Wagner, Judge,
delivered the opinion of the court.
This was an action brought in the St. Louis Circuit Court to enforce the payment of a special tax bill issued by the St. Louis city engineer under a street-paving contract.
The petition sets forth, in substance, that the defendants are the proprietors of a lot in block No. 11 in St. Louis, fronting on the south upon Olive street, and on the west upon Commercial street. The petition also sets out verbatim the nineteenth section of an ordinance entitled “An ordinance establishing and regulating the engineer department,” approved August 5, 1864. The [364]*364section is in the following words: Sec. 19. In that portion of the city bounded on the north by the north side of Carr street, on the west by the east side of Ninth street, on the south by the south side of Poplar street, and on the east by the Levee, the mayor is hereby authorized to cause the carriage-ways of the streets thereof to be repaved with wooden pavement wherever and whenever he shall deem it necessary; and he may instruct the city engineer to cause any street or portion of street within the above described limits to be so repaved under the contract, which shall be let out in the usual manner.”
The petition then states that the city engineer, acting under the authority of said ordinance, entered into a contract with the plaintiffs to repave Olive street and Commercial street in front of the property of the defendants and others; that the contract was submitted to and approved by the city council on the 14th day of June, 1867; that the work under the contract was done by the plaintiffs, and a special tax bill delivered to the plaintiffs against the defendants by the city engineer, amounting to $613, and that the defendants have refused to pay the same. The petition asks judgment for the said amount, with fifteen per cent, interest, and a special execution against the property chargeable with the lien.
The defendants appeared in the Circuit Court and filed a demurrer to the petition, assigning the following grounds : 1st. That the nineteenth section of the city ordinance set out in the petition was not authorized by the city charter, and was illegal and void. 2d. That the work done by the plaintiffs was done without authority of law or of any valid city ordinance.
The Circuit Court in general term sustained the demurrer, and, the plaintiffs declining to take leave to amend, the court rendered a final judgment for the defendants. The case is now brought into court by writ of error.
The material question arising is whether the nineteenth section of the city ordinance establishing and regulating the engineer department is comformable to the city charter. The act supplementary to the several acts to incorporate the city ofv St. Louis, approved March 5, 1855, and which was in force when the above ordinance was passed, provides, in section-3, that in those cases where'the [365]*365city council shall deem it necessary, and also in all cases where the owners of the major part of the lots or lands fronting on any paved street or portion of a paved street, or any paved alley or portion of a paved alley, may petition for repaving the same, the City council shall cause such repaving to he done in the manner prescribed by ordinance.”
The objection made by the demurrer and sustained in the court below was the invalidity of the ordinance under which the work was done; and the reasons given in support of that objection are that the nineteenth section amounted to a delegation to the mayoj of the legislative power of the council, and that consequently all the work of the contractors was done under the authority of the mayor alone, and not under the authority of the council.
The real test of all ordinances passed by an incorporated body is the intention of the Legislature in granting the charter. Corporations cannot make nrdinances contrary to their constitution. Mr. Justice Story says: “ When the corporation itself is pointed out as the proper functionary to execute a discretionary power, the true conclusion is, in the absence of all other provisions, that it must be solely exercised by the corporation at its legal meeting held for that purpose.” (Ex parte Winsor, 3 Story, 411-.)
There is a clear distinction to be observed between legislative and ministerial powers. The former cannot be delegated; the latter may. Legislative power implies judgment and discretion upon the part of those who exercise it, and a special confidence and trust upon the part of those who confer it.
The charter designates and prescribes two conditions upon which streets may be repaved: First, where the city council ■ shall deem it necessary; and secondly, where the owners or a major part of them owning lands or lots fronting on any paved street shall petition for the same. The natural and inevitable conclusion is, that it was the intention of the Legislature, in conferring the power, that the council should act, in determining this subject, in its legislative capacity. Indeed, the language will bear no other construction. I can percei.ve no authority whatever in the charter that would justify the council in referring to another [366]*366person or body the right to determine when the work of repaving should be done. The Legislature intended clearly to place the responsibility of determining the matter upon the city council, acting officially, when the initiatory steps were not taken by the property owners themselves. The-trust is one of great and peculiar importance, as the expenses of the improvements are by the law to be paid by the owners of the property. It is, in effect, a power of taxation, which is the exercise of sovereign authority; and ■nothing but the most plain and explicit language can induce or justify a court in holding that the Legislature intended- to confer such exorbitant power on the mere discretion of 'a single city officer. The charter not only contains no language from which the authority can be deduced, but to my mind it clearly expresses the intention of confining the exercise of the power to the city council, the members of which are elected by and responsible to those upon whose property they are thus^llowed to impose a tax. It ivas.no doubt with this view that the statute Avas passed, the Legislature deeming that the responsibility of each member to his constituents who were immediately interested in the work, and who had to bear the burdens, would be a check upon the improvident exercise of the poAver, and an inducement to the wise and discreet exercise of the legislative judgment of the council. But the nineteenth section of the ordinance is not only violative of the express and positive language of the statute, but it defeats the whole policy which Avas a primary consideration in its passage. That exercise of judgment, discretion, and care, which the persons most deeply interested had a right to expect on the part of those to whom they committed their important trust, perhaps on account of their peculiar fitness, is absolved and shifted, and placed in the mere discretion of a city officer.
