City of St. Joseph ex rel. Danaher v. Wilshire , 47 Mo. App. 125 ( 1891 )

Ellison, J.

The petition in this cause was founded on a special tax bill, issued on account of the building of a district sewer. A demurrer to the petition was sustained and plaintiff appeals. That portion of the city charter applicable is as follows : “ District sewers shall be established within the limits of the district prescribed by ordinance, connecting with the public sewer or other district sewer or with the natural course of drainage, as the case may be * * * and said sew'er shall be of such dimensions as may be prescribed by ordinance,” etc. R. S. 1879, sec. 4791, art. 3. That portion of the ordinance sets out in the petition necessary to notice is as follows: Sec. 1. The city engineer is hereby directed to cause a district sewer to be constructed within a portion of sewer district number 14, with all the lateral sewer inlets, manholes, junction pieces and other appurtenances necessary to render such sewer complete and efficient; said sewer being by the common counsel deemed necessary for sanitary and drainage purposes. Said sewer shall be located as follows: Commencing at the manhole at the center of Church and Thirteenth streets, thence north to the center line of the alley running east and west through block 29, St. Joseph Improvement Addition, thence west on the center line of said alley to the east property line of Twelfth street, to be of vitrified clay pipes, fifteen inches, in diameter, on Thirteenth street, and twelve inches in diameter on the alley, also, one manhole at the center, of Thirteenth street and the alley dividing block 29, St.' Joseph Improvement Addition, also three inlets located as follows : One on Twelfth street at the northeast corner of alley dividing block 29, St. Joseph Improvement Addition, one on Thirteenth street at northwest corner of alley in block 29, St. Joseph Improvement Addition and one on the east side of Thirteenth street,' opposite the north line of the alley in block 29, St_: Joseph Improvement Addition.

The following is among the allegations of the peti- • tion : “That thereupon plaintiff entered into contract with the said city of St. Joseph to build said sewer upon the terms of said bid and award,, to-wit: For-twelve-inch sewer pipe, per lineal foot, $1.05 ; for fifteen-inch sewer pipe per lineal foot, $1 ; for each receiving basin complete, including pipe connections, the sum of $42 ; and for each manhole complete, the sum of $40 ; that the sewer so ordered and. bid for connected at the center of Church and Thirteenth streets with a public sewer previously constructed by the city of St. Joseph, which said sewer empties into the Missouri river at the foot of---street in said city ; that, therefore, plaintiff proceeded to do the work aforesaid in accordance with the said ordinances and the said plans and specifications and, in accordance with said contract, and has performed all the conditions thereof; that said work was completed on the---- day of--- 1888.” The objections to the petition are that it discloses a void • ordinance in that it (the ordinance) does not provide that the sewer shall connect with the public sewer, a district sewer, or with the natural course of drainage.

It is unquestionably true that the sewer should so connect, and if the ordinance fails to provide for such connection, it is void. Bayha v. Taylor, 36 Mo. App. 427. But must the ordinance on its face in terms specify that it does so connect? We think not. If the provisions of the ordinance do in fact so connect it, it •ought to be sufficient so far as the ordinance is concerned. In this case the petition alleges that the sewer ■connects with a public sewer at the point which is named in the ordinance, as the starting point of the sewer in controversy. The City of Kansas v. Swope, 79 Mo. 446, decides nothing contrary to the foregoing.

II. • The next objection is, that the ordinance does not specify the material of which the sewer basins and the manholes shall be constructed. The charter does not in terms require that the ordinance shall specify the material, but, notwithstanding this, I appreliend that such is a part of the legislative function of •the city council. This is appai’ent from the nature of :such municipal body and from the powers granted and the duties enjoined upon, it by the charter, “Legislative 'power implies judgment and discretion upon the part of those who exercise it, and special confidence .and trust upon the part of those who confer it.” Ruggies v. Collier, 43 Mo. 353. The power and discretion to •order the building of the sewer is scarcely more important to the public and to the individual taxpayer, than the authority to say of what material it shall be constructed. If the material was not provided for by the ■ordinance it must have been left to the judgment of the •city engineer. As was said in the case cited, in speaking of paving streets, “ It is in effect a power of taxation, which is the exercise of sovereign authority, and ¡nothing but the most plain and explicit language can ¡induce or justify a court in holding that the legislature Intended to confer such exorbitant power on the mere discretion of a single city officer.” Our opinion is that prescribing the material out of which the sewer was to be. constructed was a legislative power, and that it belonged to the discretion of the council. If this be the correct position, it.follows that such power could not be delegated. Galbreath v. Newton, 30 Mo. App. 380; Ruggles v. Collier, supra; City v. Clemens, 43 Mo. 404.

III. A difficult part of the question remains to be disposed of. It will be noticed that the material for the sewer proper is prescribed by the ordinance, but the material for the receiving basins and the manhole is not. Is this such a substantial part of the work as will invalidate the proceedings? Judge Bliss says, in Sheehan v. Gleeson, 46 Mo. 100, that “An ordinance may lack desirable precision, and still may so provide for the manner in which an improvement shall be made, and be such a compliance with the law, although a loose one, that the courts would not be authorized to invalidate the action of the city officers under it. It is not every irregularity or omission that goes to the substance of a proceeding.” The material of which the receiving basins are to be constructed is left to the discretion of the city engineer. His judgment or caprice is to determine the matter. The receiving basins form such important and material part of the sewer that we deem it to be of the substance of the whole work. But for them, one principal object and function of the sewer would be'of no avail. We, therefore, feel constrained to hold the ordinance invalid and shall affirm the judgment.

All concur.