159 Mo. App. 318 | Mo. Ct. App. | 1911
This is an action on special tax. bills issued July 28, 1904, by the city of Lexington, a city of the third class, in payment of the cost of grad
It is conceded that the improvement was completed in comphance with the requirements of the ordinance, contract, plans and specifications. In April, 1903, the city reorganized and was incorporated as a city of the third class. All the officers elected in 1902 under the special charter held over and continued to discharge the duties of their respective offices until the election or appointment and qualification of their successors without question from any source and with general public recognition of their right so to hold over. The first election of officers after the reorganization was in April, 1904. The elective officers of cities of the third class do not include the office of city engineer (R. S. 1909, sec. 9147) and no successor to Duncan was elected. But the „ statutes provide (sec. 9157) that “the mayor with the consent and approval of a majority of the members elected to the
The validity of the taxbills is assailed by defendants on the ground that since the office of city engineer is not made a charter office by the laws relating to cities of the third class, one effect of the reorganization of the city of Lexington was the immediate extinction of the office to which Duncan was elected and'was holding and that, thereafter, his acts as engineer were void and could not be validated by public recognition and acquiescence. The argument of counsel for defendants may be reduced to the proposition that Duncan could not be a de jure officer after his office became non-existent and that he could not be regarded as a de facto officer for the reason that there can be no such thing as a de facto officer where there is no legal office for him to fill. Our conclusion is that the reorganization and reincorporation of the city did not have the effect of abolishing the office of city engineer and that until his successor was appointed, Duncan lawfully exercised the functions of that office as a de jure officer.
While the statutes governing cities of the third class do not make the office elective they do give such municipalities power and authority to make it an appointive office and the statutes relating to public improvements clearly express the legislative idea that the power thus conferred generally will be exercised and that an engineer will be appointed as a necessary part of the governmental machinery of such cities. To say the least, the office is not inconsistent with
In the statutes applicable'to cities of the third class (sec. 9144) we find the provision “The jurisdiction of any city which shall organize under the provisions of this article shall not in any wise be affected or changed in consequence thereof . . . and all laws or parts of laws or ordinances, not inconsistent with this article, which were in operation in 'such city prior to its organization under this article, or prior to the passage of this article shall continue in force until repealed.”
We regard this statute as expressive of the intent of the legislature that a city changing to the third class from another class shall' not be plunged into chaos or even crippled by having its laws ipso fado repealed or its offices abolished. As long as the existing laws and offices are not inconsistent with those provided for or contemplated in the statutes pertaining to cities of the third class, the orderly and sensible administration of public affairs demand that they be continued until they are repealed and superseded in the usual course of such matters. “The adoption by a municipality of the provisions of a general law does not affect the provisions of a former special charter not inconsistent with or repugnant to the provisions of the general law.” [Cyc. vol. 28, p. 244.]
“The statutes providing for reorganization usually contain specific provisions' for officers; but lacking such provisions the courts hold that the officers of the old corporation hold their offices and exercise their powers until the officers of the succeeding corpora
We approve this rule and applying it hold that since the continuation of the office of city engineer was not inconsistent with the laws relating to cities of the third class, the omission of that office from the statute prescribing the elective offices of such cities did not have the effect of depriving Duncan of ■ the right to hold over, as one of the de jure officers of the city.
' It is argued as a ground for attacking the tax-bills that the ordinance under which Wilson was appointed to succeed Duncan was invalid for certain reasons specified in the briefs and argument of counsel, but we find this point likewise must be ruled against the contention of defendants. We may concede for argument that the ordinance is' subject to the objections urged against it but this concession does not call imperatively for the conclusion that Wilson was a mere intruder. The abortive attempt to establish the office of city engineer as an appointive office did not have the effect of abolishing the existing office and while the mayor and council, in the absence "of a valid ordinance, had no authority to appoint Duncan’s successor the induction of their appointee into the office and the general public recognition of him as the lawful incumbent of a legal office, constituted him city engineer de facto, and gave validity to his acts as such officer. [Usher v. Telegraph Company, 122 Mo. App. 98.] In that case we quoted
“An officer de facto, is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where .the duties of the office were exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of known and valid appointment or election, but,where the officer failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; (4) under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such.”
The third of these rules applies to the present case and affords sufficient support for our conclusion that Wilson, at least, must be recognized as a de facto officer. And we shall add that we do not look with favor on the contention of defendants that would deprive of his just compensation the contractor who performed his contract'in strict compliance with all of the requirements of the law necessary to give it validity. No rights of the public or of property owners were violated or impaired in any way, and to allow the contractor, without any fault on his part, to be deprived of his reward on a mere technical objection that the engineer in office when the assessment was levied was not legally appointed, would be nothing short of a judicial outrage.
We find no error in the judgment and it is affirmed.