There is nothing imperative on the mayor; he may act, or not, at his mere pleasure and caprice. It is easy to perceive that such a power might be susceptible of the greatest abuse, and the laAV has wisely Avithheld it.
There being no action taken by the council in which it Avas deemed necessary that the street in question should be repaved, nor any petition presented by the major part of the persons own[367]
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Wagner, Judge,
delivered the opinion of the court.
This was an action brought in the St. Louis Circuit Court to enforce the payment of a special tax bill issued by the St. Louis city engineer under a street-paving contract.
The petition sets forth, in substance, that the defendants are the proprietors of a lot in block No. 11 in St. Louis, fronting on the south upon Olive street, and on the west upon Commercial street. The petition also sets out verbatim the nineteenth section of an ordinance entitled “An ordinance establishing and regulating the engineer department,” approved August 5, 1864. The [364]*364section is in the following words: Sec. 19. In that portion of the city bounded on the north by the north side of Carr street, on the west by the east side of Ninth street, on the south by the south side of Poplar street, and on the east by the Levee, the mayor is hereby authorized to cause the carriage-ways of the streets thereof to be repaved with wooden pavement wherever and whenever he shall deem it necessary; and he may instruct the city engineer to cause any street or portion of street within the above described limits to be so repaved under the contract, which shall be let out in the usual manner.”
The petition then states that the city engineer, acting under the authority of said ordinance, entered into a contract with the plaintiffs to repave Olive street and Commercial street in front of the property of the defendants and others; that the contract was submitted to and approved by the city council on the 14th day of June, 1867; that the work under the contract was done by the plaintiffs, and a special tax bill delivered to the plaintiffs against the defendants by the city engineer, amounting to $613, and that the defendants have refused to pay the same. The petition asks judgment for the said amount, with fifteen per cent, interest, and a special execution against the property chargeable with the lien.
The defendants appeared in the Circuit Court and filed a demurrer to the petition, assigning the following grounds : 1st. That the nineteenth section of the city ordinance set out in the petition was not authorized by the city charter, and was illegal and void. 2d. That the work done by the plaintiffs was done without authority of law or of any valid city ordinance.
The Circuit Court in general term sustained the demurrer, and, the plaintiffs declining to take leave to amend, the court rendered a final judgment for the defendants. The case is now brought into court by writ of error.
The material question arising is whether the nineteenth section of the city ordinance establishing and regulating the engineer department is comformable to the city charter. The act supplementary to the several acts to incorporate the city ofv St. Louis, approved March 5, 1855, and which was in force when the above ordinance was passed, provides, in section-3, that in those cases where'the [365]*365city council shall deem it necessary, and also in all cases where the owners of the major part of the lots or lands fronting on any paved street or portion of a paved street, or any paved alley or portion of a paved alley, may petition for repaving the same, the City council shall cause such repaving to he done in the manner prescribed by ordinance.”
The objection made by the demurrer and sustained in the court below was the invalidity of the ordinance under which the work was done; and the reasons given in support of that objection are that the nineteenth section amounted to a delegation to the mayoj of the legislative power of the council, and that consequently all the work of the contractors was done under the authority of the mayor alone, and not under the authority of the council.
The real test of all ordinances passed by an incorporated body is the intention of the Legislature in granting the charter. Corporations cannot make nrdinances contrary to their constitution. Mr. Justice Story says: “ When the corporation itself is pointed out as the proper functionary to execute a discretionary power, the true conclusion is, in the absence of all other provisions, that it must be solely exercised by the corporation at its legal meeting held for that purpose.” (Ex parte Winsor, 3 Story, 411-.)
There is a clear distinction to be observed between legislative and ministerial powers. The former cannot be delegated; the latter may. Legislative power implies judgment and discretion upon the part of those who exercise it, and a special confidence and trust upon the part of those who confer it.
