Cox v. William Mignery & Co.

105 S.W. 675, 126 Mo. App. 669, 1907 Mo. App. LEXIS 452

• Court: Missouri Court of Appeals
• Decided: November 4, 1907
• Status: Published

Opinion

JOHNSON, J.

This is a proceeding in equity to cancel certain special taxbills issued against the property of plaintiff by the City of St. Joseph, a city of the second class. After hearing the evidence, the trial court found the issues in favor of defendants and dismissed the petition. The taxbills which gave rise to this controversy were a part of those issued by the city to pay for the cost of “repairing and paving the roadway, constructing sidewalks, curbing and guttering on Twentieth street from the south line of Frederick avenue to the north line of Mulberry street in said city;” Plaintiff was quite active in opposing the passage of the ordinance which provided for the doing of the work. He was present when the ordinance was passed and, if it is invalid because of the jurisdictional defect in its passage claimed by plaintiff, he knew of that defect but refrained from taking any steps in court to prevent the doing of the work, and did not bring the present action until after the improvement had been completed and his property had received its share of benefit therefrom.

Defendants argue from this fact that plaintiff has no standing in a court of equity since he will not be permitted to preserve silence while his property is being benefited under an ordinance which he knows to be invalid, and then to bring forth the invalidity as a ground for the cancellation of the assessment levied against his property. Respectable authority may be found sustaining the principle invoked even in cases Avhere the defect is more than a mere irregularity, but in this state, it has been held on several occasions that the principle does not apply where the work is being done under a void ordinance, i. e., one passed without due observance of all . the precedent conditions required by statute. The persons whose property is to be assessed to pay for the proposed improvement have no more control over the streets than any other persons, nor can it be said that the contractor is induced by their non-action to proceed with the work, and there is no reason for requiring them to invoke the interposition of the courts before the work is 'done in order to escape a liability which has no foundation in law. [Verdin v. City of St. Louis, 131 Mo. L. c. 98; Keane v. Klausman, 21 Mo. App. 485; Perkinson v. Hoolan, 182 Mo. 189.] In the case before us, the specific ground of attack is that the ordinance was not valid because it failed to receive the votes of two-thirds of the members-elect of the council, the number requisite to its passage under the statute then in force. [Laws of 1903, section 8, p. 63.] This, if it existed, was a jurisdictional defect and not a mere irregularity; hence the principle under consideration, for the reasons we have shown, could have no application.

The question, the solution of Avhich decides the case, is whether or not the ordinance authorizing the work, when put on its passage, received the votes of two-thirds of the members-elect. The council, at the time, was composed of nine members, one of whom was absent. The clerk was present and recorded in his minute book the vote of each member at the time of its announcement. That record shows that six members voted for the ordinance and two> against it. Alderman Whalen’s vote was recorded aye, and that of Alderman Bruce no. Next day, a deputy clerk, using the minute book as a guide, wrote a record of the proceedings in the journal. He used a typewriter for this purpose and the record he prepared relating to the ordinance in question coincided with what appeared in the minute book, i. e., it showed six votes for the ordinance and two against it. A copy of the journal entry then was published in the official newspaper, hut before this was done, the deputy clerk, with pen and ink, erased the name of Whalen from among the members who voted aye, and inserted it among those who voted no, and changed the totals to show five votes for the ordinance and three against it. These alterations were made on the journal and the copy printed in the newspaper was of the altered record. At the next jneeting of the council, the minutes of the preceding meeting were approved as printed. The ordinance, regarded by all the members as having been passed, was duly signed by the president of the council and afterward by the mayor, after which the contract was let. The work was properly done and the taxbills duly issued.

Parol evidence was introduced by each party and, from it, the facts clearly appear that Whalen voted against the ordinance while Bruce voted for it. Undoubtedly, a mistake was made by the clerk in the recording of these two votes. The deputy who wrote the journal record and afterward altered it, testified that the alterations werq in his handwriting but that he haa no recollection of the occurrence and did not know why he made the change. He was quite positive, however, that he would not have made it except under order., from the clerk. To avoid a continuance of the cause, it was agreed by the parties that the clerk, if present, would testify that he did not instruct his deputy to change the record and did not know that it had been changed. Further, it appears that it was the custom of the council to treat the approval of the minutes of preceding meetings as a matter of form and that, on this particular occasion, the aldermen had no knowledge of the change made in the record of their votes when they approved the minutes.

