City of Sedalia ex rel. Gilsonite Construction Co. v. Montgomery, 109 Mo. App. 197

109 Mo. App. 197 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating tbe facts). — 1. At tbe portal of tbe cause, we are faced with a revival and reiteration of tbe charges of collusion between tbe parties confronting each other as plaintiff and defendants. While it is indisputable that legal tribunals are not created to bear and decide moot cases, and that lawsuits contemplate adverse parties and hostile interests, and courts will refuse to entertain proceedings inaugurated and designed to affect tbe rights of third parties, strangers thereto, whereby sucb actions cease to be antagonistic and are rendered collusive [Meeker v. Straas, Admr., 38 Mo. App. 239; State ex rel. v. Westport, 135 Mo. 120, 36 S. W. 633], yet this record is devoid of any evidence sustaining such arraignment and being largely an issue of fact, the denial of the motion by the circuit court of Pettis county, where the action was commenced, will go far in controlling such question, and no reason has been exhibited to overthrow its discretionary action or requiring any disturbance of its ruling in this regard.

2. The contention of respondents, summarized in the language of their counsel, is that when the remonstrance was filed and thereafter certain withdrawals were made therefrom and the council referred the matter to a committee for investigation, which reported that it found sixty-one resident property-owners, of whom thirty-two had by remonstrance filed a protest against the proposed improvement but of the qualified parties signing the remonstrance, five had withdrawn, thus leaving but twenty-seven remonstrating; and further reporting that the committee had determined the qualification of those remonstrating upon the opinion of the city .counselor filed with the report, and which report of the committee was received and placed on file, that such report became part of the record, when the council contemporaneously passed an ordinance directing the improvement and the passage of such ordinance constituted in legal effect, the adoption of the report, and disclosed the theory of the council upon which the latter ascertained and determined the remonstrance insufficient, and constituted a conclusive declaration by the record, that it had acquired jurisdiction to enact the ordinance by reason of the withdrawals attempted after the protest had been filed; that the law made imperative and essential that the record should disclose lawful authority to make the improvement, and such record evinced, that the council had found that a majority filing the remonstrance had been converted into a minority by the withdrawals, and thereupon as the record itself displayed a want of power and jurisdiction, neither the city nor the owners of the taxbills conld contradict snch record, bnt the latter upon its face must disclose jurisdiction. Respondents further contended that a remonstrance, containing a majority of the resident property-owners, when filed with the city clerk conclusively ousted the jurisdiction of the city council to continue with the contemplated improvement, and the power could not be restored by withdrawal of names thereafter, and the council, therefore, was debarred from progressing except by proceedings anew. The situation, therefore, may be elucidated into the simple inquiries whether defendants established by competent proof, that a remonstrance over the signatures of the requisite majority of the qualified owners of property subject to assessment for the improvement was filed, and if such duly signed protest was presented, then whether plaintiff should have been accorded the right of impeaching or assailing the signatures thereto or was such protest thus executed and tendered final and conclusive. It is urged by appellant that the disposition of the report of the committee employed was ambiguous and indefinite and its mere reception did not constitute an adoption because not fixed upon by resolution. By putting the ordinance for the paving upon its passage after such action upon the report, the council adopted the latter in as effective a manner as if by formal resolution and motion, and if such action was not in strict accord with the sections of the parliamentary code adopted for guidance of the council’s deliberations, that body as every deliberative body reserved the discretionary right to exercise, formally or informally, at its pleasure the power of suspension, waiver or modification of such rules. [Holt v. City of Somerville, 127 Mass. 411; Bennett v. New Bedford, 110 Mass. 433.] The result of the action of the council was in effect a finding that under the law a majority of the qualified owners had not executed the remonstrance, and this con- . elusion of the council, illustrated by putting the ordinance upon its passage, was assailed not by proof that in fact a legal majority of snch qualified owners had remonstrated, but by endeavor to indicate a fatal infirmity and legal defect in the process by which snch conclusion was attained. To sustain such contention it was made essential for respondents to concede that the committee found that a legal majority did not protest, but arrogating the right to reject, as not conclusive, such decision of the committee, and affirm that the record itself attested that such majority did remonstrate and the council was shorn of power to proceed with the improvement.

