Saxton v. City of St. Joseph

• Decision Date: 31 May 1875
• Citation: 60 Mo. 153
• Parties: ALBE M. SAXTON, Plaintiff in Error, v. CITY OF ST. JOSEPH, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 153

ALBE M. SAXTON, Plaintiff in Error,

v.CITY OF ST. JOSEPH, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Buchanan Circuit Court.

Allen H. Vories, for Plaintiff in Error.

I. Under the amended charter of the city of St. Joseph she was authorized to macadamize her streets, and the general power was conferred; but the specific mode pointed out was by ordinances. (See Saxton vs. Beach, 50 Mo., 488; Rev. Ord. St. Jo., 1869, p. 8, § 10.)

II. If the defendant, in directing the macadamizing, had passed an ordinance, instead of adopting a resolution, for that purpose, she would have been exempt from any liability to be sued; and having complied with her charter the plaintiff would have had his remedy over against the property owner for the work done. (See Saxton vs. Beach, supra;City of St. Louis vs. Cl mens, 52 Mo. 144, 145; Fisher vs. City of St. Louis, 44 Mo., 482, 483; Wetmore vs. Campbell, 2 Sanf., 341, 351.)

III. But, failing to pass an ordinance, plaintiff had no remedy against the property owner, under § 5 of the Act of February 8th, 1865. (Laws & Ord. St. Jo., 47-8.) And defendant was under obligation to give plaintiff a remedy over for the work done, or make itself “liable in a civil action for the damages resulting to individuals from its neglect to perform the duty required.” (See Dil. Munic. Corp., §§ 764-778, with cases cited; City of St. Louis vs. Clemens, supra.)

IV. Under the charter of defendant she had the full and general power given “to open, alter, abolish, widen and extend, establish, grade, pave, or otherwise improve and keep in repair streets, avenues, lanes, drains and sewers;” and there was, under said charter, a further provision that macadamizing streets “should be paid for by assessing the costs of same on the property benefited.” (Rev. Ord. City St. Jo., 1869, p. 8, § 10, pp. 47, 48, § 5.) But the power in a municipal corporation to make local improvements, though the expense be directed in the charter to be assessed upon the property benefited, gives the corporation implied power to make general contracts therefor--and failing to comply with the special terms of the charter, which would make the improvements bear the burden of paying by assessment, the corporation itself becomes responsible for the costs of the work. (See Dil. Munic. Corp., § 648; Cummings vs. Mayor of Brooklyn, 11 Paige C. R., 596; Fisher vs. City of St. Louis, supra; Wetmore vs. Campbell, supra.)

J. T. Baldwin, with Doniphan & Reed, for Defendant in Error.

I. The street improvements, for which the plaintiff in error attempts to recover in this action, were made or pretended to be made in pursuance of sections 4 and 5 of “An Act to amend the charter of the city of Saint Joseph,” approved February 8th, 1865. (Rev. Laws and Ord. City of St. Jo. Mo., 1869, pp. 47, 48.) Said improvements were not ordered in the mode prescribed by charter, i. e. by ordinance, but by resolution, which was a nullity. (Saxton vs. Beach, 50 Mo., 488.) The cost of such improvements is clearly required to be assessed against the property benefited; and the City of St. Joseph is expressly exempted by charter from any liability whatever for any work done, which is to be paid for as provided in said § 5, which is the only mode prescribed for the payment of macadamizing, guttering, etc. Had the council attempted to bind the city, by contract, to pay for such work out of the general fund, such act would have been ultra vires. How then can the city become impliedly liable upon a quantum meruit? (18 Wis., 228; 2 Kas., 370; 1 Dil. Munic. Corp., § 381.)

