Strassheim v. Jerman

• Decision Date: 31 March 1874
• Citation: 56 Mo. 104
• Parties: JACOB STRASSHEIM, Respondent, v. OCTAVIA E. JERMAN, Appellant.
• Court: Missouri Supreme Court

56 Mo. 104

JACOB STRASSHEIM, Respondent,

v.OCTAVIA E. JERMAN, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

S. N. Taylor & Hamilton Moore, for Appellant.

I. Special ordinance No. 6,583, fails to specify the time within which it should be performed. Time is of the essence of contracts of this character.

Fixing the time is a part of the legislative power, can only be exercised by the City Council, and cannot be delegated. (See Ruggles vs. Collier, 43 Mo., 365; Thompson vs. Schermerhorn, 6 N. Y., [2 Seld.,] 92; City of East St. Louis vs. Wehrung, 50 Ill., 28.)

II. An ordinance can have no retrospective operation upon a previous contract entered into for building sewers or improving streets. (St. Louis vs. Oeters, 36 Mo., 456; Howard vs. Corporation of Savannah, Charlt., 173.)

E. C. Kehr, for Respondent.

I. Ordinance 6,583 will admit of but one construction as to the time when the work was to be done; it instructs the City Engineer to cause it to be done i. e., to have it done forthwith. (Sheehan vs. Gleeson, 46 Mo., 101; § 1, Art. 3, Ordinance No. 5,399.)

II. By ordinance 6,962 the council merely re-affirmed contracts previously and validly made, to which there can be no objection. The amendatory ordinance is valid. (City to use of Fox vs. Schoeneman, 52 Mo., 348.)

III. Respondent having proved the execution and delivery to him of the special tax bill, had made out a prima facie case.

SHERWOOD, Judge, delivered the opinion of the court.

Action on a special tax bill for curbing, guttering and macadamizing Caroline street and paving the cross-walks thereof, in front of the property of defendant, situate in city block No. 1,275. An ordinance, No. 6,583, was approved July 3rd, 1868, by the first section whereof the city engineer was ““authorized and instructed to cause” said street between two given points, “to be graded, curbed, guttered, macadamized and the cross-walks and side-walks to be paved.” The contract for the performance of the above mentioned work was entered into July 31st, 1868, and the dimensions and manner of such work were duly set forth therein; the grading to be paid for by the city, and the residue of the work by speial tax-bills assessed against property owners. Before however, any of such work constituting a charge against such owners was performed, the city by a supplementary ordinance No. 6,962 approved June 29th, 1869, amended ordinance No. 6,583 and a number of others of like sort. The amendatory ordinance declared all contracts yet remaining unfulfilled, which had been made under such former ordinances, valid and binding, upon condition that the contractors would file their written acceptance of such amendatory ordinance with the city engineer, &c.,--as was done in the present case,--on the 10th of July, next succeeding the passage of the ordinance referred to. By the terms of her charter (§ 9, p. 73, Laws 1867,) the city was empowered through her council, * * * * * “to cause the construction * * * * * of all streets, alleys and public highways within the city, at such time and to...