Smith v. Tobener

32 Mo. App. 601, 1888 Mo. App. LEXIS 422

Opinion

Hall, J.

— I. The first special defense was properly stricken out. It was based upon the theory that the power of the common council of Kansas City to pave the streets of said city is not a continuing power. That theory is erroneous; the power is a continuing power, under the provisions of the charter. Laws of 1875, art. 3, sec. 1, sub. 7, p. 204, and art. 8, sec. 1, p. 250; McCormick v. Patchin, 53 Mo. 33; Farrar v. St. Louis, 80 Mo. 379, 392; Estes v. Owen, 90 Mo. 113.

II. The second special defense was based upon certain provisions of the charter of Kansas City. By the charter it is provided : Section 1: “That no street, avenue, alley, or public highway, or any part thereof, shall be graded, constructed, reconstructed, paved, or macadamized at the expense of property-holders owning the property fronting on such street, avenue, alley, or public highway, unless a majority of the real estate owners, in front feet, of such street, avenue, alley, or public highway, or part thereof proposed to be graded, constructed, reconstructed, paved or macadamized, and are residents of the City of Kansas, shall petition the common council to have such street, avenue, alley, or public highway, graded, constructed, reconstructed, paved, or macadamized.” Laws of 1875, art. 8, sec. 1, p. 250.

The other provisions of the charter material to the second special defense are as follows : Sec. 8 : “ When it is proposed to grade, construct, reconstruct, pave, * * * any street, sidewalk, * * * and pay therefor in special tax bills, and under existing laws, a petition therefor is required. A petition shall be sufficient if signed by property-holders owning a majority of the front feet of property owned by residents of the city and fronting on the street, sidewalk, alley, avenue, or public highway, or part thereof proposed to be improved. When a petition has been signed the same may be published for five days in some newspaper printed in the city, and thereafter the common council shall hear and decide on all objections thereto, if any. If the common council shall, in the ordinance cause to be done the work petitioned for, find and declare that the work has been- petitioned for, and the petition published according to law, such finding and declaration shall be conclusive for all purposes ; and no special tax bills shall be invalid or be affected by any defect in or objection to the petition.” Laws of 1875, art. 8, sec. 8, p. 254.

It is conceded that the legislature could have lawfully conferred upon the common council of the city the power to improve the streets at the cost of the abutting property-holders without any petition ; but since a petition is required, what effect, if any, have defects in or Objections to such petition, upon the tax bills in an action upon them % Improvements of the streets can be made at the expense of the property-holders only in the mode prescribed in the charter. But since the legislature could have dispensed entirely with a petition of the property-holders, if the charter provides, what effect, defects in and objections to the petition shall have, such, defects and objections can have only that effect.

