ON MOTION NOE EEHEABING-.
ELLISON, J.Counsel cité the case of City of St. Louis v. Davidson, 102 Mo. 149, as being contrary to the foregoing views on the question of ultra vires.
We do not think so. That case conceded that if the contract is unlawful estoppel will not save it. It does, however, hold that if the contract is not unlawful or forbidden, the party who has received the benefit can not plead ultra vires— *668that he and his sureties are estopped to deny the validity of the contract. Now in this case is it not unlawful to attempt to tax private property without warrant of law? Is it not taking private property without consent of the owner to lay a charge on it for sprinkling? The act of the municipality was not only not authorized, but it was unlawful and the contract, therefore, was void. Cheeny v. Brookfield, 60 Mo. 53.
“Upon a contract which is ultra vires in the true sense of that expression, that is, upon a contract relating to matters wholly outside of the chartered powers of the corporation, there is no liability upon the contract; and the corporation is not estopped to set up the defense.” 2 Dillon Mun. Corp., sec. 935; 1 lb., sec. 457.
But another consideration is, that in this case there has really been no part performance by the city. It has not paid for the work, since all it did was to issue void tax bills in settlement thereof.
The motion for rehearing should be overruled,
Smith and Gill, JJ., concurring.