Sheehan v. Gleeson

• Decision Date: 31 March 1870
• Citation: 46 Mo. 100
• Parties: JOHN SHEEHAN, Plaintiff in Error, v. JAMES M. GLEESON, Defendant in Error.
• Court: Missouri Supreme Court

46 Mo. 100

JOHN SHEEHAN, Plaintiff in Error,

v.JAMES M. GLEESON, Defendant in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Circuit Court.

Thomas Grace, for plaintiff in error.

I. The only issue presented by the pleadings to the court, and which the plaintiff had to prove was whether the tax-bill sued on

was genuine; did it bear the genuine signature of the city engineer? This fact having been proved in the affirmative, the taxbill became and was, under the law, prima facie evidence of the plaintiff's right to recover. (Sess. Acts 1867, p. 74, § 11; Sess. Acts 1866, p. 302, § 5; Sess. Acts 1863, p. 76, § 4; City, to use of Creamer, v. Oeters, 36 Mo. 463; City, to use of Lohman, v. Coons, 37 Mo. 48; City, to use of Stadler et al., v. Armstrong, 38 Mo. 33; City, to use of Creamer, v. Bernoudy, 43 Mo. 554.)

II. Ordinance 6140 is not invalid. It is good as far as it goes, and in conformity with the city charter.

III. Defendants insist that ordinance No. 6140, although it may be valid as far as its provisions extend, yet conferred no authority to do the work, because it failed to specify the time within which the work should be done, the dimensions of the street, the material to be used, and the manner and general regulations to govern the engineer in the construction of the street. (Sess. Acts 1867, p. 62; Art. 4, City Charter.) All the particulars regarding the time in which the work should be done, the dimensions of the street, the material to be used, the manner of doing the work, etc., need not encumber each special ordinance. It conduces to convenience and is competent for the city council to provide the material to be used, the manner of doing the work, and general regulations governing the city engineer, by general ordinance, applicable alike to this as to other streets.

Ewing & Holliday, for defendant in error.

I. The cases of Ruggles v. Collier, 43 Mo. 353, and City, to use of Murphy, v. Clemens, Jr., 43 Mo. 395, are not distinguishable in principle from the present case. There is not a word in the ordinance as to the manner in which the work shall be done. It is all left to the engineer and general ordinances. The plaintiff sought refuge in general ordinances not referred to in the petition. If the plaintiff claim a right under ordinance, he must refer to the ordinance by its title and number, or he can not introduce it in evidence. There was not a particle of evidence offered by plaintiff to show that the limestone used was of the best description of stone that could be procured in the vicinity of the city, in the opinion of the city engineer.

II. The court should hold in this case that when the charter provides that “such grading and paving to be done in manner to be prescribed by ordinance,” the city council shall not delegate the “manner” to the city engineer.

BLISS, Judge, delivered the opinion of the court.

This suit is upon a special tax-bill issued by the city engineer of St. Louis to the plaintiff to recover part of the costs of curbing, guttering, macadamizing, and laying crosswalks opposite defendant's property on Wright street, in the new limits of the city. By section 10 of the revised charter of 1867 (Sess. Acts 1867, p. 73) it is provided that “the cost of paving, macadamizing, guttering, crosswalks, and curbing of the carriageways, intersections, and sidewalks of all streets,” etc., “shall in all cases, except,” etc., “be paid by the owners of the property in the vicinity of the works,” etc. Section 11 provides that the “city engineer shall compute the cost and assess it as a special tax against the property fronting on the work, make out a bill of the assessment, and shall deliver it to the contractor for the work, who shall collect it by suit; and that, in any action brought to recover the amount thereof, such certified bill shall be prima facie evidence that the work and material charged in such bill have been furnished, and of the liability of the persons therein named as the owners of such property.” The same act provides by section 9 that the construction of streets, as to their extent, dimensions and material, shall be had in such manner as shall be provided by ordinance; and by section 14, the council shall cause the “grading, paving, or macadamizing to be done in such a manner as shall be prescribed by ordinance.”

It will be thus seen that the assessment made for the plaintiff by the engineer furnishes much of the evidence required in the first instance. The contract is not disputed, and the record shows the following ordinances, to-wit: Ordinance 6140, the first two sections of which are as follows:

“SEC. 1. The city engineer is hereby authorized and instructed to cause Wright street, from Fourteenth to Sixteenth streets, to be graded, curbed, guttered, macadamized, and the crosswalks and sidewalks to be paved.

SEC. 2. The cost of the curbing, guttering, macadamizing, and of paving the crosswalks, shall be assessed as a special tax against the owners of the ground fronting upon said street, according to law.”

Also sections 14, 25, and 26 of general ordinance 5399, concerning the engineer department, as follows:

“SEC. 14. All curbstones or curbings set upon any street, avenue, or other highway, except on First street or the wharves, shall not be less than four inches in thickness on the front edge or top, and shall be set in the ground at least twelve inches below the surface of the pavement.”

“SEC. 25. All broken rock to be hereafter spread on the surface of any alley or highway in the city of St. Louis shall be of the best description that can be procured in the vicinity of the city, which, in the opinion of the city engineer, is best adapted to such purposes; and they shall be broken so that the largest will pass through a two and a half inch ring in all of their diameters.

SEC. 26. All paving stones hereafter to be used for paving with stone on edge any street or any principal alley within the business part of the city through which heavy carts have to pass, shall be of the best quality that the vicinity of the city affords; and they shall be dressed on the top sides and end faces, so as to make close joints throughout and a full and square bottom; and the stone shall have a bed...