Gallaher v. Smith

Gill, J. Plaintiff, as contractor with the city of St. Joseph, constructed a second-class sidewalk on Sixteenth street in said city, and in front of five lots owned by defendant Smith. In payment the contractor received five special tax bills; and it was to enforce the same against defendant’s lots this action was brought. The trial court held the ordinance providing for the work, to be invalid, for the alleged reason that it is not therein provided of what materials the walk should be built, etc. From a judgment in defendant’s favor, plaintiff appealed. The special ordinance providing for the work ordered a second-class sidewalk to be constructed in the manner and of the material named in section 2 of general ordinance number 356. Said section 2 defines second-class sidewalks, and provides with much detail how they shall be built, demanding, among other things, that they shall be constructed of “plank four feet long, not less than six inches wide and two inches thick, sawn from sound pine, white or burr oak timber; shall be laid across and upon two sleepers of sound pine, white or burr oak scantling four inches in size and not [120] less than twelve feet in length, etc., and the space included between the stringers, sleepers or scantling and the property and roadway lines respectively shall be filled with cinders, broken stone, gravel, bluff, or other material approved by the city engineer,” etc. No question is made as to the character of the work done by the plaintiff — the walk was laid to the satisfaction of the city’s engineer, and tax bills were issued therefor. The contractor used pine lumber both for the stringers and the covering and filled in with “bluff” (which seems to mean clay or dirt taken from the hills.) The city of St. Joseph is a city of the second class, and its city council derives its authority for doing such work from section 1404, Revised Statutes 1889, and that portion which is necessary to be here quoted reads: “The common council shall have power to cause to be constructed, reconstructed or otherwise improved and repaired all * * * sidewalks * * * within the city, at such time and to such extent, and of such dimensions, and ivith such materials and in such manner, and under such regulations as shall be provided by ordinance,” etc. Prom the foregoing statement it will be seen that the ordinance directing the construction of the sidewalk in question is only complete by reference to the section of another general ordinance. Section 2 of such general ordinance becomes then as a part of the special ordinance. The case then stands as if the special ordinance ordering this particular work had directed the sidewalk in question to be constructed of “plank four feet long, not less than six inches wide and two inches thick, sawn from sound pine, white or burr oak lumber, and shall be laid upon and across two sleepers of sound pine, white or burr oak scantling four inches in size,” etc. [121] The ordinance ánd contract (which used"the same words in detailing the material to be used) clearly left it to the option of the contractor to use either pine or oak lumber in building the sidewalk. Was the ordinance for that reason void? In support of the judgment below, it is insisted that .the ordinance fails to designate the 'materials from which the walk was to be constructed, but left the decision of that matter with the contractor, thereby delegating the legislative powers of the common council to another. If counsel are correct in this assertion, then .clearly the ordinance is void; for it is a well settled principle of law that such legislative powers given to the municipal authorities by •the legislature cannot be delegated to another. But we cannot give our assent to the contention that there was such a delegation of legislative judgment as will avoid the ordinance. The council has not failed to designate the material. The ordinance, with much minuteness of detail, has prescribed the length, breadth •and thickness of the lumber, how laid and how ballasted, and then has in effect said to the contractor, “we are indifferent whether you use pine or oak— •either will answer.” The council has exercised its judgment and declared in effect that there ■ can be no ■choice between the two; and this is all that can be asked. The legislature entrusted the selection of the material to the wisdom and judgment of the council— to do in the matter as they thought best. It may be that, in the opinion of the council, pine and oak lumber were equally -good for the purpose, and that by allowing the walks to be constructed of one or the other material a larger competition in bidding would be •opened up, and the work therefore done at lower price. Legislative power implies judgment and discretion, it is true, upon the part of those who exercise it, and a special confidence and trust upon the part of those who [122] confer it. But it seems to us that here the council has,, according to its judgment, exercised that discretion,, and has in a manner best suited to its judgment, specified what materials may be used in the construction of the sidewalks to be built within its jurisdiction. While,, then, we yield to the abstract principles of law for which defendant’s counsel contend, we yet fail to see wherein they defeat the ordinance in question. This is quite a. different case from that of Galbreath v. Newton, 30 Mo. App. 380. The difficulty there was not in the failure-of the ordinance to name the material, but that the contract entered into by the city engineer went beyond the requirements of the ordinance, and permitted the substitution of one material for that named in the ordinance. We there held that the engineer had no such authority, and that he must conform his contract to the-ordinance. Neither is this a parallel case to that of Ruggles v. Collier, 43 Mo. 353, and others of like kind cited by counsel. In Ruggles v. Collier an ordinance of the city of St. Louis purported to leave it to the discretion of the mayor alone to improve streets within a. certain limit, when and where, and of such materials-, as he should think proper. This was held to violate-the city charter, as by the ordinance the city council had attempted to delegate to the mayor a discretion which the legislature had conferred on it and the mayor. Cases may arise where from the face of the ordinance it may appear that the council has abandoned the exercise of its judgment and discretion, and reposed the performance of its duties on another. When an instance-of that kind is presented it will be, doubtless, our-province to condemn it and declare the ordinance void. But we do not regard this as a case of that kind. We think the council, in the matter in hand, did exercise its judgment and discretion, and did not delegate it to-another. We thus remark in answer to the printed. [123] argument of defendant’s counsel wherein extreme cases are put — far beyond the facts appearing on this record. The judgment was for the wrong party. It will, therefore, be reversed and remanded to the trial court with directions to enter judgment in plaintiff’s favor for the amount of the tax bills, interest and costs. All concur.