It is the contention of plaintiff that the journal record thus approved must be accepted as conclusive of the fact that the ordinance failed to receive two-thirds of the votes of the members elect and that its verity cannot be impeached by extrinsic evidence even in a direct, much less in a collateral proceeding. It is conceded that all the requirements of the statute had been fully performed and, therefore, that the council had jurisdiction to pass the ordinance. It must be conceded, further, that the provisions of the charter that an ordinance of this character must receive a two-thirds majority in order to carry is mandatory, and that if the ordinance in question did not receive such majority, the council had no authority to declare it passed. And, had the fact been established, that the ordinance did not receive the required number of votes, we would encounter no difficulty in coming to the conclusion that the ordinance and tax bills issued under it are void and may be successfully attacked by plaintiff in the present form of proceeding. If the jurisdictional defect asserted by plaintiff related to the proceedings to be had before the ordinance could be put on its passage, the case would fall under the rule followed, by the St. Louis Court of Appeals in Fruin-Bambrick Const. Co. v. Geist, 37 Mo. App. 509, and there could be no doubt that the initial presumption that the ordinance was passed in conformity to law could be overturned by proof of the existence of a jurisdictional defect and that such proof could be made by evidence extrinsic to the record kept by the council as well as by the recitals of the.record itself. But in the present ease, the ground of invalidity arose out of the proceedings in the council relating to the passage of the ordinance, and our first consideration must deal with the question of the character of evidence by which the fact that the ordinance was passed in strict conformity to the mandatory provisions of the charter may he proved or disproved.

The common councils of municipal corporations generally are regarded as miniature legislative bodies and their ordinances are entitled to the presumptions indulged with respect to statutes enacted by the State legislature. [Ball v. Fagg, 67 Mo. 481.] And it is a well-settled principle that parol evidence will not be admitted to impeach legislative records. • There is great diversity of opinion on the question of whether courts can go behind the statute roll and admit evidence to show that the requirements of the organic law were ignored in passing a given statute. The authorities quite generally agree that the testimony of witnesses should not be received to contradict the record and it has been held in many jurisdictions and, for a time in this State, that even legislative records should not be admitted to impeach the attested statute. The main reason underlying this principle is that, since the legislative, judicial and executive departments of government are co-ordinate, each is supreme while acting within the sphere of its prescribed jurisdiction, and it would be an invasion of the province of the Legislature for the judicial department to assert the right to go behind the attestation of the legislative officers that a certain act had been performed in accordance with the requirements of the organic law, by admitting and acting on evidence which tended to show that, in fact, the attestation wasi false. The principle was ably and exhaustively discussed by Judge Scott in Pacific Railroad v. The Governor, 23 Mo. 353, where it was held that courts have no power to look “behind the statute roll in order to determine whether in passing a law the members of the Legislature conformed their conduct to the rules directed by the Constitution to be observed in framing laws,” and accordingly, it was further held that the journals of the houses of the Legislature were not competent evidence to impeach the statute roll which was declared to he “a record of so high nature that it imports absolute verity and cannot be contradicted.”

It will be found that this principle which, to the writer appears to be founded on unanswerable logic, is supported by the weight of authority in other jurisdictions. [2 Wigmore on Evidence, section 1350 and cases cited in notes.] Later, it was re-announced by the Supreme Court in Ball v. Fagg, supra, and applied to ordinances enacted by municipal corporations. In citing with approval the case of Pacific Railway v. The Governor, supra, it was there observed “the principle of that decision would exclude as evidence even the record of the proceedings of the city council to show that an ordinance, valid upon its face, was not legally passed, or was passed and approved prior or subsequent to the date of its attestation.”

But in State ex rel. v. Mead, 71 Mo. 266, the Supreme Court, in effect, overruled the prior decisions to which we have referred and held that the legislative journals, in proper circumstances, might be received in order to show that the law had not been passed in accordance with constitutional requirements. It was said: “The great current of authority is certainly in favor of such evidence for such a purpose, and that the journals may disclose such a state of facts as will warrant the courts in holding a statute void. We have no question but that this view is the correct one. Taking this, then, as the starting point, let us see if, upon examination, the journals will support or overthrow the statute. In order satisfactorily to determine this, it first becomes necessary to inquire whether section 37 is mandatory or directory, for if the latter, the omission of the journals, in certain particulars, would not be a fatal one.”

The justification offered for this apparent assertion of the right to supervise, in a measure, the acts of a co-ordinate branch of government was that “with the advance toward a higher civilization, greater precautions were requisite in legislative matters than in the early days of our stated history.” In State ex rel. v. Field, 119 Mo. 598, the Supreme Court assumed, as a matter of course, the correctness of the rule permitting courts to examine legislative journal entries to ascertain Avhether or not a given act was passed in conformity with the requirements of law, and as we are not advised of any subsequent ruling holding to the contrary doctrine, we must treat the question as settled that the records preserved by the houses of the Legislature which contain a history of the proceedings culminating in the enactment of a statute may be admitted in evidence for the purpose of proving or disproving the fact that the mandatory requirements of the organic law were fully satisfied.

