Bixler v. Hagan

delivered the opinion of the court.

This is a suit by a contractor with the city of St. Louis for the paving of a street, under the city ordinances, upon a certified tax bill in the usual form. The defendants had judgment on demurrer to the answer;

The defense rested on the ground that the city was itself the occupant of a portion of the street fronting the defendants’ .property as a stand for market-wagons during certain hours of the day, and as a part of the established market-place ; and it was contended that, in such case, the cost of paving the street should have been paid by the city auditor out of the appropriations for streets and alleys, under the ordinance regulating the engineer department. (Rev. Ord. 1866, p. 328, § 21.)

We think it is very clear that the defendants have wholly misconceived the intention and effect of the ordinances. This is made apparent by reference to the preceding section (18), which provides that whenever the city is' itself ‘{the owner or occupant of property fronting upon the street sought to be so repaved,” upon the petition of the owners the mayor may sign such petition on behalf of the city; and then it is further provided (§21) that, “ whenever the city of St. Louis, as owner or occupant of property,” shall be chargeable for such' work, the auditor shall pay the same as aforesaid. These provisions can have no application to a case of this kind. The city is not shown to be chargeable as the owner or occupant of any property fronting on the street.

*374The ordinance establishing the North Market, it is true, sets apart “ all that portion of Broadway” between Morgan and Carr streets, eight feet wide along the curbstone, for stands for farmers’ wagons, and subjects it, as “ a part of the North Market,” to the regulations of the market and to the supervision of the market-master during certain hours of the day; but this does not make the city, in any proper sense, the occupant of property fronting on the street. At most it could only be considered an interference with the ordinary use of the public street. Whether or not such interference would properly come within the power which the city may lawfully exercise over the regulations of streets or markets, or would amount to any unlawful invasion of the rights of the defendants to the use of the street in common with the public generally, or what remedy, if any, they wmuld have in such ease, we need not inquire on this record. It is enough for all the purposes of this demurrer that the facts specially pleaded in the answer constituted no valid defense to the action, and the demurrer should have been sustained,

The judgment will be reversed and the cause remanded.