Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1868-11-16

inyalidity of the ordinance under which
the work was done, and the reasons given
in support of that objection are that the
18th section amounted to delegation to
the Mayor of the legislative power OF the
Council, and that consequently all the
work of the contractors was done under
the authority Of the Council.
The test Of all ordinances passed by
an incorporated body, is the mention OF
the Legislature in granting the Charter
Corporations cannot make ordinances
contrary to their constitution. Mr.. JUS
tice Story says: When the corporation
itself is pointed out as the proper func-
tionary to execute discretionary power,
the true conclusion is, in the absence OF
all other provisions, that it must be solely
exercised by the corporations at its legal
meetings held for the purpose.
There is a clear distinction to be OBJ
served between legislative and ministe-
rial powers. The former cannot be dele
gated, the latter may. Legislative power
implies power and judgment and discre.
ton on the part OF those who confer 1t.
The charter designates and prescribes
two conditions upon which streets may
be repaired. First. Where the City
Council shall deem it necessary, and
secondly, when the owners or major
part of them, owning lands or lots 'front.'
ing on any paved street, shall petition
for the same. The natural and inevita-
BILE condition is that it was the intention
of the Legislature in comforting the
mower that the council should act in de-
termining this subject in its legislative
capacity. Indeed, the language viii!
bear no other construction. i can per-
ceiye no authority whatever in the char
, ter that would justify the Council in re-
ferring to another person or BODY, the
right to determine when the work OF re-
pairing should be done. The Legisla'
ture intended clearly to place the respon'
sibility of determining the matter upon
the City Council, acting officially, when
the initiatory steps we're not taken by the
property owners themselves. The trust
is one of great and peculiar Importance,
as the expenses of the Improvements are
by the law to be paid by the owners of
property. 1t is in effect power OF tax
alton, which is the exercise of sovereign
authority, and nothing but the most
plain and explicit language can induce
or justify court in holding that the Leg
i.lature intended to confer such exorbi-
tant power on the mere discretion OF a
simple city officer. The charter not
only containing no language from which
the authorities can be deduced, but to my
mind it clearly expresses the intention
of comforting the exercise of the power
to the City Council, the members of
which are elected by and responsible to
those upon whose property they are
allowed to impose tax.
It was no doubt with this view that the
statute was passed, the Legislature deem
ing that the responsibility of each mem
ber to his constituents, who we're imme-
diately interested in the work, and who
had to bear the burden, would be check
upon the improvident exercise OF the
power, and an inducement to the wise
and discreet exercise of the legislative
Judgment Of the council But the 18th
section of the ordinance is not viola
ton of the express and positive language
of the statute, but it defeats the whole
policy, which was primary considera-
ton in its passage. That exercise OF
Judgment, discretion and care, which the
persons most deeply interested had
right to expect on the part OF those to
whom they committed their important
trust, perhaps on account OF their ,pecu,,
liar fitness, is absolved and shifted, and
placed in the mere discretion OF city
officer.
There is nothing imperative Oh the
Mayor-he may act or not, at his mere
pleasure or caprice.
1t is easy te perceive that such power
might be susceptible of the greatest abuse,
and the law has wisely withheld it.
There being no action taken by the
Council in which it was deemed neces-
sary that the street in question should be
repaved, nor any petition presented by
the major part of the persons owning
property fronting thereon, the section IN
controversy must be held to be ultra
Uoires and void.
1t is contended by the COUNSEL for the
plaintiff in error that the ordinance may
be sustained by virtue of the power given
in the act, authorizing and empowering
the City Engineer, under the control OF
the City Council, TO repair and keep in
repair all streets and alleys in the city OF
ST. Louis, and to that end cause all the
necessary work to be done.
But this is evidently not the intention
of the statute. The second section of the
supplementary act authorizing the City
Engineer to cause repairing to be done,
specifies what work be shall be empow-
cred to do other than repairing, in the
first section. The third section, providing
for the repaving Of streets, is separate
and independent section, and can only
be made operative by the performance OF
one of the alternative precedent oondi-
tons contained therein. The act most
clearly distinguishes between repairing
streets and paving them; it uses the
terms as distinct things. and makes sep
arate provision for them. No special
ordinance seems to be required in case
Of repairs.
The City Engineer is empowered by
the statute itself with the duty of seeing
that repairs are made, subject TO the con-
troll Of the City Council, but repaving IL
nol placed in the sane situation.
Il is also suggested that because the
contract in question was aftervard ap-
proved Sy the Council, Il ought, there
fore, 70 be held good, as done under the