This doctrine, however, even when carried to its fullest extent, does not destroy the presumption of verity which attaches to the enrolled statute. It goes no further than to remove the conclusiveness of that presumption. When the enrolled statute discloses on its face no ground of invalidity, the presumption that it was enacted in accordance with the requirements of law is very strong and may be overcome only by legislative records which clearly show the fact to be otherwise and the burden always is on the proponent of the proposition that the statute is invalid to adduce conclusive proof of that fact.

Assuming for present purposes, without so holding, that ordinances of a municipal corporation relating to the improvement of public streets and the assessment of the cost thereof against the abutting landoAvners should be treated as legislative enactments and, therefore, controlled by the rules we have just discussed, we come to the question of whether or not plaintiff has successfully supported his attack on the validity of the ordinance in question.

The argument that defendants, in the attack they have made on the altered journal record relied on by plaintiff, are endeavoring to impeach the verity of the highest record in a collateral proceeding, manifestly is untenable. Defendants are standing on the official record, the attested ordinance, and since it does not show on its face that it was not passed by the required two-thirds vote, we start out with the presumption that it was passed in accordance Avith the requirements of the mandatory provisions of the charter. Without any further showing, plaintiff must fail in his action. The burden is on him to disclose a ground of invalidity which Avill rebut the initial presumption. This he attempts to do by producing the journal record of the meeting at which the ordinance came up for passage. Had that record unmistakably disclosed the fact that the ordinance had received the votes of less than two-thirds of the members elect, we would hold that plaintiff had adduced evidence of character strong enough to overcome the presumption of validity. But plaintiff did not produce a record unmistakably correct on its face, but one which shoAved that it had been mutilated and altered with respect to a matter of most vital importance. With nothing but the journal before him, a person could entertain no other conclusion than that when the entry was first made, its recitals showed that the ordinance had received six affirmative votes and then that someone had altered it to show that the ordinance had received only five votes and, therefore, had not been lawfully passed.

The general rule is that where a Avritten instrument, Avhether it be a private contract or a public record, is interlined, the alteration is presumed to be bona fide and to have been made before the contract was executed or the record a.pproAred, and the burden, in such cases, is on the party attacking the instrument to show that it Avas altered after execution or approval. But this rule does not obtain where the interlineation is, in itself, suspicious. If it appear to be contrary to the probable meaning of the instrument as it stood before its insertion, or, if it be in different writing from the body of the instrument, or if it destroy the legality of the instrument, or as in the case before us, the validity of the legislative act, no presumption of good faith should be indulged, and the burden should be cast on the party who relies on the interlineation to show that it was made before the execution of the contract or the approval of the public record. In such cases, extrinsic evidence is admissible, not on the theory that it may be used to impeach or contradict a written instrument or record, but that it may be used to establish the actual record. [Yessler v. Seattle, 25 Pac. 1014; Cox v. Palmer, 3 Fed. 16; Dyer v. Brogan, 11 Pac. 589; 24 Am. and Eng. Ency. of Law (2 Ed.), 198; Palmer v. Emery, 91 Ill. 207; State ex rel. v. Alexander, 77 N. W. 841; State v. Mason, 9 So. 776.]

The door being opened to the admission of evidence aliunde, no reason exists for excluding any evidence, whether it consists of the testimony of witnesses or of other records and memoranda which directly tend to establish the actual fact. The minute book kept by the clerk in which he made pencil entries of proceedings as they occurred was properly received in evidence. It showed that the ordinance received six votes, though it contained an error which, in all likelihood, gave rise to this controversy. The testimony of the clerk, his deputy, and that of members of the council likewise was admissible, and it established beyond dispute, the following facts: First, that the alteration was made by the deputy without authority and, we think, without the knowledge of the clerk. Second, that when the council formally approved the minutes of the preceding meeting, no one knew that the record had been altered. Third, that the alteration, while not false as to the fact uttered, spoke blit half the truth, since it failed to show that Bruce cast an affirmative vote. It, therefore, clearly appears by what must be held to be competent evidence, under the peculiar circumstances before us, that the ordinance, in fact, received the required number of votes, and this being true, the attack on its validity should not be sustained.

Accordingly the judgment is affirmed.

All concur.