuing the warrant for the residue. On this count the court found the issue for plaintiff, and rendered judgment accordingly. From this judgment defendant prosecutes this appeal.

I. The controlling question in this case is, has the municipal body duly bound itself in this transaction so as to authorize the plaintiff to recover against the defendant corporation? It is conceded that defendant is a municipal corporation, organized under article six, chapter eighty-nine, Revised Statutes. By section 5010 it is provided that the " board of trustees shall have power to pass by-laws and ordinances," to do various acts and perform certain functions. The power to make such a purchase is derived from this section of the statute.

This being so, it is axiomatic that this power can be exercised only in such manner as is prescribed by the creative act. In Stewart v. City of Clinton (79 Mo. 603), the same provision, found in Wagner's Statutes, page 1314, was construed. After referring to the appropriate provisions of the statute, the court say: " From all this it is manifest that whilst jurisdiction over the streets * * * is conferred on the board of trustees, the manner of exercising that jurisdiction is just as clearly defined to be by ordinance and not otherwise. Unless, therefore, the acts complained of were ordered by the defendant through its board of trustees by ordinance, it was not the act of the corporation, and this, for the obvious reason that the charter, which is the power of attorney, clearly places the responsibility of grading, etc., the streets on the town board, and the initiation of such work, which would impose a burden upon the constituency, is the exercise of sovereign authority, and should, therefore, rest in the sound discretion of the governing authority of the municipality."

So in Werth v. City of Springfield (78 Mo. 107), the court say: " The defendant can only be held responsible for the acts of its officers, agents, or servants in changing the grades of its streets, etc., when such change has been authorized by ordinance."

We must, therefore, hold that the only method by which the board of trustees could bind this defendant for the purchase of this engine, in this form of action, was by ordinance authorizing the contract of purchase.

The only remaining question to be answered is, did the board pass such ordinance? It may be conceded to respondent that where the power to pass such ordinances is general, and no form is prescribed in which these should be enacted or passed, form is not indispensable, so long as substance is observed. It has been held under statutes requiring an ordinance, where no form was prescribed, that although the act was denominated a resolution, or purported by its terms to be a resolution yet, if it contained the substance and requirements of an...