The.inquiry whether the conclusion of the council upon the validity and sufficiency of a petition in favor of, or in protest against, the performance of such public work is a final adjudication, involving decision of a jurisdictional fact, has received opposing answers and has been solved at variance in different jurisdictions. The view expressed in an earlier case by this court appears to negative the conclusiveness of such decision in the absence of express legislative power. In Fruin-Bambrick Con. Co. v. Geist, 37 Mo. App. 509, an action upon a special taxbill issued for improvement of an alley in the city of St. Louis, the defendants resisted recovery upon the ground, among others, that a remonstrance against the proposed improvement of the alley had been signed by the owners of more than the requisite major part of the owners of the property in the block intersected by the alley, and the court pertinently says: “It appears inferentially from the record that the board of public improvements decided that the remonstrance was not signed by the owners of a major part of the block and the appellant contends that the finding of this fact by the board of public improvements was conclusive. We can not consent to this. This was a jurisdictional fact and the decision of the board in the absence of an express legislative provision to that effect would not be conclusive.” A like rule obtains in the State of New York, announced in Miller v. City of Amsterdam, 149 N. Y. 288. [City of Bloomington v. Reeves, 177 Ill. 161; Cummings v. Comrs. 181 Ill. 136.]

An eminent commentator in his admirable treatise on the law of taxation,, in the chapter devoted to taxation by special assessment, under heading “Municipal Action” expressed the following view: “Municipalities having no inherent power in these cases, it is necessary to the validity of their action that they keep closely to the authority conferred. Their ordinances and resolutions must be adopted in due form of law and they must keep within them afterwards. They can bind the taxpayers only in the mode prescribed and can substitute no other. Their legislative action if properly taken is conclusive of the propriety of the proposed improvement, and of the benefits that will result, if it covers that subject, but it will not conclude as to the preliminary conditions to any action at all; such for example, as that there shall be in fact such a street as they undertake to provide for the improvements of, or that the particular improvement shall be petitioned for or assented to by a majority or other defined proportion of the parties concerned. This last provision is justly regarded as of very great importance, and a failure to observe it will be fatal at any stage in the proceedings. And any decision or certificate of the proper authorities, that the requisite application or consent had been made, would not be conclusive, but might be disproved.” [2 Cooley on Taxation (3 Ed.), p. 1243.]

In a venerable decision from the State of New York, being ejectment for land to which title was asserted by virtue of an assessment and sale for improvement in the then village of Brooklyn, the court says: “The defendant insists that the petition conferred jurisdiction on the trustees to lay out a well and pump district, etc., provided they should judge that a majority of the persons intened to be benefited had signed; that by granting the petition and proceeding with the work, the trustees adjudicated upon the question, and determined that a majority had petitioned; and that this judgment of the trustees is conclusive upon all persons so long as it remains unreversed. It is impossible to maintain that in this matter the trustees were sitting as a court of justice, with power to conclude any one by their determination. True they were called upon to decide for themselves whether a case had arisen in which it was proper for them to act. But they acted at their peril. They could not make the occasion by resolving that it existed. They had power to proceed if a majority petitioned, but without such a petition they had no authority whatever. . They could not create a power by resolving they had it.” [Sharp v. Spier, 4 Hill (N. Y.) 76.]

The same conclusion is given expression in Allen v. City of Portland, 35 Oregon 420, the court therein stating: “But the question as to its (i. e., the common council) jurisdiction to act in any given case, like courts of limited, special and inferior jurisdiction, is always open to inquiry; and in any event its decision or determination may be attacked collaterally for want of such jurisdiction. It cannot legally assume to act until the facts exist upon which its jurisdiction depends and no decision or determination that it has, can avail in the absence of such facts. By the express charter provisions, it is not to give notice, or act in the exercise of the power delegated, until the requisite petition is-filed; and its judgment that it conforms to the requirements of the charter could not make it so, if' it was otherwise, or give it validity in invitum. [Cagwin v. Town of Hancock, 84 N. Y. 532.] Notwithstanding, the council is bound to exercise its judgment in determining whether a valid petition has been presented, and this it does for the purpose of ascertaining whether it is warranted in taking further action under it, yet its judgment is not conclusive unless made so by express legislation and such is not the case under the charter. Inquiry may be made, therefore, with respect to the fact of jurisdiction, in a proceeding to enjoin the collection of an assessment purporting to have been made by and through the authority of the council.” [Alpin v. Fisher, 84 Mich. 128; Ogden City v. Armstrong, 168 U. S. 224.]

