City of Kansas ex rel. Frear Stone & Pipe Manufacturing Co. v. Swope , 79 Mo. 446 ( 1883 )

Sherwood, J.

Action on tax bills for building a sewer. It is- unnecessary in the examination of the merits of this cause that discussion be had of but one of the defenses set forth in the answer, “ that the sewer in question does not and never did connect with a public sewer or other district sewer, or with the natural course of drainage, and that ordinance 11,497 referred to in the petition, was void for that reason.” The charter of the city provides that: “ District sewers shall be established within the limits of the district to be described by ordinance, connecting with a public sewer or other district sewer, or with the natural course of drainage, as each case may be.” Laws of Mo. 1870, pp. 348, 349, § 2. The facts in evidence show that the charter provisions just quoted were not observed. Section 1 of the ordinance referred to in the answer, provides for the building of a district sewer in districts 129 and 130, and that it “shall extend from the west line of H. R. Seeger’s addition to the old bed of Turkey Creek.” The “ old bed of Turkey Creek,” stopped up and dammed up for years by streets, roads, railroad tracks, etc., had long since ceased to be a “natural course of drainage.” Nor does the ordinance in question make provision for the district sewer to connect “ with a public sewer or other district sewer.” The charter of the City is the organic law of the City, outside of the provisions of which the municipal authorities are powerless to act. In Kiley v. Oppenheimer, 55 Mo. 374, we said: “ The ability of the City to create a lien on the property of one of its citizens in the manner pointed out in the ordinance referred to is founded not in any absolute or pre-existent right, but rests exclusively in an adherence to the method prescribed by ordinance in pursuance of the authority contained in the charter.” In Leach v. Cargill, 60 Mo. 316, we said : “ It is well settled law in this State, as well as elsewhere, that the power of the municipal authorities is exclusively confined to the limits prescribed by the charter, and such ordinances as are passed in conformity thereto.”

Applying the principle just announced to the case at bar the judgment must be reversed.

All concur, except TIougii, O. J., not sitting.