Keating v. City of Kansas

Sherwood, J. Keating sued the city to recover the [418] sum of $4,062.66 for certain street grading done by Mm under a defective ordinance. He had a contract with the city to do the work which expressly provided that the passage of the ordinance, number 14,495, and the doing of said work without any petition or any proper petition therefor, or entire failure or failures properly on the part of real estate owners theretofore or thereafter, to petition the common council to have said work done or improvements made, shall not render the city liable to pay directly or indirectly for such work or any part thereof, otherwise than by the issue of special tax-bills; and said Keating shall assume all. risks as to the validity or invalidity of such special tax-bills, and take the same without recourse against the City of Kansas in any event. And the charter of the city provides: “Section 1. The common council shall have power to cause to be graded, constructed, reconstructed, paved, or otherwise improved and repaired, all streets, sidewalks, alleys, and public highways or parts thereof, within the city, at such time and to such extent, and of such dimensions and with such materials, and in such manner and under .such regulations as shall be provided by ordinance; and all ordinances and contracts for such work shall specify how the work shall be paid for; and in case payment is to be made in special tax-bills, the city shall In no event or in any manner whatever be liable for or on .account of the work.” The ordinance, 8449, referred to in the briefs of counsel, was held defective by this court in Keating v. Skiles, 72 Mo. 97. In consequence of this holding, Keating failed to recover anything- for tMs work, except what was voluntarily paid him by a few of the property owners. I. It is a well settled law, that for the non-exercise or the defective exercise of its public or legislative power, a municipal corporation is not liable to anyone who suffers injury in consequence thereof. 2 Dillon on Mun. [419] Corp. 949. In the attempted passage of the defective ordinance, the city, of course, was engaged in the exorcise of legislative powers. McCormick v. Patchin, 53 Mo. 33. And for the negligent exercise of such powers no action lies. Keating was bound to take notice, at his peril, of the defective ordinance, when dealing with the •officers of the defendant, and cannot urge against the city in this suit, such defects or want of power in such officers. 1 Dillon Mun. Corp. 447; Cheeney v. Brookfield, 60 Mo. 53. II. According to the charter already quoted, when the city agrees to pay for the work in special tax-bills, the city shall in no event, nor in any manner whatever, be liable for or an account of the work. And the contract follows this charter provision, and states in conclusion that said Keating shall assume all risks as to the validity or invalidity of such special tax-bills, and take the same without any recourse against the City of Kansas in any event. If after all this, he can indirectly recover from the city, it must be confessed that neither the city charter nor his contract have any binding force. Both the charter and the contract, it will be observed, are so broad and comprehensive in their terms, that any recovery against the city is denied to plaintiff in any form of action whatever. The requirements of the charter in such cases is the only touchstone of corporate liability. Upon that the contractor with the city must rely. To establish any rule in order to meet the hardships of this particular case, would result in incalculable mischief, and the overthrow of the organic law of the city. But if the contract with the city was void, owing to the defect in the ordinance, as doubtless it was, this gives no right of action to the plaintiff; for from avoid contract, no cause of action can arise whether of quantum meruit or one sounding in damages. Mayor, etc., v. Eschbach, 18 Md. 276; McDonald v. Mayor, 68 New York 23. [420] The result is that the judgment of the lower court must.be affirmed.. All concur.