■ The sounder and better sustained view would seem that the ex parte decision of the council in such matters is but prima facie and presumptive, in absence of di-. rect conclusive power clearly conferred by the legislature, and if such conclusions be not merely legislative or ministerial in their character and even if treated as of a quasi-judicial nature, they are not final and the council record or journal is merely evidence of the action of the body, not absolute proof of the verity and correctness of the decision itself; for upon the fact respecting the remonstrance the jurisdiction or power of the council to act is made dependent. This authority of the city council is not a continuous power subsisting but subject to be divested by the filing of a protest containing the prescribed quota of qualified objectors, but more properly it may be defined as a right, dormant and inert, until animated by the will of the majority of the resident property-owners liable to be assessed for the intended improvement, whose assent is implied from absence of majority protest. That such power by tacit assent, implied of those not affirmatively expressing their dissent by protest, is awakened to set in motion and render operative the legal machinery of the statute empowering the improvement. The language employed in the act of 1893 is appropriate for such construction. Section 110 recites “and if a majority of the resident owners of the property liable to taxation therefor, shall not within ten days thereafter, file with the clerk of the city their protest against such improvements then the council shall have power to cause such improvement to be made,” etc. The Supreme Court of the United States, in explicit terms, has given weight to the proposition that under such conditions no jurisdiction exists to construct the improvements until the implied approval of a majority of the property owners is had through their failure to object. In Armstrong v. Ogden, first found reported in 12 Utah 476, and on final appeal in 168 U. S. 232, the ruling of the court was invited upon a bill against the municipal corporation and its mayor and members of its common council to restrain the city and its officers from levying assessments upon the realty of plaintiff, and others in like situation, for the purpose of paving a street of the city. The act under which the taxbills were sought to be issued, provided for public notice of the improvement to be advertised in manner and form defined, and proceeding em-’ bodied: “If, at or before the time so fixed, written objections to such improvements signed by the owners of ■one-half of the front feet abutting upon that portion of the street, avenue or alley to be so improved be not filed with the recorder, the council shall be deemed to have acquired jurisdiction to order the making of such improvements.” Judge Shiras, expressing the opinion of the court, said: “We agree with the courts below in thinking no jurisdiction vested in the city coun-cil to make an assessment or to levy a tax for such an improvement, until and unless the assent of the requisite proportion of the owners of the property to be affected, had been obtained, and that the action of the 'city council in finding the fact of such assent was not ■conclusive, as against those who duly protested. The fact of consent by the requisite number, in this case to be manifested by failure to object, is jurisdictional, and in the nature of a condition precedent to the exercise •of the power.”

In the State of California, the statute governing ■•public work of like character was decided to necessarily import that if such protest had been filed, jurisdiction shall not be deemed to have been acquired. [City Street Improvement Co. v. Babcock, 123 Calif. 205.]

The Supreme Court of Oregon, in Clinton v. City of Portland, 38 Pac. 407, says: “Section 27 of said article 6 authorizes the common council to improve a street, without giving notice of its intention to do so, when the owners of two-thirds of the adjacent property petition therefor and section 3, supra, authorizes an improvement if no remonstrance by the owners of a majority of the property adjacent thereto to be filed within ten days after the final publication of the council’s, notice of intention to make the improvement. The charter thus provides two methods of acquiring jurisdiction to improve a street, ’ ’ etc.

