*1 FULTON et al. LOCKWOOD
CITY OF
No. 43788.
Supreme Missouri. Court of 2.
Division No.
April 12, 1954. Rehearing toor Transfer to
Motion for Court en Banc Denied June *2 County,
Dade Missouri. Plaintiff claimed he was entitled under a contract *3 for engineering pity’; services to the $2,500 $8,800 of said received; had been that he had been dismissed without cause by defendant project before the was-under taken, and judgment asked for the balance fee, of his $6,380. to wit: Defendant claimed the execution of the contract lawfully never been authorized by city, and in a sought the counterclaim recovery $2,500. of the Judgment . against entered plaintiff petition on his for $2,500 defendant sum on the counterclaim. appealed Plaintiff has from the judgment against petition him on his and the judgment in favor of defendant on its counterclaim. The amount dis pute exceeds jurisdic we have tion appeal. of the Scott, Dawson v. 88[1]. The trial was to the court without jury. We review the law and the evi dence equity. as in suits in Consentino v. Heffelfinger, 1 ]; Kempland, Scott v. Mo.Sup., 549[ 349, 355 [10]. The main issue ‘plaintiffs is whether is ultra vires and void because its execution on city behalf of the never authorized' writing required 432.070, 79.150 and §§ hereinafter quoted. (Statutory references are V.A.M.S., RSMo 1949 and unless other- wise indicated.) Lockwood is a of the fourth Combs, class. mayor, Dr. T. D. August plaintiff, wrote reg- istered and licensed consulting engineer of .Douglas Meyer, Moore Ludwig T. County, Missouri, St. Louis stating he appellant. Clayton, glad would be hear from if him in- sanitary terested in a sewerage system Newman, Neale, Bradshaw, Freeman & was thinking of constructing.
Neale, Bradshaw, Paul Harry G. Jean Neale, Springfield, respondents. reply plaintiff, A under date of August 1945, was received. Plaintiff, experienced matters, in these enclosed a BOHLING, Commissioner. copy of Title V of the War Mobilization ,by This is an action and, Edward A. Act. Reconversion 58-U.S. (cid:127) against Fulton (plaintiff-appellant) 791, §, the Stats. advising-that thereunder City of Lockwood cities (defendant-respondent), might “grant receive a of cash from Abbiatti, Ful- prep- Edward A. Clerk. for the W. Agency” Federal Works con- testified most of the ton.” Plaintiff municipal projects, plans for aration tract the work counselor. available funds” far no that “so advised He also for construction. speci- plans prepared the constructed, never project were if fications, reported completion to the their repay the obligated to city was not October, 1946,. Agency in Federal Works “Uncle would stating the loss grant, city. to the and delivered them copies of two enclosed He Sam’s.” $160,000, which *4 estimated total cost was of suggest- grant, Federal for a application $2,500- $148,000 construction and was for that “100%,” and for it filled out ing that be plan preparation. received was for He por- its to raise city expected state the $1,250 November, “ his first in Obligation by ‘General costs tion of the ” it is a case He stated be voted.’ Bonds to board, journal A search of the of and, his served”; if come, first of “first by plaintiff aldermen and defendant re- of he would approval, stated met with letter any meeting no of of the vealed minutes “ap- executed upon receipt an of proceed 27, 1946, any February au- on city. map of and plication form” thority the contract for the execution of an en- copies of city. two plaintiff on The Plaintiff enclosed with behalf expected the contract, longhand he kept which note- minutes were on gineering prelimi- “this paper intermittently it secured city if and therein to execute book I am not get started. nary we pages and had been tom out. grant executing this city particular about the journal Plaintiff had never examined the your you get After right now. city of had not seen a certified' and government from the funds ‘offer’ of copy any minutes of the aldermen- of enough.” soon contract, authorizing the execution of the of the con- introductory paragraphs The copies that certified were not re- stating plain- of engineering services for the tract quired by agency in the Federal Missouri. “ *** City of part tiff read during 1945 and 1946 he He testified Missouri, through Lockwood, of occasion,, only on one was in Lockwood Mayor Board its and of regular action for night “we met over the- there day Aldermen, did, upon 27th of of which, contract,” signing purpose of A.D.1946, meeting of February, at a testify thought, could not of his. he Aldermen, and of Mayor and Board said February 27, 1946. knowledge, was own means, necessary take by proper legal mayor, city clerk and four He stated the * * * ”; engineer employ to an action present. He could not aldermen were “ * * * made agreement, this and aldermen, except the names of the recall A.D.1946, February, be- day of 27th this He Keran. “believed” the alderman Otto of City Lockwood, State Mis- of tween minutes, taking and “believed”' -clerk