King Hill Brick Manufacturing Co. v. Hamilton

Ellison, J. It [appears from the foregoing statement, that the ordinance and contract provided for the paving of Fifth street with vitrified brick; that instead of using such material there was substituted for one layer of brick a course of broken stone over a space of the street, sixteen feet wide and two thousand feet in length. And, instead of the paving being of the required depth over this space, it was three inches shallower. That this was a material departure from the contract and ordinance, and going to its [125] substance, is not debatable. That there must be a substantial compliance with the ordinance and contract in cases of this nature, is too well settled to admit of further question. Galbreath v. Newton, 30 Mo. App. 380; Bank v. Payne, 31 Mo. App. 512; Cole v. Skrainka, 105 Mo. 303. II. The plaintiffs undertake to avoid the effect of non-compliance, by showing that the change and substitution were approved by the city engineer. This fact will not aid them. The determination of what material streets shall be paved is'a legislative function belonging to the city council and which cannot be delegated. Galbreath v. Newton, supra; City of St. Joseph ex rel. v. Wilshire, 47 Mo. App. 125. Nor do we see any force in the suggestion that the changes from the ordinance were necessary in order to ponform to that portion of the street and paving to the street railway tracks. The contractor and city engineer had no right to take to themselves a power which resided only with the city council, no matter what might have been their judgment as to the necessities of the situation in which they found themselves. A total want of authority or power is not supplied' by what may be thought to be the exigency of a particular case. The judgment should be reversed. All concur.