State ex rel. Connor v. The City of St. Louis
| Decision Date | 12 November 1900 |
| Parties | STATE ex rel. CONNOR et al. v. THE CITY OF ST. LOUIS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed.
B Schnurmacher and Chas. Claflin Allen for appellants.
(1) The City of St. Louis, by virtue of its charter, has authority to pave or otherwise improve its sidewalks, and to provide for the payment of the cost thereof by special assessment against the abutting property. Charter, art. 3, sec. 26, clause 2; art. 6, sec. 18. And the city may enter into annual contracts with a public contractor for the construction and reconstruction of such sidewalks. Charter, art. 6, sec. 15; R. O. 1892, sec. 1372. (2) Mandamus will not lie to compel an inferior tribunal or quasi-judicial body to give a particular judgment. County Court of Callaway Co. v Inhabitants, 10 Mo. 679; Dunklin Co. v. District Court, 23 Mo. 449; State ex rel. v. Lafayette Co. Court, 41 Mo. 221; State ex rel. v. Byers, 67 Mo. 706; State ex rel. v. Young, 84 Mo. 90. (3) Mandamus will not lie to review official acts which require the exercise of judgment and discretion. State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. State Board of Health, 103 Mo. 222; State ex rel. v. Oliver, 116 Mo. 188.
Edward J. O'Brien for respondents.
(1) To hold that the board may grant a permit to one or more abutting owners, on a line of proposed sidewalk construction, and refuse it to others similarly situated, is not reasonable; that it can not be so, we think, does not admit of doubt. Yet that is precisely what the appellants claim the board can do; in other words, the members of the board may discriminate and make right to depend on favor instead of law. That is absurd. We have in this case an apt illustration of the wrong springing from such a discretion, if it be such. These local street improvements in St. Louis do not reach the ordinance stage until much detail work and delays are previously had under section 14, art. 6, of the charter. Then, when it becomes an ordinance in due course, much more time is consumed. To the freeholder wanting to improve his property frontage these delays are very annoying, and frequently injurious. But, when the ordinance is passed, and apparently nothing remains except to do the work, he finds, as did the relators herein that he is not allowed to do it himself, because another element, viz: -- an "annual contractor" -- has supervened, being put forward by the board to do the work apparently whenever the annual contractor chooses to do it, without regard to the wishes of the person chargeable with its payment. Nearly five months were permitted to pass after the approval of Ordinance 18868 before relators asked the court for relief herein, and during all that time the city failed to take any action to carry out this improvement; on the contrary, the city officers in charge impeded the carrying on of the work by refusing the permit in that time. (2) We deny the board's discretion in this matter. However, if it were discretionary, the result must be the same, as whenever the court finds a case where officials are derelict and unreasonable in performing their duties, thus abusing a discretion they might otherwise exercise, such acts, under such circumstances, will be rectified and controlled by mandamus. State ex rel. v. Board of Health, 103 Mo. 22; State, etc., v. County Court, 41 Mo. 221; State, etc., v. St. Louis Public Schools, 134 Mo. 296.
VALLIANT, J. Marshall, J., not sitting, having been of counsel.
Appeal from the judgment of the circuit court of the city of St. Louis awarding a peremptory writ of mandamus, commanding the city and its board of public improvements to issue a permit to relators to construct a sidewalk in Easton avenue, a public street in the city, in front of their property.
It appears from the record that in 1897 the city passed an ordinance requiring the board of public improvements to cause to be constructed a granitoid sidewalk on Easton avenue between Marcus avenue and Kings highway according to certain specifications, the work to be done by the contractor having the annual contract with the city for such work, and providing in the usual way of such ordinances for the payment of the same by special tax bills issued against the abutting property.
At the time this ordinance was passed there was a provision in the general ordinances (section 569, Revised Ordinances 1892) in these words: "Whenever the municipal assembly shall direct by ordinance the improvement of a public street or avenue, the board of public improvements may, upon the application of the owner of any property fronting or bordering such improvement, grant permission to such owner to construct the sidewalk in front of such property, but without such permission no sidewalk shall be constructed by any person other than the contractor having the annual contract for constructing new sidewalks."
There was also in force at the time another general ordinance, section 1372, Revised Ordinances 1892, requiring the board of public improvements to let a contract annually "for the grading, constructing, reconstructing and repairing of sidewalks, and for the repairing of street and alley and gutter paving, and such other similar work as may be ordered by ordinance, or which may become necessary to be done during the year." This ordinance was adopted in conformity to the provision in section 15, article 6 of the city charter authorizing it. Under that ordinance such a contract had been let to Stifel and Ruckert for the year covering the events in question and was in force. It was specified in the contract that it was subject to the city charter and ordinances in general.
The relators own property abutting that street where the sidewalk in question was to be constructed and as such petitioned the board of public improvements for permission to construct that much of the sidewalk which would be in front of their property. The board refused to grant the permission and this proceeding is to compel them to do so. The circuit court awarded the peremptory writ as prayed and the defendants appeal.
That the sidewalk is a part of the street owned and controlled as such by the city, that the city had ample authority to pass the ordinance requiring the sidewalk to be constructed and the cost charged against the abutting property as therein provided, that the contract with Stifel and Ruckert was authorized and valid, are propositions about which there can be no conflict of opinion. The authority of the city over this subject has been so recently expounded by this court that we deem it unnecessary to further discuss that subject. [Skinker v. Heman, 148 Mo. 349, 49 S.W. 1026.]
But the point of difference between the parties to this suit arises out of their respective constructions of section 569, above quoted. Relators are advised that under that section they have the right themselves to construct the sidewalk and that the board of public improvements have no discretion in the matter, no authority to refuse the permission therein provided for, but, in the discharge of a ministerial function only, are in duty bound to issue the license when demanded.
The words with which we have especially to deal are: "The board of public improvements may upon the application of the owner . . . . grant permission to such owner to construct the sidewalk in front of such property, but without such permission no sidewalk shall be constructed by any person other than the contractor having the annual contract," etc.
The contention of the relators is that the word 'may' is to be interpreted 'shall,' and that is the only point in their case. If the board of public improvements had no discretion in the matter, if there is nothing in such case for them to exercise their judgment upon, nothing that the lawmakers framing that ordinance could have contemplated as likely to arise in the multitude and variety of cases coming within its scope calling for a sound judgment, which might lead to the granting such application under some circumstances and refusing it under others, then the relators' interpretation of the ordinance is correct. But if the framers of the ordinance having in mind the general plan of...
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