Risley v. City of St. Louis

Bates, Judge, delivered the opinion of the court. It has been held by this court in the case of the City of St. Joseph v. Anthony, 30 Mo. 537, which was a suit for the collection of an assessment on a lot owner to pay for macadamizing an adjoining street, that it was not necessary that the plaintiff (the city) should prove a strict compliance with all the ordinances directory as to the subject, but that the defendant might show a neglect of duty by the authorities, and if he was injured thereby, it might constitute a defence. In like manner in this case, we inquire only whether the proceedings which resulted in executions agaiizst the plaintiff contained any substantial defects injurious to him, and we arrive at the following conclusions : [417] 1. The act of 1859, which repeals the act of 1858, did not affect this proceeding, which was begun before the passage of that act, under ordinances previously passed. 2. The fact that the plaintiff had no actual notice of the proceedings, does not invalidate them as to him or release him from liability. The act only requires notice to the persons to be benefitted, to be given by publication in newspapers, as was done. 3. No formal continuances from time to time were required to be made part of the record. 4. The fact that there was no money in the treasury of the city when the appropriation was made, is of no consequence to the plaintiff, who was not entitled to receive any part of it. There is no pretence that the plaintiff’s property was not justly the subject of the assessment, nor that the assessment was higher than it ought to have been, if the proceedings complained of had been regular; and there is no equitable merit in the complaint of the plaintiff, which is founded purely upon technical grounds ; and as the proceedings substantially conformed to the statute and ordinances, judgment should have gone against the plai ntiff. Judgment reversed and cause remanded. Judge Dry den concurs. Judge Bay did not sit in the cause, having been of counsel in it.