Maudlin v. City of Trenton

1. Municipal Corporations: cities of the third class: change or grade in street: action. A street committee of a city of the third class has no power to change the grade of a street — since that must be done by ordinance — and no action will lie for damages accruing from such change of grade. 2. -:-: ratification: ordinance. Ratification by a city ofthe third class of an unauthorized aetion of its street committee must be by ordinance.

Appeal from the Grundy Circuit Court. — Hon. Paris C. Stepp, Judge. (1) Under section 21, article 2, of the constitution of the state of Missouri, the defendant was liable for changing the grade of the street in front of plaintiff’s property, and this property, and this provision of the constitution is self-enforcing. Householder v. The City of Kansas, 83 Mo. 488; Sheehy v. Cable Co., 94 Mo. 574; Hickman v. City of Kansas, 120 Mo. 110; Markowitz v. Kansas City, 125 Mo. 485; McElroyv. City of Kansas, 21 Fed. Rep. 257; Carson v. City of Springfield, 53 Mo. App. 289. (2) The defendant city had the power, under the laws of 1893, page 65, under which it is organized, to change the grades of its streets, and the acts of its officers in making the change were not ultra vires. Dillon on Municipal Corporations [3 Ed.], see. 968; Hunt v. City of Boonville, 65 Mo. 620. No formality was necessary to authorize the street committee to do the work, and no ordinance was required. Laws of 1893, sec. 110, p. 93. (3) The defendant having the power and authority to change the grade of its streets, is liable for the damages done to plaintiff’s property by its officers and agents “in changing such grade, although not authorized by ordinance, It ratified their acts. Elliott on Roads, p. 357; Dillon on Municipal Corporations [3 Ed.], sec. 968; Beach on Municipal Corporations, 1141; 19 Am. and Eng. Encyclopedia of Law, 471, 472, 473; Thayer v. Boston, 19 Pick. 511; 31 Am. Dec. 157; Davis v. City of Jackson, 28 N. W. Rep. 526; Bruce v. Dickey, 6 N. E. Rep. 435; Meimer v. City of Hacine, 32 N. W. Rep. 139; Trustees, etc., of P. E. Church v. Anamosa, 41 N. W. Rep.. 313; Whitmore v. Village of Tarrytoion, 16 N. T. Sup. 740; 62 Hun, 619; Murphy'ó. City of Albina, 29 Am. S.Rep. 578; Orlando v. Pragg, 34 Am. S. Rep. 17, and note; McCormick’s Appeal, 44 Am. S. Rep. 671; McKnight v. City of Philadelphia, 91 Pa. St. 275; Manufacturing Co. v. Allentown, 153 Pa. St. 319; Soulard v. City of St. Louis, 36 Mo. 546, 552, 553; Dooley v. The City of Kansas, 82 Mo. 444; Schumacher v. City of St. Louis, 3 Mo. App. 297; Imler v. Springfield, 30 Mo. App. 669; Hatvks v. Charlemont, 107 Mass. 417; Water Co. v. City of Aurora, 129 Mo. 540, 583; City to use of Lancaster v. Armstrong, 56 Mo. 298. (1) It not appearing from appellant’s petition that any ordinance was passed by the council authorizing the improvement complained of, ' and in fact it being admitted by appellant’s counsel that no such ordinance was passed, the action of the trial court in excluding the evidence offered was proper and in exact accord with the rulings of this court in Qehling v. St. Joseph, 49 Mo. App. 432; Werth v. City of Springfield, 22 Mo. App. 17. (2) The power of cities of the third class to grade streets must be exercised by ordinance. Session Acts, 1893, sec. 108, p. 90; Session Acts, 1893, sec. 109, p. 92. (3) A city can do only those things that its charter or the general statutes expressly authorize it to do, and it can do those things only in the exact manner prescribed, otherwise the municipality is not bpund. 15 Am. and Eng. Encyclopedia of Law, p. 1042 ; Zottman v. San Francisco, 81 Am. Dec. 96; Bird-sail v. Ciarle, 29 Am. Rep. 105, note; Werth v. Springfield, 78 Mo. 107; Werth v. Springfield, 22 Mo. App. 12; Stewart v. Clinton, 79 Mo. 603; Thompson v. Boonville, 61 Mo. 282; Rowland v. Gallatin, 75 Mo. 134; Beatty v. St. Joseph, 57 Mo. App. 251; Gehling v. St. Joseph, 49 Mo. App. 432; Thrush v. Cameron, 21 Mo. App. 394; Manufacturing Co. v. Schell City, 21 Mo. App. 175; Johnson v. School Dist., 67 Mo. 321; Keating v. City of Kansas, 84 Mo. 419; Sturgeon v. Hampton, 88 Mo. 203; City of St. Louis v. Clemens, 43 Mo. 395. (4) Where officers fail to pursue the strict requirements of a statutory enactment under which they are acting, no subsequent action on their part can give validity to their acts. Smith v. Newburg, 77 N. Y. 130; 19 Am. and Eng. Encyclopedia of Law, p. 474, note 2; City of Bryan v. Page, 32 Am. Rep. 637; Marsh v. Fulton Co., 10 Wall. (U. S.) 676; Peterson v. Mayor, 17 N. Y. 449-454; Buggies v. Collier, 43 Mo. 367.’ (5) If it is ever possible for a city to ratify the unauthorized acts of its officers, this ratification must be in the same manner as authority could have been legally conferred in the first instance, i. e., where by charter or statute the passage of an ordinance is a condition precedent to the doing of the work by the city, the ratification must be by ordinance, or the city is not bound. Dillon on Mun. Corp. [2 Ed.], sec. 387,note 1; Petersonv. Mayor, 17 N. Y. 449; Smith v. Newburg, 77 N. Y. 136; 19 Am. and Eng. Encyclopedia of Law, p. 474, note 2; City of Bryan v. Page, 32 Am. Rep. 637; Marsh v. Fulton Co., 10 Wall. (U. S.) 676; Crutchfield v. Warrensburg, 30 Mo. App. 456; Despatch Line v. Mfg. Co., 37 Am. Dec. 203; Johnson v. School Dist., 67 Mo. 319; Manufacturing Co. v. Schell City, 21 Mo. App. 175.