Part, through Party its souri, the First of Keran, over,, when the discussion was Mr. officials,empowered by law duly constituted motion the contract be en- made the contracts, Edward A. and into to enter he then into. He stated executed the tered ** Engineer Fulton, Consulting mayor city saw the and clerk contract and for his plaintiff receive provided that It sign it. the construction percent of six services testimony of the substance $1,250 paid We state improvement, to of cost city. on behalf of the matter on this the Federal received from were funds when Abbiatti, clerk, plain- Ray city testified city purposes W. Agency for Government members of the council with with plans tiff met $1,250 final when additional an $2,500grant from respect the Fed- to complete and delivered specifications planning project, for government “City eral signed of city. Lock- It is government the Federal Combs, Mayor. and stated Missouri, by D. wood, T. making grants additional contemplating Ray Lockwood) (Seal Attest upon It is and he offered in evidence the trial. systems constructing sewer city before us. Kelso v. W. A. Ross Const. appropriations if the assist the could Co., [2]; 530 prepared had were made. Brune, Mo.Sup., $2,500 the Weir v. application grant from for a Moreover, entry 811[2], “Supplemental A journal government. Federal Appeal” mayor Transcript on fails to show May authorized compliance provisions with the 512.- apply received therefor. paid this subd. and is not for consideration two installments money testi- here. plaintiff. The clerk a sheet while he tore fied that once in a provides: Section 79.150 “The board else but journal something out of the kept jour- aldermen shall cause to be journal never sheet out of the
had taken a ayes proceedings, nal of its any the records of on which nays any shall question be entered recorded; that a had been been sheet ” * * request any two members. *5 minutes of the meet- out between the torn 1946, provides: March, county, Section February but 432.070 “No ings of and * * * town, city, village any minutes or other the did not contain that sheet municipal corporation contract; any respect that shall make plaintiff’s con- with * * tract, *; contract, unless aider- and meetings all the of the such minutes of including consideration, the were in the shall be in men of recorded writing there; made, and dated when and journal and are now that there was shall February by parties thereto, be subscribed meeting council no of the on or 1946, agents 27, by their authorized duly and the minutes contained law and that appointed mayor or and writing.” authorization for the authorized in no plaintiff. any sign clerk to contract with the statute, 79.150, requiring § plaintiff Hugh Gerry testified that if the board of keep journal aldermen to present one in 1945 meeting at but acts, evidencing the and resolutions ordi 1946, present he was also that and nances of is mandatory. City paper signed meeting, and that was there no Lynch-McDonald New Franklin ex rel. meeting. questions at that Mr. Edwards, Const. Co. v. Mo.App., 23 S.W. time, Gerry being alderman at that but 235, City 237[2]; 2d of Brunswick ex journal that he aider- shows was an Scott, rel. Barkwell Mo.App., 45, v. 219 April expired and term man that his 994, 275 S.W. The minutes of 995[1-3]. of 1946. journal indispensable are the record of the existence city, acts of as petition first amended Plaintiff’s only the board of aldermen speak can 6, February filed was 1953. Defendant’s through its record. Cases supra; Eureka and first amended answer counterclaim City Mfg. Fire Hose Co. v. Portage 11, February ville, was filed 1953. trial Mo.App., 513, 106 S.W.2d 516. When February pleadings on said on collateral to pending parol proceeding, 1953, 11, ready parties answering both evidence to establish existence of an presenting argument In trial. his ordinance has been considered not ad finding judgment court’s and is missible. The New Franklin and Bruns plain weight of the against the cases, supra; wick Lebanon Light Mag & paragraph tiff first of defend refers City Lebanon, netic Water Co. v. 163 original admis ant’s counterclaim as an 260, 254, 811, Mo. part plaintiff on and sion defendant’s It legally lawfully has been defendant entered considered sufficient necessary 4Í32.070, upon. plead supra, under the contract sued These into authority to execute are found what contracts ings designated on of' a “be “Supplemental Transcript Appeal.” behalf entered of record upon the minutes of the board of original Defendant’s counterclaim was not alder- ,g establish, objections interposed, over of Rolla of Public Works