While not interpreting words identical with those of the act under consideration, but construing language of similar purport, the above authorities strongly incline to the conclusion that the conferring or withholding of power or authority, and not the ousting of jurisdiction pre-existing, is involved in the filing of the remonstrance under the provisions of such statutory enactments. This section established a time limit of ten days within which objection to the improvement might be announced, and until the expiration of such period,, the power of the council did not become fixed or defined, and no sufficient reason has been assigned why a party in interest, who in the first instance joined the protestants, by attaching his name to the remonstrance thereafter, for reasons satisfactory to himself, might not recede from such position and ratify or assent to the proposed work. It would seem but logical and reasonable to permit qualified names to be subscribed to the reinonstrance, until it was matured for action by the council, and it is difficult to perceive why right of more positive change of purpose should not be permitted a signer of the protest within the period appointed. No direct authority, other than hereinbefore alluded to, has been produced upon this branch of the controversy, but judicial rulings under analogous conditions are not lacking. The practical answer to the possible difficulties ensuing from the various situations so easily conceivable under such construction is that to all parties, whether favorable or hostile to the contemplated improvements, notice is imputed, that until the expiration of the statutory interval, the intention of the qualified property owners is not finally expressed, but until the ten- days has ended may vary and is subject to reversal on reconsideration.'

Decisions which may be of guidance, while not express authority, may be found in proceedings under the laws of the various States to secure liquor licenses, establish drainage districts and locate county seats or public roads. In Sauntmann v. Maxwell, 154 Ind. 114, a. proceeding under a drainage act allowing ten days after docketing of the petition for landowners to object, the remonstrance against the proposed drain was likened to a remonstrance against the granting of a liquor license, and it was therein ruled that any remonstrant had the right to withdraw within the period fixed, whether the remonstrance had been filed or not, and after the ten days had elapsed, the question for determination on the petition and remonstrance was whether or not the required number of qualified landowners were remonstrants at the expiration of such period. [State v. Gerhardt, 145 Ind. 439.] In Ohio it has been held that resident landholders, who have subscribed a petition for road improvement, may, at any time prior to such improvement being finally ordered, withdraw their assent by remonstrance or have their names stricken from the petition. [Hays v. Jones, 27 Ohio St. 218.] In Iowa, in Green v. Smith, 111 Iowa 183, distinguishing earlier cases in 45 Iowa 400, and 47 Iowa 390, it was held that a voter, signing a statement of consent to the sale of liquors under the statute, could withdraw his consent after it is filed, and before it was acted on by the board of supervisors, upon which was imposed the duty of a public canvass of such statement after ten days ’ notice had been given of such intended canvass.

In other States the same principal has obtained recognition and has been applied. [State v. Nemaha County, 10 Neb. 32; State ex rel. v. Geib, 68 N. W. 1081; Perkins v. Henderson, 68 Miss. 631.] The following apt languages justifies its citation: “A remonstrance is defined to be a petition to a court or deliberative body, in which those who have signed it request that something which it is in contemplation to perform shall not be done. There would seem to be nothing irrevocable in the signing of a petition. We conclude that when the petitioners signed and presented to the council the remonstrance, protesting against that for which they have petitioned, and withdrawing their names from the petition, it stood, so far as they are concerned, as though they had never signed it.

“Was the remonstrance in time to counteract the ■ effect of the petition? We think it was. The petition had been presented to the council and it had been referred to a committee of the council when the remonstrance was filed. No other steps had been taken by the council until the petitioners had withdrawn their names from the petition. In our opinion there had not been, at that time, any binding and conclusive action of the council upon the petition. No right had accrued in favor of anyone or which could be enforced by anyone. " [Noble v. Vincennes, 42 Ind. 125.]

Also the following discussion of the question taken from People v. Sawyer, 52 N. Y. 296: ‘ ‘ The question in the present case is, can a petitioner after signing a petition and becoming an applicant by its presentation to the judge, thereafter and before the testimony is closed, withdraw as an applicant and have his name and taxable property excluded from the computation of the applicants? It is said that he can not for the reason . . . that signing the petition is equivalent to casting a ballot in the affirmative and that a signer is concluded by signing, the same as a voter at an election by actually handing and having his ballot deposited in the box. I am unable to see any analogy in the cases. No one has any interest in the petition except the signers. . .

