Leach v. Cargill

60 Mo. 316

• Court: Supreme Court of Missouri
• Decided: May 15, 1875
• Status: Published

Opinion

Sherwood, Judge,

delivered the opinion of the court.

Action on two special tax bills for macadamizing, &c., a certain portion of Edmond Street, between 8th and 10th streets.

There are numerous points presented by the record, but attention will only be centered on one, as it is decisive of this ease.

It is well settled law in this State, as well, as elsewhere, that the power of the municipal authorities is exclusively confined to the limits prescribed by the charter, and such ordinances as are passed in conformity thereto. (Kiley vs. Oppenheimer, 55 Mo., 374, and cases cited.)

The ordinance of September 9th, 1870, requiring the work in question to be done, made special provision that the city engineer should give “ the owners of property fronting on said street the privilege of doing said work in front of their property.” This ordinance was a law equally as binding upon the city as upon the citizen; and there is no warrant whatever for the position assumed by plaintiff’s counsel, that the clause first quoted is merely directory. Such a construction would effectually fritter away all the rights of the citizen, as now secured both by charter and by ordinance, and leave them at the mercy of those, who, feeling themselves unfettered by any legal restraint, might not long hesitate in making a most improper and oppressive use of the power thus surrendered into their hands. '

These proceedings to compel the citizen to pay for improvements in front of his property, are proceedings in invit/wm, purely statutory, and therefore to be strictly construed. To enunciate any other rule than this would be to gravely announce the doctrine, that while the municipal law would be binding on the citizen, the representatives of the city could at pleasure disregard such law. No ruling'of this kind will therefore be made.

As the city engineer failed to comply with the ordinance referred to, by giving the property owners an opportunity to perform the necessary work,and as it is seen from the foregoing remarks, that such compliance was the only basis which would authorize a recovery, it must follow that plaintiffs action cannot be maintained. Nor can the mere advertisement in a newspaper for proposals to do the work required, be deemed an observance of the ordinance, since that notice was addressed not to those interested; but to a class who are on the lookout for such undertakings.

It is not denied that the city might- by ordinance provide that such advertisement should be tantamount to giving the owners the privilege of doing the work; but it is quite sufficient to say that in the present instance this was not done. The doctrine of constructive notice is altogether the creature of statutory enactment, and has no existence until it receives legislative recognition.

Judgment reversed and cause remanded ;

the other judges concur.