(cid:127)men.” Board 730, required authority statutory ex written Corp., 362 Mo. v. Power Sho-Me ; secondary parol ecuting 55, 244 Austin-Western S.W.2d 60[5] evidence was insufficient the above City New under Machinery v. Ma Co. Road 850, 853[7]; authorities. See also ex rel. Barkwell drid, Mo.App., 185 S.W.2d . 683, . Trimble, 546, Soto, Mo.App., 35 v. 309 274 S.W City of De Haskins v. ; City Where, ex rel. Bark in the Brunswick 967[4, 684[1-3] S.W.2d 5]. Scott, Mo.App. 45, well v. 275 .kept S.W. case, author no record instant 994, 995[5, city to anyone en 6]. on behalf of izing contract, court stated.the ter into the plaintiff’s We have read cases. Bon void from the order “was contract or Pearce, Inc., District, &sack School v. Mfg. Hose Co. beginning”. Eureka Fire Mo.App. supra Portageville, S.W.2d [106 parol testimony supply held admissible to Soto, De In Haskins v. 516]. supplement omitted facts or actions to supra, showed the journal entries written record of a school mayor adoption authorizing the of a motion fully taken might action and things done contract, generally to enter into the truthfully appear. State ex rel School defined its terms. Smith, District of Affton v. 336 Mo. has dictum. like Compton Co. State ex rel. William R. It cites 167, effect. author of Walter, *6 Compton State ex rel. William R. v. Co. to [7], proceeding in mandamus 171 was a Walter, supra, holdings that the wherein secretary levee to compel the of a district existence of ordinance could not es be the in the record book of the district record by parol secondary tablished or evidence in alleged of a to have been meeting minutes situations like the instant case are said to by is “The held the It there stated: board. correctly law, state the- 23 S.W.2d loc. cit. the rule is well settled that where statute 170[6], In City Lebanon, Crebs v. of keep requires municipal corporation to C.C., 549, 551, parties 98 F. acts, stipulated the acts, corporate such when of record .its the that “duly ordinance involved had been question proceed collateral called in a passed.” In Tomp State ex rel. Rice v. ing, only by the be records of can shown kins, Mo.App. 1113, 239 where, 203 881 S.W.2d corporation; as in this 3], no kept records had case, been secretary [ between of the board failed to 1 — 11, 1931, May 7,- 1936, and March proceedings record make a certain of. court was considered vested with board, a dis by proceeding direct and a parol cretion to admit secondary or compel evi against him-to him to brought make dence. In the instant case record, the records were the best evidence rule such a .is kept testimony they parol con by not the introduction of violated tained all the' period entries for the in prove actually what the" board to evidence ** volved. Neither Scrivner v. American Car ex rel. Marcum v. did Co., Foundry 408, & Mo. 50 385, 330 389, Sappington, Mo.App., 261 S.W.2d S.W.2d 1001, 1008[7, 8], Budde, nor Seibert v. 3], [2, followed State ex rel. William 390 Mo.Sup., 8, 226 Walter, [1], supra, S.W. 11 Compton stating: v. min R. Co. involved authorizing by. utes an act correcting the to minutes show of al “Without expending public dermen authorization, there is no funds. con the written way that could establish ceivable .relator (cid:127) validity his contract” sufficiency of of prelim
inary proof for the admission of second ary parol or being no or rests There minute other in the sound journal of board of in the aider- discretion the trial court. Scrivner v. record execution authorizing Foundry of the con Co., American Car & men and State city, Tompkins, supra. behalf of the collateral rel. v. Rice proper tract on ex A requires seeking proof, first, in- the instant case proceedings foundation an ex-
7 provisions tional entry au só far we have -discov journal at of a one-time istence contract;' 1939, 7180, 7368, 7152, ered. RSMo thorizing §§ execution 95.405, 95.135, 95.410, 95.115 de Sections and, second, had been lost 95.160, 1949, -V.A.M.S.; Bark V.A.M.S. rel. RSMo ex stroyed. City Brunswick Mo.Const.1875,' X, -12, ,12a, rel. Art. Mo. ex v. and State Barkwell v. §§ well Scott Const.1945,-Art. VI, 26(f). Un 76(a) liberal Trimble, The trial court supra. § ' ’ riot, provisions municipalities der said- of evidence. may in the admission spend spend, to' or contract -become indebt ¿mount ed, -an exceeding; income-and contention Plaintiff’s provided year revenue in the calendar asserting the defense estopped from city is volved, plus any :-unencumbered balances nev of the contract was execution forbidden;to previous years; an are do is disallowed. We legally er authorized ticipate subsequent n general revenues "509.090; pleaded. Nul estoppel not find years, permissible rgen- additional Co., & Pigments Chemical sen v. National -obligation eral must bonds 410, authorized 414[3]; 1246, 145 S.W.2d 346 Mo. 'two-thirds, by required of .the vote Busch, Fehlig 165 Mo. v. Stanberry, qualified Sager City electors. v. Furthermore, municipalities 542, are 550. 213, S.W.2d 431, 435[2, Mo. 78 36 by acts of estopped the unauthorized 3 4, 5]; Grand River v. Cooke Township Mfg. Fire Eureka Hose Co. their officers. Service, Inc., Mo.Sup., Sales 267 Mo.App., 106 City S.W. Portageville, S.W.2d contemplated 322. he T action 513, much like the instant 516[3], a case 2d ‘ powers, of its excess case; City, Kansas 348 Mo. Fleshner ultra and void ab vires initio. It is sound 707; 706, 978, Donovan v. 156 S.W.2d validity to rule the the contract City, Kansas laws in effect the time of its execution. 