The charter designates and prescribes two conditions upon which streets may be repaved: First, where the city council ■ shall deem it necessary; and secondly, where the owners or a major part of them owning lands or lots fronting on any paved street shall petition for the same. The natural and inevitable conclusion is, that it was the intention of the Legislature, in conferring the power, that the council should act, in determining this subject, in its legislative capacity. Indeed, the language will bear no other construction. I can percei.ve no authority whatever in the charter that would justify the council in referring to another [366]*366person or body the right to determine when the work of repaving should be done. The Legislature intended clearly to place the responsibility of determining the matter upon the city council, acting officially, when the initiatory steps were not taken by the property owners themselves. The-trust is one of great and peculiar importance, as the expenses of the improvements are by the law to be paid by the owners of the property. It is, in effect, a power of taxation, which is the exercise of sovereign authority; and ■nothing but the most plain and explicit language can induce or justify a court in holding that the Legislature intended- to confer such exorbitant power on the mere discretion of 'a single city officer. The charter not only contains no language from which the authority can be deduced, but to my mind it clearly expresses the intention of confining the exercise of the power to the city council, the members of which are elected by and responsible to those upon whose property they are thus^llowed to impose a tax. It ivas.no doubt with this view that the statute Avas passed, the Legislature deeming that the responsibility of each member to his constituents who were immediately interested in the work, and who had to bear the burdens, would be a check upon the improvident exercise of the poAver, and an inducement to the wise and discreet exercise of the legislative judgment of the council. But the nineteenth section of the ordinance is not only violative of the express and positive language of the statute, but it defeats the whole policy which Avas a primary consideration in its passage. That exercise of judgment, discretion, and care, which the persons most deeply interested had a right to expect on the part of those to whom they committed their important trust, perhaps on account of their peculiar fitness, is absolved and shifted, and placed in the mere discretion of a city officer.
There is nothing imperative on the mayor; he may act, or not, at his mere pleasure and caprice. It is easy to perceive that such a power might be susceptible of the greatest abuse, and the laAV has wisely Avithheld it.
There being no action taken by the council in which it Avas deemed necessary that the street in question should be repaved, nor any petition presented by the major part of the persons own[367]*367ing property fronting thereon, the section in controversy must be held to be ultra vires and void.
It is contended by the counsel for plaintiffs in error that the ordinance may be sustained by virtue of the power given in the act authorizing and empowering the city engineer, under the control of the city council, to repair and keep in repair all streets and alleys in the city of St. Louis, and to this end cause all the necessary work to be done.
But this is evidently not the intention of the statute. The second section of the supplementary act authorizing the city engineer to cause repairing to be done specifies distinctly what work he shall be empowered to do, other than repairing in the first section. The third section, providing for repaving of streets, is a separate and independent section, and can only be made operative by the performance of one of the alternative precedent conditions contained therein. The act most clearly distinguishes between repairing the streets and repaving them; it uses the térms as distinct things, and makes separate provision for them. No special ordinance seems to be provided in case of -repairs. The city engineer is empowered by the statute itself with the duty of seeing that repairs are made, subject to the control of the city council; but repaving is not placed in the same situation.
It is also suggested that because the contract in question was afterward approved by the council, it ought therefore to be held good as done under the authority of the council. But this position is, I think, not tenable. It is certainly not sufficient to impart life or vitality to the contract made by the direction of the mayor, and which was wholly void at its inception. By the charter it appears .that every contract, although made in pursuance of a valid ordinance,’ is required to be submitted to and approved by the council before it is final and complete. This provision is obviously to hold a check and control over the officer making the contract, and to see that it is made conformably to law, but it cannot be made to avail the plaintiffs here.
With this view of the case, I think judgment should be affirmed.
The other judges concur.
R. M. Field, and H. A. Clover, for plaintiffs in error.
Tbe general proposition is admitted that legislative power conferred on a select body cannot be delegated by sucb body to other persons. But to determine tbe just application of tbis rule, reference must be bad to the nature of tbe power in question.- It is not enough that tbe particular power is conferred upon tbe legislative department. That does not necessarily make it a legislative power. In every constitution or charter establishing a national, state, or municipal government, there will be found to be a large mass of powers conferred on tbe legislative department that may be properly denominated administrative powers. Tbe execution of these powers is generally confided by tbe Legislature to tbe discretion of subordinate officers, under sucb regulations as tbe Legislature may see fit to prescribe.
Tbe distinction just pointed out was recognized and acted upon by tbe Supreme Court of tbe United States in Wayman v. Southard, 10 Wheat. 1. In that case it was contended that tbe provisions of tbe judiciary act authorizing tbe Supreme Court to prescribe by rule tbe manner of serving final process were unconstitutional, as amounting to a delegation of legislative power. Tbe point was overruled by tbe court. Chief Justice Marshall, in giving the opinion of tbe court, said: “It will not be contended that Congress can delegate to tbe courts, or to any other tribunals, powei's which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which tbe Legislature may rightfully exercise itself. Without going further for examples, we will take that, tbe legality of which tbe counsel for tbe defendants admit. Tbe seventeenth section of tbe judiciary act, and tbe seventh section of tbe additional act, empower tbe courts respectively to regulate their practice. It certainly will not be contended that tbis might not be done by Congress. Tbe courts, for example, may make rules directing tbe return of process, tbe filing of pleadings, and other things of tbe same description. It will not be contended that these things might not be done by the Legislature without the intervention of the courts ; yet it is not alleged that the power may not be conferred on the judicial department. The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the Legislature itself, from those of less interest in which a general provision may be made and power given to those who are to act under such general provision to fill up the details. The difference between the departments undoubtedly is that the Legislature makes, the executive executes, and the judiciary construes, the law; but the makers of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily.”