“It.is further urged that a taxpayer, by signing the petition is estopped by the relation thus entered into with the other signers, from thereafter withdrawing therefrom. . „ The signer of the petition acquired no right and conferred none upon any other thereby. . ..

“It is also stated that to permit him to withdraw would be a fraud upon the other signers. But . . . all the right that anyone has, is to have his own name counted and his taxable property computed by the judge in determining the case.

“It is argued that the right given to appear upon the hearing and request to unite in the petition, while the statute makes no provision for the withdrawal therefrom by those who have signed, shows that the legislature did not intend that the latter should have any such right. ... It was not necessary that the statute should give the right to withdraw. This right the law gives petitioners unless prohibited by the statute.

“It is said that the others may have been induced to incur expense upon the faith of his signature in the further prosecution of the proceeding. The answer to that is, that if any of them have incurred expense, it was on their own account and furtherance of their own purposes. Signing the petition conferred no right upon another to expend money on the faith of the signature. No such inference can fairly be made.

“A signer can not be estopped from withdrawing upon the ground that he had induced another to act upon the faith of his signature who will be prejudiced thereby. Besides, signing the petition is only a representation that he is then in favor. . . . It is not a promise that he will not exercise his right to withdraw in case he changes his mind upon further information.

‘ ‘ The allowance of the right to withdraw will tend to prevent fraud in procuring signatures, as signatures so procured will be almost certain to become useless by the exercise of the right by the person induced to sign.”

Appealing again to the provisions .of the statute ■under which, the bills were issued, section 113 declares: “Such special tax bills shall in any action thereon, be prima facie evidence of the regularity of the proceeding for such special assessments, of the validity of the bill, of the doing of the work and furnishing of the materials charged for, and of the liability of the property to the charge stated in the bills. ’ ’ Upon the introduction of the bills in evidence, they constituted presumptive proof of all essentials to recovery and the burden devolved upon defendant to establish the omission of some material step or disprove some substantial element in the proceedings.

Prom the foregoing premises, we .derive the conclusions that the journal of the council kept by the clerk in obedience to the statute [R. S. 1899, secs. 5772-74] inclusive of the report of its committee, was competent proof of the proceedings of the council, but did not prohibit disproof of or inquiry into the existence of the facts prerequisite to exercise of the power to cause the improvement to be made, and the validity of the protest was subject to impeachment by evidence controverting the ownership and authority of the subscribers thereto: that the name of the subscriber to the remonstrance, who had filed her letter of withdrawal before the protest was filed, should have been excluded from computation among the remonstrants; that the signature of the administrator, the mere personal representative of his intestate, was not the owner of realty of the estate within the statute and could not bind the heirs, the true owners of the realty liable to the charge, and he acted without authority and beyond his powers in so attempting by signing. [Mulligan v. Smith, 59 Cal. 206; Rector v. Board, 50 Ark. 116; Batty v. City of Hastings, 63 Neb. 26.] The conveyance in the firm name vested sole title only in the party named and he alone should have been counted as a single remonstrant. [Reinhard v. Lead, etc. Co., 107 Mo. 616, 18 S. W. 17.] The officers of the corporate landowners, unless specially authorized by the board of directors, were without power to bind the corporations by their signatures. [Morse v. City of Omaha, 93 N. W. 734.] That remonstrants had right of withdrawing their signatures until the expiration of the period prescribed; and from the record, as introduced by defendant less than a mar jority of legally qualified remonstrants remained subscribers of the protest at the expiration of the time limit; the council therefore had the power to proceed with the improvement, the issue of taxbills in payment therefor was valid, and the judgment of the circuit court of Franklin county should be reversed. As these conclusions are at war with the opinion of the Kansas City Court of Appeals, expressed in Knopfi v. Roofing, etc., Co., 92 Mo. App. 279, and the city of Sedalia ex rel. v. Scott, 104 Mo. App. 595, 78 S. W. 276, the cause must be certified to the Supreme Court, which is accordingly ordered.

Bland, P. J., and Goode, J., concur.