Windle v. City of Springfield

• Decision Date: 21 June 1928
• Docket Number: 26826
• Citation: 8 S.W.2d 61,320 Mo. 459
• Parties: I. Windle and Mary Windle v. City of Springfield, Appellant
• Court: Missouri Supreme Court

8 S.W.2d 61

320 Mo. 459

I. Windle and Mary Windle v. City of Springfield, Appellant

No. 26826

Supreme Court of Missouri

June 21, 1928

Transferred from Springfield Court of Appeals.

Affirmed.

Dan M. Nee and William B. Skinner for appellant.

(1) Every city of the second class shall have power by ordinance to construct sewers and drains and to regulate the use thereof, to care for and dispose of sewage, offal, garbage and other refuse and to establish sewer and storm sewer districts and to construct such sewers therein. Sec. 7976 pars. 11, 14, 29 and 72, R. S. 1919. (2) Municipal corporations are the mere creatures of the law, established for special purposes, and deriving all their powers from the acts creating them. The corporate acts must not only be authorized by the charter, but these acts must be done by such officers or agents and in such manner as the charter directs. St. Louis v. Clemens, 43 Mo. 404. (3) In applying the law to the acts of municipal corporations there is a clear distinction to be observed between legislative and ministerial powers. Legislative power implies judgment and discretion on the part of those who exercise it, and a special confidence and trust on the part of those who confer it. Ruggles v. Collier, 43 Mo. 353; Bigelow v City of Springfield, 178 Mo.App. 463. (4) The charter is the power of attorney granting a municipal corporation authority to act, and the manner prescribed in it must be strictly carried out, and unless the act complained of is shown to have been authorized by an ordinance, duly adopted, the municipality is in no manner responsible for the acts of its officers, agents or servants, who may have engaged in the commission of such act. Thomas v. Boonville, 61 Mo. 282; Worth v. Springfield, 22 Mo.App. 12, 78 Mo. 107; Hilsdorf v. St. Louis, 45 Mo. 94; Hunt v. Boonville, 65 Mo. 620; Stewart v. Clinton, 79 Mo. 603; Rowland v. Gallatin, 75 Mo. 134; Maudlin v. Trenton, 67 Mo.App. 456; Kroffe v. Springfield, 86 Mo.App. 530; Thrush v. Cameron, 21 Mo.App. 394; Jones v. Caruthersville, 186 Mo.App. 404. (5) The law requires that in constructing sewers and drains and in caring for and disposing of sewage the municipality must exercise its legislative power by passing an ordinance. After the ordinance is passed the act of the officers under it are ministerial. The ministerial power may be delegated; the legislative power cannot be. "The ordinance marks the authority, and acts wrongfully done within the scope of that authority will make the municipality liable, but in the absence of the authority the act of the individual who holds a ministerial office is no more than the act of that individual. The municipality, as a corporation, has not exercised the power which is necessary for it to exercise, in order that it may act at all." Bigelow v. Springfield, 178 Mo.App. 473. (6) A municipal corporation cannot accomplish by resolution that which under its charter can only be done by an ordinance, duly adopted. 2 McQuillin, Municipal Corps., sec. 633; Bigelow v. Springfield, 178 Mo.App. 471. (7) In order to hold a municipal corporation liable for an alleged negligent act, it devolves on the complaining party to show affirmatively that the act in question was authorized by such municipality, as provided by its charter. Stewart v. Clinton, 79 Mo. 603. (8) The ratification of an unauthorized act by a municipal corporation can only be accomplished, if at all, by an ordinance passed for that purpose. Koepen v. City of Sedalia, 89 Mo.App. 648; Reed v. Peck, 163 Mo. 333; Kolkmeyer v. City of Jefferson, 75 Mo.App. 678.

Fred A. Moore, E. J. McNatt and Hamlin, Hamlin & Hamlin for respondents.

Sec. 7976, pars. 11, 14, 29, and 72, and Secs. 8131, 8132, 8133 and 8134, R. S. 1919, when read together, grant to cities of the second-class the right, by ordinance, to establish, construct and regulate public, district, joint district, and private sewers for the disposal of sewerage. Public sewers are to be paid for by a general property tax, district and joint sewers by special tax bills, and private sewers by the parties constructing same. All this must be done by ordinance to be the act of the city. In the case at bar, the city is not charged with either establishing, constructing, or regulating the use of either a public district, joint district, or private sewer; but with causing one of its public sewers, duly accepted by ordinance, to be connected to a cave on appellant city's ground. There is nothing in the city's charter requiring that this act be done by ordinance. This was simply one of those many acts that a city may do by motion, as was done in this instance, under what is known as the public power or general welfare grant in the charter. Secs. 7979, 7980, R. S. 1919. In all the cases cited by the appellant to the effect that to be the act of the city, an ordinance must have been passed authorizing in the first instance or ratifying afterwards such act, the charter itself authorized such act to be done by ordinance. But that is not of the charter in this case. It nowhere specifically authorized the city by ordinance to cause a duly established and constructed public sewer to a cave. The city had the authority solely by virtue of the general welfare clause, supra, which does not specify that any act done under its authorization shall be by ordinance, and Section 7980, provides that the council may legislate by motion. If not originally authorized, it was certainly ratified by the city's act in using the connection to and into the cave to carry the sewerage of the city's public sewers. Soulard v. St. Louis, 36 Mo. 553; Dooley v. Kansas City, 82 Mo. 444; Foncannon v. Kirksville, 88 Mo.App. 284; Devers v. Howard, 88 Mo.App. 261.

OPINION

Walker, J.

This is a suit brought by a husband and wife, residents of Greene County, to recover damages for the pollution of a spring and lake on their land located in said county. It was tried in Lawrence County, presumably on a change of venue, and a judgment rendered in favor of the plaintiffs, from which the defendant prosecuted an appeal to the Springfield Court of Appeals, wherein the judgment of the Circuit Court of Lawrence County was reversed and remanded, and the case certified to this court on the alleged ground that the opinion rendered was in conflict with the case of Foncannon v. City of Kirksville, 88 Mo.App. 279, decided by the Kansas City Court of Appeals.

It is unnecessary to set forth the evidence. Its probative force was sufficient to authorize the finding by the jury that the pollution of the plaintiffs' spring and lake was due to percolations from a sewer connection installed by contractors employed by the defendant. The sole question demanding solution is the liability of the defendant, to be determined from its legal connection with the installation of this system of drainage which caused the contamination of the plaintiffs' water and their consequent injury.

The record of the proceedings of the City Council of Springfield shows that under the authority of that body the Commissioner of Streets and Public Improvements was authorized by a resolution to purchase and install and that he did purchase and install the sewer pipe through which the sewage from that section of the city was caused to flow upon and through the land belonging to the plaintiffs upon which the spring and lake were located. ...