II. Assumpsit may be maintained against a municipal corporation in certain cases upon an implied promise; but the better opinion is that a promise to pay can never be implied where the corporation has no power to contract. (1 Dil. Munic. Corp., §§ 384, n. 1; 386, n. 1; 31 Ia., 381; 13 Pick., 343; 14 Me., 25; 30 Me., 157, 160; 13 Me., 293: 13 Gray, 347.) Where the corporation orders local street improvements to be made, for which the abutters are the parties ultimately liable, and which, by the charter, must be made by a prescribed mode, if made without any contract, or without a valid one, the doctrine of implied liability does not apply in favor of the contractor, unless indeed the corporation has collected the amount from the adjoining owners and has it in the treasury. (1 Dil. Munic. Corp., §§ 383, 384; 16 Cal., 255; 2 Cliff. C. C., 590, 596; 12 Wall., 1; 2 Black, 478.)

III. Where a statute creates a liability which did not before exist, and gives a special remedy to enforce it, that remedy and not a common law remedy, must be pursued. (17 Ind., 169; 35 Mo., 334; 2 Dil. Munic. Corp., §§ 653, 656, 759, 784; 43 Me., 322; 5 Ohio St., 20; 6 Mass., 40; 1 Met., 130; 14 Iowa, 296.)

IV. Municipal corporations are liable for acts done in what is known as their private or corporate character, or from which they derive some special or immediate emolument; but not as to those done in their public capacity as governing agencies in the discharge of duties imposed for the public good or general benefit. (2 Dil. Munic. Corp., §§ 764, 765; 44 Mo., 479.)

V. Where the charter or incorporating act requires the officers of the city to award contracts to the lowest bidder, a contract made in violation of its provisions or requirements is illegal; and in an action brought on such contract for the work, the city may plead its illegality in defense. (1 Dil. Munic. Corp., § 388, and n. 1; 48 Mo., 17.)

VI. A person entering into a contract with a municipal corporation, for the performance of work on the streets thereof, to be paid by assessment on the district benefited, is bound at his peril, to examine the records, at the city clerk's office, to see whether the preliminary steps, required by the charter, have been taken. (24 Barb., 427; 2 Kas., 357; 12 Mich., 279; 16 Ind., 13; 1 Dil. Munic. Corp., §§ 401, 402; 13 Ind., 245.)

HOUGH, Judge, delivered the opinion of the court.

The question presented by this record for our determination, is the sufficiency of the following petition:

“Plaintiff states that defendant is now and has been for ten years last past, a municipal corporation, in the State of Missouri, organized under and by virtue of the laws of the State of Missouri, and that said defendant, by virtue of its charter and laws, has and has had power by ordinance to macadam, pave, curb, gutter, and otherwise improve the streets of said city; that about February, 1868, said defendant ordered the city engineer of said city to let out contracts for macadamizing, guttering, paving and curbing Sylvania street, from 8th street to the alley between Twelfth and Thirteenth streets in said city, and ordered by a resolution of said city council, said street to be macadamized, paved, curbed and guttered; that in obedience to said order, the city engineer of defendant, and in pursuance of said order, contracted with Peter Young and Frank Oberdorf to do said work, and who went on under their contract, to perform the said work in said contract mentioned, and completed the same about the first day of March, 1868, and which said work was accepted by said engineer, in discharge of said contract; that one James T. Beach and Sarah Beach, at the time said work was done, were and still are the owners of lot 8 in block 25 in Smith's addition to the city of St. Joseph, Missouri, and said lot fronts on Sylvania street, between 8th and the alley between 12th and 13th streets in said city; that under the charter of said defendant and its ordinances, the cost of doing the said work was to be assessed on the lots, fronting on said street, in proportion to the front foot, etc.; that after said work was done, defendant's engineer assessed the cost of said work against said lot including cost of alley and street crossings at $433.00 altogether, and made his bills to that purport, and which said bills from their date, about March 1, 1868, bear interest at fifteen per cent. per annum, and delivered the same to said Young and Obendorf; that they, about May, 1868, assigned all their interest in said claims and demands to plaintiff. Plaintiff further says that about July, 1868, he commenced a suit in the Buchanan Circuit Court, afterwards by change of venue prosecuted in the Buchanan Court of Common Pleas, Missouri, against the said Beach, to recover judgment on account...