W. H. Kolkmeyer & Co. v. City of Jefferson

Smith, P. J. — The council of the defendant, a city of the third class, deeming it necessary to macadamize two of its streets between certain designated [681] points, passed a resolution to that effect and caused the same to be published in conformity to the requirements of section 1498, Revised Statutes. The majority of the resident owners of the property liable to taxation for such improvement interposed no protest against the same. The city engineer submitted to the council an estimate of the cost of the proposed improvement, as required by section 1497, Revised Statutes. On September 1, 1891, the council, under the authority conferred by said section 1498, entered into a written contract with the plaintiff for the making of said improvement. It is conceded that the parts of said streets which the council had resolved should be macadamized had not been brought to the established grade. The plaintiffs could not perform their contract until this was done. The plaintiffs, under the direction of the street committee of the council, and the street commissioner of defendant, placed the quantity of macadam on said streets that was necessary to bring the same to grade. The contract was then performed and tax bills issued by the defendant to the plaintiffs for the cost of the entire improvement. The amount claimed for bringing the said streets to grade was added to the cost of the authorized improvement and thus apportioned among the abutting lots liable for the latter. The abutting lot owners declined to recognize the validity of such tax bills so issued, as well they might. Carthage v. Badgeley, 73 Mo. App. 123. The plaintiffs bring this suit to recover of the defendant for the macadam placed on said streets in excess of that required by the said estimate of the city engineer. [682] M]«)7auonsVtu"rd stiae«grlids¿g. [681] The provisions of sections 1495, 1496, 1498, 1501, Revised Statutes, conferred on the defendant the power by ordinance to bring said streets to grade and [682] to pay for the cost thereof in two ways. It could ordain that the cost of such grading be paid out of the general revenue fund. If, however, in the judgment of the council, that fund was in such condition as not to warrant the, expenditure for such grading then, in such ease, the cost thereof might have been included by ordinance in a special assessment for macadamizing, etc., and paid for by the issue of tax bills, but until the council so adjudged it was without power to include by ordinance the cost of bringing a street to grade on a special assessment. It is manifest that the cost of the bringing of the streets to grade could not be charged against the abutting lots. “UdiLTncU"' It is the plaintiff’s contention that since the macadam necessary to bring said streets to grade was placed therein by the direction of the street committee and the street commissioner, and that such improvement in its entirety was accepted by the council under the contract, and tax bills issued against the abutting lots for the cost thereof, that the defendant.is therefore liable for the cost of bringing said streets to grade. No street of a city of the third class can be graded, nor can payment of the cost thereof be made in either of the ways prescribed by the statute, except in pursuance of a lawful ordinance passed for that purpose. R. S., sec. 1495; Nevada v. Eddy, 123 Mo. 546. A bill passed by the council could not become an ordinance though passed by the council and signed by the president thereof unless the mayor signed or refused to sign the same in the manner prescribed by section 1537, Revised Statutes. The mayor being a part of the law making power, his concurrence in legislative action is essential to its validity. Eichenlaub [683] v. St. Joseph, 113 Mo. 395. In the absence of an ordinance first lawfully passed for that purpose the council is powerless to expressly or impliedly direct the bringing of a street to grade, at the expense of the city. If either the council, or the street commitee, or the street commissioner should authorize the grading of a street under such condition, the act of each and all of-them would be ultra vires. Eeese on Ultra Vires, see. 190. If the street committee and street commissioner, as here, direct a street or streets to be brought to grade, and after the work is done the council accept the same, this will not bind the city. When special powers are conferred or where special method is prescribed for the exercise and execution of a power this. brings the exercise of such power within the provision .of the maxim expressio unius, etc., and by necessary implication forbids and renders nugatory the doing of the thing specified, except in the particular way pointed out. Heidelberg v. St. Francois Co., 100 Mo. 74; McKissock v. Mt. Pleasant Twp., 48 Mo. App. 416. The defendant’s charter confers upon it no power to open, widen and bring to grade streets and avenues, or to build bridges, culverts and sewers, or to make an assessment on the taxable property within its limits, except by ordinance duly passed and in. which the mayor shall have concurred. Until the passage of such an ordinance the council can take no steps in that direction. If the council could not itself direct the grading of the street, in question, how could it ratify the joint act of its street committee and the street commissioner in doing so? The council, in the absence of an- ordinance lawfully passed, is impliedly forbidden to exercise such power. [684] 7UtifiU-: tIon' [683] A municipal corporation may ratify unauthorized .acts and contracts of its officers which are within the [684] scope of the corporate powers, but not. otherwise. But as the defendant could only authorize the grading of said streets by an ordinance (section 1495) it could not ratify the unauthorized act of the street committee and street commissioner, except by the passage of an ordinance for that purpose. McCracken v. San Francisco, 16 Cal. 591; Pimental v. San Francisco, 21 Cal. 351; Cross v. Morristown, 18 N. J. Eq. 305. As no ordinance had been passed for grading the street the council had no more power than the street committee or the street commissioner, and therefore could not ratify the exercise of an authority which it did not itself have. Dillon on Mun. Corp., sec. 465; Maupin v. Franklin Co., 67 Mo. 330; Johnson v. School Dist., 67 Mo. 319; McKissock v. Mt. Pleasant Twp., 48 Mo. App. 416. The action of the council in accepting the work performed by the plaintiffs in grading the said streets by the direction of the street committee and street commissioner was not an authorized exercise of power and did not bind the defendant. The ratification could be accomplished if at all only by the passage of an ordinance for that purpose. It may be that the defendant can by appropriate ordinance ratify the unauthorized act of its officers in directing said improvement to be made, but that it has not thus far done so is clear. The case of Steffens v. St. Louis, 135 Mo. 44, cited by plaintiffs, is not in point, for there the street commissioner did not exceed his authority as here in directing the work to be done. The two cases are not at all analagous. It may be further suggested that the extra work contemplated by the contract between plaintiffs and defendant related to macadamizing of the said streets, and not to the grading of them, and that in it is found no semblance of authority for the performance of the [685] work directed by the street committee and the street commissioner. Were it not for the fact that the plaintiffs must be presumed to have known of the want of authority in the defendant’s said officers to direct them to bring the said streets to grade and thus bind the defendant, the case might be regarded as one. of great hardship. Keating v. Kansas City, 84 Mo. 415. In no view of the case which we are able to take do we think the plaintiffs are entitled to recover, and it therefore follows that the judgment must be reversed. All concur.