Town of Trenton v. Coyle

• Decision Date: 23 November 1891
• Citation: 17 S.W. 643,107 Mo. 193
• Parties: Town of Trenton, Appellant, v. Coyle
• Court: Missouri Supreme Court

17 S.W. 643

107 Mo. 193

Town of Trenton, Appellant, v. Coyle

Supreme Court of Missouri, First Division

November 23, 1891

October, 1891

Appeal from Grundy Circuit Court. -- Hon. G. D. Burgess, Judge.

Affirmed.

O. M Shanklin and W. W. Witton for appellant.

(1) The petition of plaintiff states facts sufficient to constitute a cause of action against defendant. (2) The charter of the town of Trenton authorizes the passage of the ordinance mentioned in plaintiff's petition. (3) The tax authorized by the ordinance mentioned in the petition of plaintiff is constitutional and valid. (4) The charter of plaintiff and the ordinance mentioned in plaintiff's petition are constitutional and valid. (5) Plaintiff's petition sufficiently shows that its council did levy the special tax against defendant in pursuance to the ordinance mentioned therein. (6) The council of plaintiff acted only upon matters fairly submitted to it.

Harber & Knight for respondent.

(1) The council of the town of Trenton had no power or authority to levy or collect taxes for special purposes, or to macadamize its streets at the expense of private citizens, except by the passage of an ordinance in pursuance to its charter, and the charter of appellant, "its power of attorney," required the passage of an ordinance, a legislative act by the mayor and councilmen to accomplish these objects, and it could not by a mere order or resolution do what the charter pointed out to be done in another specific way, viz., by ordinance. Laws, 1872, art. 3, sec. 1, p. 481; Cape Girardeau v. Tongen, 30 Mo.App. 551; Mfg. Co. v Inhabitants, 21 Mo.App. 175; Stewart v. Clinton, 79 Mo. 603; Werth v. Springfield, 78 Mo. 187; State ex rel. v. Garroute, 67 Mo. 445. (2) The appellant's charter is a grant of powers and must be construed strictly. 30 Mo.App. 358; Dillon on Mun. Corp. [2 Ed.] sec. 251.

OPINION

Brace, J.

This is an appeal from the judgment of the circuit court sustaining a demurrer to plaintiff's petition.

The petition sets out the incorporation of the plaintiff by an act of the general assembly approved March 9, 1872 (Laws, 1872, p. 478), by which authority is given to the town of Trenton, by ordinance, to levy and collect taxes for general or special purposes and to establish, open, alter, extend, grade, pave or otherwise improve all streets in said town; and, then, it is therein alleged, that in pursuance of such authority ordinance number 46 was duly passed, in which it was provided that: "Whenever the owners of two-thirds of all the real estate fronting both sides of any street or avenue, for any specified distance, not less than one block, on any street or avenue, shall petition the town council in writing to have such street, avenue or such portion thereof graded and macadamized, the council shall order the same done, and shall also levy a special tax for the payment thereof, on the real estate fronting said street, avenue or portion thereof proportionate to the extent of the respective fronts."

That afterwards the owners of two-thirds of the property fronting on both sides of Water street in said town presented to the town council their petition in writing, asking that said street between Trenton avenue and the north side of East street be macadamized; that thereupon it was by the council "ordered" that the petition be granted; "and that in addition to six inches of macadam there be added three inches of coarse sand or gravel the same to be taxed against property fronting along said street;" that thereupon a contract for macadamizing said portion of said street was duly let, at the price of sixty cents per square yard, at which price it was duly macadamized by the contractors; that at the time said petition was...