108; Traub v. Buchanan Light Laclede Power & Co. v. of St. County, 341 Mo. S.W.2d Louis, 73[7]; city sought states in his brief Steinbrenner v. Joseph, of St. *7 the undertake had funds to to show never 892(III). plain- project according sewerage the to. estimate, says city’s Plaintiff the plans and that the “record is devoid of and tiff’s -support in of evidence the the con- the counterclaim.” valuation at time of assessed charged The in city its $470,000 it could an ad- counterclaim that was and tract incur paid plaintiff of its officials general obligation in certain indebtedness ditional $2,500 in $50,000 total of connection with only of about time. the sew- bonds erage system project, pay- and avoid this defense on the that said Plaintiff would without legislation ments were providing for authorization of ground Federal law city projects pend- because had never to for such entered grants cities into a the. plaintiff with statutory payment contract for the ing, enactments were later of and Mo.1951, p. 638, said It is city 250.01Ó sum. admitted that the passed, Laws §§ offi7 paid plaintiff and 250.250, authorizing projects $2,500. such cials to be received the to by bonds. revenue The stated financed not well taken. is
contention The public funds were funds.
Public officials discharging duties with re spect are not Plaintiff testified thereto dealing he knew the with their any persons All áre charged own. city “didn’t have available.” with knowl [funds] edge percent of of the laws protection for six the estimated enacted for the His suit is public property and uj4 required of are cost. It is based construction to take city incurring an notice thereof. Public indebtedness far in officials act in 're public any general obligation gard of funds in bonds the to a trust capacity excess as public. lawfully issue at servants of the beyond could time un Their acts statutory scope applicable their authority are, and constitu- of der and are 8 BARRETT, CC., con- WESTHUES and unauthorized, not bind do be, to known cur. their are mistakes and their principal,
their sover- of their mistakes not the own public protection' The of eign. PER CURIAM. of- requires public public policy declared BOHLING, opinion by foregoing The statutory mandatory comply with to ficials C., adopted opinion is court. may not requirements and such provisions, only compliance when aby avoided be All concur. records comply. Public fit to sees official certifica- inspection and for are available Rehearing Transfer On or Motion public officials. dealing with those to tion to Court en Banc controversy differs from The situation involving private citizens between PER CURIAM. he may will with what that one do principle for rehearing has filed a motion men- hereinbefore Authorities his own. alternative, or, transfer in con- plaintiff’s effect are to the tioned en Banc. Court beginning and was void tract Fire Hose presented, Eureka we ratified. Of the several contentions be could Mo.App., Portageville, only that need be considered Mfg. one Co. v. think cases, citing opinion 512, 516[1, 2], that the in con- the contention is S.W.2d is City, Slater, Mo., Kansas approved with Bride in Fleshner flict The in- it was wherein held S.W.2d 707[3]. of city money because not defective not recover the volun- contract could stant which irregularity tarily accepted omission paid or some for fuel oil and used some proceed- supplied in- instant which might by be under parol by secondary mandatory evidence to ings it did not meet the void because fully requirements (quoted Under the show the action taken. 432.070 opinion), requiring of a contract the consideration instant record the execution plaintiff mayor writing. holding with clerk was limited ex- press aider- terms the circumstances was never authorized established that bar differs on the facts men. The evidence case. case at plans project plaintiff’s under of record that cost of the there is in that specifications prohibitive. Riley v. specifications the instant plans and Port, Mo.App., 165 City of Rock because the cost discarded plaintiff *8 Futhermore, 880, only involving 889[12-15], case the instant prohibitive. percent plain- plaintiff, does not es- for six cited public funds suit plaintiff’s presented a con- construction costs The case error. tablish tiff’s estimated sewerage system defendant issue, supported which was fact tested position lawfully following pro con. The sus- appli- under Township the construction Lamar v. finance judgment. tain provi- 171, statutory constitutional Lamar, seq., Mo. 187 et City cable 16; holding mindful of the Weatherby, v. We sions. Slater, but considered 890[2-10]; in Bride v. 344 Mo. distinguishable City, 348 consider Kansas and still Coleman 15]; case. 644, 649[12, Kansas instant Halvorson, rehearing or, in the motion for 497[2]. alternative, for transfer to Court en Banc overruled. judgment is affirmed.