Steffen v. The City of St. Louis

• Decision Date: 16 June 1896
• Citation: 36 S.W. 31,135 Mo. 44
• Parties: Steffen v. The City of St. Louis, Appellant
• Court: Missouri Supreme Court

36 S.W. 31

135 Mo. 44

Steffen v. The City of St. Louis, Appellant

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

W. C Marshall for appellant.

(1) The referee and circuit court erred in holding that the plaintiff is entitled to recover any amount whatever from the city of St. Louis, under his petition, and the evidence in the case. Persons dealing with municipal officers must ascertain, at their peril, that such public agents are acting strictly within the sphere, limited and prescribed by law, or the city will not be liable. Cheeney v. Brookfield, 60 Mo 53; Mister v. Kansas City, 18 Mo.App. 217. (2) Powers must be exercised by the municipal officers, and in the manner provided by the organic law, or the city will not be liable. Thompson v. Booneville, 61 Mo. 282; St. Louis v. Clemens, 52 Mo. 133. (3) A city is not liable for work ordered by a supervisor, where the contract does not provide for such work. Leathers v. Springfield, 65 Mo. 504; Louisiana v. Miller, 66 Mo. 467. (4) Officers of a city have such powers, and only such, as are conferred on them by the charter. Their authority is to do certain things, under certain conditions and in a certain manner; and they can act only in that manner, and in the presence of such conditions. Forry v. Ridge, 56 Mo.App. 615. (5) Where officers have not the power to make a contract in the beginning, they are powerless afterward to ratify any contract not entered into according to the organic law. 1 Dillon, Mun. Corp., sec. 495; Maupin v. Franklin County, 67 Mo. 330; Johnson v. School District, 67 Mo. 319; McKissock v. Mt. Pleasant Township, 48 Mo.App. 416. (6) Contracts entered into, or acts done by a municipal officer without express authority of the organic law, are not binding on the city, and can not be afterward ratified. Perkinson v. St. Louis, 4 Mo.App. 322; Carroll v. St. Louis, 4 Mo.App. 191; Thrush v. Cameron, 21 Mo.App. 394; Saxton v. St. Joseph, 60 Mo. 153; Keating v. City of Kansas, 84 Mo. 415. (7) The referee and circuit court erred in holding that plaintiff was entitled to recover for items 1, 2, and 3. (8) The referee and circuit court erred in holding that the plaintiff was entitled to recover for items 5, 6, 8, 9, 10, 11, 12, and 13. (9) The referee and circuit court erred in holding that the plaintiff is entitled to recover for items 4, 7, and 15. (10) The referee and circuit court erred in holding that plaintiff is entitled to recover for item 14. This item is for sifting granite. Plaintiff claims it was done to try an experiment. The street commissioner denies this. Mr. Knapp, the inspector, says it was because the granite contained dust and dirt. The referee finds that the plaintiff is mistaken in supposing that it was done to try an experiment.

Alex. Young and C. H. Krum for respondent.

(1) This is an action at law, and the finding of the referee is conclusive on the facts. (2) This is a case where the contract made was entered into by the board of public improvements by the authority of the charter, and an ordinance passed in conformity with the charter. It is a contract whose enforcement, as far as the city is concerned, depended upon the street commissioner. It was his duty to see to the enforcement of the contract. The work, by the terms of the charter and of the contract, was exclusively within his own charge. No other official of the city was authorized to interfere with him in the course of the construction of the work, unless the board of public improvements, for want of means or some other substantial cause, directed a suspension of the work upon the notice required by the charter. Where a contract is made by a municipal assembly by authority of an ordinance passed in conformity with its charter, the obligations of the corporation do not differ in any essential respect from the obligations of an individual who has simply contracted with some other individual. The authority existing for the contract, and the contract having been made in conformity with that authority, the city acts through its agents, who are its officers, and is responsible for their misconduct, just as fully, just as clearly, and to the same extent as would be an individual under the same circumstances.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action against the city of St. Louis on a contract for the construction and reconstruction of sidewalks within a designated district.

The contract was entered into July 22, 1890, under ordinance number 15109, approved July 3, 1889, by and between plaintiff Steffen on the one hand and the city on the other by the president of the board of public works, and countersigned by the comptroller. By the contract plaintiff obligated himself to do the work of constructing sidewalks with artificial stone flagging, and repairing sidewalks with brick within the district bounded north by Franklin avenue, south by Clark avenue, west by Twelfth street, and east by Third street for a term ending July 1, 1891. This contract was made in pursuance of a public letting by the board of public improvements and required plaintiff to do said work "whenever and wherever directed by the street commissioner." The contract was made in conformity to article 6, section 15, of the scheme and charter of St. Louis.

An itemized account accompanied the petition showing the details of the work done.

The answer was as follows: "Now comes said defendant and for answer to plaintiff's petition, admits that it entered into an agreement set out in plaintiff's petition, on, to wit, the twenty-second day of July, 1890. Further answering defendant denies each and every other allegation in plaintiff's petition contained. For further answer and defense this defendant says that it s provided by the seventh section of the general stipulations of said contract that this defendant should have the right, on ten days' notice, to suspend or stop the work contemplated by said contract without cost to or claim against the city of St. Louis. That pursuant to said power the board of public improvements of the city of St. Louis, with the approval of the mayor, did order the plaintiff to stop work under said contract, but that the said plaintiff was paid, in full, for all work and labor done and materials furnished up to the time of the stopping of said work."

To this answer respondent filed a reply by way of general denial.

The cause was referred and the referee in due time made his report and recommended a judgment for plaintiff for $ 2,362.92, with interest at six per cent from the commencement of this suit.

The defendant moved to set aside the referee's report but its exceptions were overruled and judgment rendered as recommended by the referee.

The facts will be best noted in the further consideration of the errors assigned by the city counselor.

I. Jurisdiction of this court to determine this appeal is conferred by that provision of the constitution which originally provided for an appeal to this court from the St. Louis court of appeals in cases where a county or other political subdivision of the state is a party to an action (art. 6, sec. 12, Constitution of Missouri, 1875), and the subsequent amendment adopted in 1884 whereby such appeals were made reviewable by direct appeal to this court. Sec. 5, of Constitutional Amendment of 1884, Laws, 1883, p. 215; St. Louis v. Robinson, 55 Mo.App. 256; Kansas City v. Neal, 122 Mo. 232, 26 S.W. 695; Northcutt v. Eager, 132 Mo. 265, 33 S.W. 1125.

II. The action is at law and the referee's finding of facts has the effect of a special verdict, and when there is substantial evidence to support it, it is conclusive as to the facts, but his conclusions of law, if erroneous, may be set aside and the law properly applied to the facts found by either the trial or appellate court. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gamble v. Gibson, 83 Mo. 290; Lingenfelder v. Brewing Co., 103 Mo. 578.

We proceed then to examine the errors of law assigned by defendant.

Grouping the items according to the plan employed by the referee in his report, the first group for consideration is composed of items 5, 6, 8, 9, 10, 11, 12, and 13, amounting to $ 195.42. The referee found that the separate bills presented by the respondent for these items were all approved by the street commissioner. It is now...