46 Kan. 666 | Kan. | 1891
The opinion of the court was delivered by
This is an action of mandamus, brought originally in this court by the Columbus Water-works Company against the city of Columbus and its officers and others,
The question as to whether an action of mandamus is the proper remedy or not is waived by the defendants so far as to enable this court to determine the question whether the city is liable or not under or in accordance with the terms and provisions of the aforesaid city ordinance. They claim that the ordinance is wholly void for the reasons hereafter stated. It
The plaintiff claims the reverse of all this. It claims that a valid contract, such as was made in the present case between the city and Long and Doubleday, requiring, among other things, the city to pay rent for hydrants, could be made by the city either by means of an ordinance or otherwise; that the ordinance in the present case was regularly passed, approved, and published; that the yeas and nays on its final passage were in fact taken; that this may be shown and has been shown by the evidence introduced in this case, and the
The facts with respect to the passage of the original ordinance, which was numbered 70, and the facts claimed by the plaintiff to show a ratification and affirmance of the ordinance and of the contract made under it, and the facts claimed to create an estoppel against the city, are substantially as follows: On March 23,1887, the council of the city of Columbus were regularly convened in special session, the mayor, E. A. Crew-son, presiding. The aforesaid ordinance was presented to them for their consideration. It contained 16 sections. Each of these sections was considered separately by the council, and a vote taken thereon by yeas and nays, and upon each section there were five yeas and one nay — Councilmen Lea, Malone, Morris, Spencer and Bowles voting yea, and Councilman Vincent voting nay. It does not appear that there were any other councilmen of the city of Columbus at that time, and probably there were not. As to whether any vote was taken upon the final passage of the ordinance, the journal shows as follows:
“Section 1 was read. The mayor then submitted the question: ‘Shall said section 1 of ordinance No. 70 be passed as read?’ On call of roll, the members voted as follows: Vincent, no; Lea, aye; Malone, aye; Morris, aye; Spencer, aye; Bowles, aye. There being a majority of the council elect voting for the passage of said section, the same was declared duly passed and adopted.
“Each subsequent section of said ordinance, from i to 16, inclusive, was read separately and voted on separately by calling the ayes and nays, and each vote on each section separately resulted in five votes for the passage of each section of said ordinance; Morris, Malone, Spencer, Lea and Bowles*670 voted aye, and Vincent voting nay upon each section. The mayor now declared that each section of said ordinance from 1 to 16, inclusive, has been separately passed by a majority of the council elect; that therefore he declared said ordinance duly passed; that he thereupon approved and signed said ordinance. The same was duly attested by the city clerk, and the city clerk was ordered to have the same published as provided by law. On motion the council now adjourned.’-’
Affidavits of Councilmen Vincent and Malone, which affidavits were by consent introduced in evidence, show that no vote was had upon the final passage of the ordinance; while, on the contrary, the deposition of E. M. Tracewell, who was the city clerk and also the city attorney, and the affidavits of Councilmen Lea and Bowles, all of which were by consent introduced in evidence, show that a vote was had upon the final passage of the ordinance, that the yeas and nays were taken, and that Councilmen Lea, Malone, Morris, Spencer and Bowles voted in favor of the ordinance, while Councilman Vincent voted against it. Also the ordinance appears to be valid upon its face. It was duly approved by the mayor, attested by the clerk, and published. Afterward, and on April-8, 1887, the council were in regular adjourned session. Mayor Crewson and Councilmen .Lea, Bowles, Malone, Spencer, Morris and Vincent were present, and at such meeting the minutes show, the written acceptance of Long and Doubleday “ of ordinance No. 70, as passed by the council on the 23d day of March, 1887, granting to the said Long and Doubleday a franchise and contract for the erection of water-works in the said city,” was presented to the council, and by order of the council was spread upon the record as a part of the minutes; and the acceptance itself shows that it was an acceptance of the provisions of “ordinance No. (70) seventy, passed by the mayor and councilmen of the city of Columbus, Kas., at a special meeting called for the purpose and held on the 23d day of March, 1887.” Long and Doubleday then commenced openly and publicly to construct the water-works in accordance with the provisions of said ordinance No. 70, and continued to so construct them until they were finally completed,
“Pursuant to the foregoing call, the council met at 8 o’clock p. M., Mayor Cheshire presiding. On roll-call the following couneilmen responded ‘present:’ Morris, Crisman, Butler, Malone, and Bowles. The mayor then stated that all councilmen elect had been personally notified of the call for this*672 special meeting, and announced that the council would now proceed with business before them, there being a quorum present. Councilman Malone then requested a report from Councilman Crisman as chief of the fire department, as to the efficiency of the water-works and the test made of same. Councilman Crisman then stated in open council that in accordance with § 9 of ordinance 70, granting to R. A. Long and L. L. Doubleday a franchise to construct and operate water-works in the city of Columbus, Kas., that a test of the water-works aforesaid having been made by the fire department, mayor and council of said city, on or about the 30th day of December, 1887, and a second test made January 6, 1888, and that from such test said water-works fulfilled the requirements of said ordinance. He thereupon introduced the following resolution:
“ ‘Be it Resolved by the Mayor and Council of the city of Columbus now in Council Assembled, That the water-works constructed in the city of Columbus, by Messrs. R. A. Long and L. L. Doubleday, under and by virtue of ordinance No. 70, entitled ‘An ordinance granting to R. A. Long and L. L. Doubleday, their heirs and assigns, the right to construct and operate water-works in the city of Columbus, Kas., also contracting for the supply of water for extinguishing fires and other purposes,’ and also under ordinances numbered 71 and 75, being amendments to said ordinance No. 70, be and are hereby approved and accepted, and that the rental of the fire hydrants of said water-works constructed as aforesaid shall commence on January 1, 1888.