The question going to the bottom of the second special defense is, what does the concluding clause of section 8, of the charter, as above quoted, mean % That clause reads : ‘ ‘ And no special tax bills shall be invalid or be affected by any defect in or objection to the petition.” If these words are to be considered as standing alone and are to be construed by themselves, their meaning is clear and is not open to discussion ; it is what the words import and the second special defense is not maintainable, since that defense seeks to invalidate the special tax bills in suit by reason of certain defects in the petition of the property-holders. The second special defense is based upon a construction that so connects the concluding clause with the preceding words of the sentence, of which it is a part, as to make it depend for its force and effect upon the finding and declaration by the common council. This defense is, in other words, based upon a construction which not only makes the said finding and declaration conclusive for all purposes of the fact that the work has been petitioned for, and the petition published, according to law, but also causes said finding and declaration to protect the special tax bills from attack on account of defects in, and objections to, the petition. But we do not so understand the meaning or effect of said clause. The section first declares what shall be a sufficient petition ; it then provides that the petition shall be published for five days in some newspaper printed m the city ; it then provides that the common council shall hear and decide all objections to the petition, if there be any ; it then provides that if the council find and declare in the ordinance, ordering the work to be done, that the work has been petitioned for, and the petition published, according to law, such finding and declaration shall be conclusive for all purposes. Then follows the concluding clause. That clause has to do, not with a petition free from defects and objections, and conclusively presumed to have been made according to law, but with a petition containing defects and open to objections; and it declares that such defects and objections shall not invalidate or affect special tax bills. That clause does not provide for all purposes, but for a single purpose ; it does not treat of a perfect, but of a defective petition ; it does not declare what shall be deemed a sufficient petition, but it limits the effect of a defective petition ; and there is no more connection between the preceding portion of the sentence and that clause than if the latter were an independent sentence. The preceding portion of the sentence had already, by making the finding and declaration of the council conclusive for all purposes, given to such finding and declaration as great effect as words could give ; they could not be more than conclusive, and they could not be conclusive for more than all purposes. There was no need, therefore, of further words except for the purpose of expressing another principle. Having- provided in full what effect the finding and declaration by the council should have in the preceding portion of the sentence, the charter in the last clause provides for a case without reference to such finding and declaration, and this provision in no manner depends upon or has any thing to do with, such finding and declaration. Where such finding and declaration have been made in the mode prescribed by the preceding portion of the sentence they are conclusive of the sufficiency of the petition, but where they have not thus been made, or where they have not been made at all, the sufficiency of the petition is an open question. For this reason was enacted the concluding clause of the sentence — treating of defects in, and objections to, the petition. That clause means just what it says, that no special tax bills shall be invalid by reason of, or affected by, any defect in, or objection to, the petition. It matters not whether there have. been or have not been the finding and declaration in the ordinance ordering the work to be done, provided for in the preceding portion of the sentence. If such finding and declaration have been made in the prescribed mode, the petition is without defect, and not open to objection, and there is nothing for the concluding clause to act upon; but if the petition is for any reason to be deemed defective, then that clause takes- effect and prevents the defect, whatever it may be, from in any manner affecting the tax bills. This construction, we have seen, follows from the language of the section, it is also supported by the punctuation of the section, which separates the concluding clause from the preceding portion of the sentence by a semicolon. . Punctuation is entitled to very little weight in the construction of a statute, but in this case the punctuation of the statute bears out the construction which the language of the statute requires in order to give meaning and effect to every part thereof. A different punctuation would not have given a different construction of the statute, but the punctuation, being as it is, strengthens us in the opinion that we have correctly construed the statute. This was an action on special tax bills, the second special defense was based on certain alleged defects in the petition of the property-holders ; those defects under the charter of the city could in no way affect the tax bills in suit; for this reason the defense was untenable and was properly stricken out. .

III. The third special defense was properly stricken out. It was based upon the appeal by the defendant from the judgment of the circuit court refusing an injunction in a suit to which the plaintiffs here were parties defendant. The judgment of the circuit court denied the injunction, and the appeal from the judgment did not have the effect to change the character, of the judgment from the denial to the granting of the injunction.' The injunction was denied and the fact that an application had been made for the injunction in no wise affected the rights of the plaintiffs in this case. This case is to be determined as if there had been no such application.

IN. There remains for consideration that portion of the second special defense attacking the validity of the ordinance ordering the work to be done, on the v ground that the common council had no power to consider said ordinance at a special meeting at which the council enacted it. The charter provides: . “Whenever a special session of the common council shall have been called by the mayor, he shall state to them, when assembled, the cause or causes for which they have convened, and their action shall be confined to such cause or causes.” Laws of 1875, art. 4, sec. 9, p. 210. The answer alleged that the special meeting of the common council was called by the mayor for the purpose among other things of acting upon special ordinance number 27461, an ordinance to pave Grand avenue from Twelfth street to Twentieth street, and that the common council, instead of acting upon said ordinance, unlawfully considered, passed and enacted another ordinance, ordinance number 28248, which was the ordinance pleaded in the petition, and was an ordinance to pave Grand avenue from Twelfth street to Twentieth street. At this special session, the common council had the power, we think, to act upon any ordinance for paving that portion of Grand avenue, described in the first ordinance. Their action was not limited to the ordinance mentioned by the mayor, but extended over the subject-matter of said ordinance. The cause for which the common council was called in session was the paving of Grand avenue, the ordinance mentioned by the mayor was only a means of accomplishing the cause, if the council should determine in favor of affirmative action.

Judgment affirmed.

Ellison, P. J., concurs ; Ramsay, J., concurs in the result.