ON REHEARING.
Gill, J.T. It will be observed that in the foregoing opinion we held the ordinance providing for the sewer invalid, because of its failure to designate of what material and how the manhole and receiving basins should be constructed. We deem this a proper exercise of the legislative function which the council could not delegate to the city engineer. Plaintiff’s attorneys on this rehearing have urged that we are mistaken, and insist that when the entire petition is *132•considered it will appear that the common council in its legislative capacity definitely prescribed the material, ■etc., to be used in the construction of the inlets and .manhole. To sustain the contention the following •proceedings are pleaded and relied on: First, passage • of the ordinance directing the improvement. In this it must be remembered the material, size, etc., of the receiving basins and manhole aré not ^prescribed ; second, that the city engineer, in pursuance of his duty, under the ordinances, made plans and specifications for the -entire work, sewer proper, manhole and inlets ; that he let the contract therefor subject to the approval of the -council, and that such contract, including the plans and specifications, were submitted to and approved by the ■council. It is now claimed that this approval by the ■common council was equivalent to a direct prescribing of material in the first instance. In other words, the assent thus given by the common council to the contract made by the city engineer wherein the material, etc., are specifically set out is said to have cured the •delect in the original ordinance providing for the •improvement. This position is not tenable. The-diffi•cultylies in the admitted fact that the ratification or ..approval of the acts of the engineer only' comes in .this case from the expressed assent of the- common • council acting alone, and not in conjunction with the mayor who is a part of the legislative power of the city. 'The sewer could only be provided for by ordinance, .and no ordinance becomes complete until acted upon .and approved by the mayor. R. S. 1879, secs. 4644, 4645. It is plain then that the first defective ordinance •could only be cured by an ordinance passed by the •council and approved by the mayor. A mere resolution •of the council alone will not suffice. Saxton v. Beach, 50 Mo. 488; Irvin v. Devors, 65 Mo. 627.
II. Another question here arises ; it is this: Conceding the ordinance to be imperfect and defective in failing to name the materials for the construction of the *133manhole and three catch basins, but holding, as we do, it to have been all-sufficient in so far as the sewer proper is concerned, is it proper to deny altogether plaintiffs right to recover ? We think not. Whatever may be the proper rule in other cases it would seem that plaintiff ought to be allowed in this particular instance to recover on these tax bills for'the amount due in the construction of the main sewer. The contract is distinctly severable ; its terms are: “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 each manhole complete, the sum of $40.”
We have held now that the city engineer was unauthorized by the terms of the ordinance to let the contract for the construction of the one manhole and three receiving basins, but on the other hand held the ordinance perfect in so far as the sewer proper is concerned. Upon the state of the case here we must admit, too, that the sewer was constructed in full compliance with the contract, and it would seem entirely just that the plaintiff would recover on the tax bills, less the amounts ■charged for the unauthorized work, to-wit, the one manhole and three receiving basins. This right for a partial recovery on a tax bill is fully recognized in matter of bills issued for grading streets, etc., where it is provided, “that nothing in this section shall be so ■construed as to prevent any defendant from pleading, in .reduction of the bill, any mistake or error in the amount thereof, or that the work therein mentioned is not done in a good and workmanlike manner,” etc. This is quoted from section 4783, Revised Statutes, 1879, and ■comes from the body of the same law for the government of cities of the second class where is found the authority for the issue of the tax bill here in suit. It is ■definite recognition of the right of partial recovery on tax bills for grading streets, and, if such a right exists there, why not in case where the tax bills are for' the *134construction of district sewers % So the same just principle is announced in Neenan v. Smith, 60 Mo. 292. We quote from the syllabus of that case : “The fact that some small amount of work or material may have been apportioned and charged in the bill other than that called for by the contract will not necessarily invalidate the bill; but the additional amount so assessed may, on proper showing, be deducted.”
It follows, then, that the judgment herein must be reversed, and the cause remanded.
All concur.