J. A. Chisman, Chief of Columbus Fire Department.’
“By motion, Councilman Bowles moved that said resolution be adopted, and that it be voted upon by yeas and nays. The roll of councilmen then being called, the-vote was as follows: Morris, aye; Crisman, aye; Butler, aye; Malone, aye; and Bowles, aye. The mayor then declared the resolution unanimously adopted.' There being no further business, the council adjourned. R. M. Cheshire, Mayor.
“Attest: W. J. Moore, City Cleric.”
Afterward, and for the years 1888, 1889, and 1890, taxes were levied by the city to pay for the use of the hydrants, as provided for in the original ordinance No. 70, and the rent for such hydrants was in fact paid for the years 1888, 1889, and the first half of the year 1890. The plaintiff, the waterworks company, and its predecessors, Long and Doubleday,' complied with all the terms and provisions of all the ordinances, and fulfilled their part of the contract in every respect, furnishing to the city the hydrants and the water contracted
The only grounds upon which it is now claimed that ordinance No. 70 is not valid are, that no vote was taken upon’ its final passage; that the yeas and nays upon its'final passage were not taken, and that they were not entered upon the journal by the city clerk; and it is claimed that all these things must occur in order to render the ordinance valid. Section 9 of the second-class-city act, so far as it is necessary to quote it, reads as follows:
“ Sec. 9. All ordinances of the city shall be read and considered by sections at a public meeting of the council, and the vote on their final passage shall be taken by yeas and nays, which shall be entered on the journal by the clerk, and no ordinance shall be valid unless a majority of all the members elect vote in favor thereof.”
In our opinion the evidence satisfactorily shows that the ordinance was finally passed; that a vote was taken upon its final passage; that the vote was taken by yeas and nays; that Councilmen Morris, Malone, Spencer, Lea and Bowles voted yea, and that Councilman Vincent voted nay; but that such vote was not entered upon the journal by the city clerk; and the clerk himself testifies with reference to how this failure happened. The clerk at the time was Edward M. Tracewell. He was also at the same time the city attorney, and he advised the council not to pass the ordinance. The meeting was held in the office of the mayor, while the journal was'at his own office, in another part of the city. Tracewell, at the time the ordinance was passed, had, as the city attorney, the statutes prescribing how city ordinances should be passed open before him, and he remembers not only that a vote on the final passage of the ordinance was taken, and that it was taken by yeas and nays, but also that it was taken in exact
“The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy, as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and .designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered. And not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor ■ does its vitality remain in abeyance until it is put upon the record. The entry may be supplied, perhaps after the lapse of years, 'by an order nunc pro tunc. But it must not be supposed that this proceeding is required to give existence and force, by retrospection, to that which before had none. As is said by the supreme court of California: ‘The enforcement of a judgment does not depend upon its entry or docketing. These are merely ministerial acts, the first of which is required to be done for putting in motion the right of appeal from the judgment itself, or of limiting the time within which the right may be exercised, or in which the judgment may b.e enforced ; and the other, for the purpose of creating a lien by the judgment upon the real property of the debtor. But neither is necessary for the issuance of an execution upon a judgment which has been duly rendered. Without docketing or entry, execution may be issued on the judgment and land levied upon and sold, and the deed executed by the sheriff in fulfillment of the sale, not only proves the sale, but also estops the defendant from controverting the title acquired by it/ And it follows, a fortiori, that if the entry, though attempted to be made in due form, does not correctly record the sentence of the court, or is defective or ambiguous or otherwise exceptionable, still this will not weaken the force of the judgment as a judgment/7 (Sec. 106.)
“The object of this entry is to furnish an enduring memorial and incontestable evidence of the judgment, and to fix its date for purposes of appeal or creating a lien. But, as was stated in the beginning of this chapter, this proceeding is min*676 isterial only, and is not essential to the validity of the judgment itself. It is none the less the judgment of the court because not entered by the clerk; and, except for certain special purposes, it does not remain inchoate or unfinished until so entered. Hence the neglect or failure of the clerk to make a proper entry of record of the judgment, or his defective or inaccurate entry of it, will not, as between the parties, operate to invalidate the judgment. ‘The fact that the clerk did not perform his entire duty in making up the record cannot deprive parties of their rights.’” (Sec. 110.)
Some further questions have been presented to this court by the briefs and oral arguments of counsel, but we do not think that they require any further comment on our part. Whether a city can grant a special or exclusive privilege to-any one for either a long or a short period of time, we do not think it is necessary now to consider, for we do not think that any such question is fairly presented by the facts of the case.
The peremptory writ of mandamus will be allowed and issued as heretofore stated.