City of Moberly v. Wight

Hall, J. Section 3 of Article IX, of the plaintiff’s charter provides as follows : ‘ ‘ The city council shall have power to have the streets and alleys opened and repaired, and the footways and sidewalks of the street paved at the expense of the owners and occupiers of the adjacent lots, and if any such owner or occupier fail to open, repair, or pave the same as required by ordinance, the city council shall cause the same to be put down, and may recover the full expense thereof from such owner or occupier by civil action, in the name • of the corporation before any court of competent jurisdiction, and if any tenant be required to open, repair, or pave in front of the property occupied by him, the expense thereof shall be a good set-off against so much of the rent due the owner, etc.” Section 1, of article III, of said charter provides that, “The city council shall have power within the city, by ordinance not inconsistent with the laws of this state * * * ; and to define whát acts shall constitute a misdemeanor.” The position of plaintiff is, that by section 3, of article IX of the charter, the plaintiff is empowered to order by ordinance that the work therein mentioned be done “ at the exuense of the owners and occupiers of the [272] adjacent lots;” that the remedy provided therein for the plaintiff in case of failure by the owner and occupier of any lot to do such work when so required to do it is not exclusive, but is additional; and that by section one, of article III, of the charter, the plaintiff, by her council, is authorized to, by ordinance, declare such failure on the part of the owner or occupier of any lot a misdemeanor, and to punish such failure as a misdemeanor. The manner provided by section three of article nine of the charter for the enforcement of its provisions is exclusive. The plaintiff under her charter can enforce those provisions in no other manner, nor by any other punishment than as provided by that section. 1 Dillon on Mun. Corp., sects. 273, 274; State v. Ferguson, 33 N. H. 424. The plaintiff contends that the manner thus provided for the enforcement of those provisions is invalid, because by it a personal judgment would be rendered against the owner or occupier of the property, which, under the constitution of this state, a judgment in rem against the property benefited only, can be rendered on account of local improvements such as provided for in said section of the charter. This court has no jurisdiction to pass upon the constitutionality of a law. But we cannot perceive any force in the appellant’s contention, if we admit for the sake of argument that the provisions authorizing a personal judgment are invalid. If that be true, then the plaintiff had no power whatever to order any such work. That section authorizes the plaintiff to have the work done “at the expense of the owners and occupiers of the adjacent lots,” and not at the cost of the property benefited. So that by that section, not only is a failure to comply with an ordinance in pursuance of its provisions enforced at the expense of the owners and occupiers of the lots, but the work is in the first place ordered to be done at their expense: If the power to enforce compliance with an ordinance ordering the work to be done is invalid for the reason given by the plaintiff, the power to order the work is invalid also. And the plaintiff cannot [273] be permitted to punish as a misdemeanor a failure on the part of one of her citizens to obey an order, which she had no right to make. The judgment in this case is affirmed. Ellison, J. concurs; Philips, P. J., absent.