Webb v. Strobach

127 S.W. 680, 143 Mo. App. 459, 1910 Mo. App. LEXIS 268

• Court: Missouri Court of Appeals
• Decided: April 4, 1910
• Status: Published

Opinion

NIXON, P. J.

This was an action by the abutting landowners on Pine street in the city of Rolla, Missouri, to restrain by injunction the defendants as mayor and members of the board of aldermen of said city from paving Pine street with brick. On a trial of the case before the circuit court, a perpetual injunction was issued, and the defendants have appealed. The facts of the case will develop in the opinion.

On the 3d day of May, 1909, the defendant, Charles T. Strobaeh as mayor, and the other defendánts as members of the board of aldermen, of the city of Eolia, a city of the fourth class, passed an ordinance known as Ordinance No. 1Í2, providing for the improvement of Pine street in said city, which is as follows:

“Ordinance No. 112. A bill for an ordinance ordering the construction of first-class brick paving on Pine street from the center of Sixth street to the center of Tenth street.

“Be it ordained by the board of aldermen of the city of Eolia, Mo., as follows:

“Section No. 1. That there is hereby ordered constructed first-class brick paving, with Portland cement, grout filler, on Pine street from the center of Sixth street where Sixth street crosses Pine street, and from curb line to curb line on said street as provided by resolution approved April 8, 1909, and published April 15 and 22, 1909.

“The city engineer is hereby directed to make an estimate of the cost of paving said street with first-class brick paving with Portland cement, grout filler, as provided for by said resolution, and the plans and specifications of the city engineer for doing said work, ’ and the city clerk to advertise for bids for the construction of said pavement, and a special taxbill will be levied and special taxbills will be issued against the abutting property in payment of said improvement in proportion to the front foot thereof. And this board of aider-men finds and declares that the majority of the owners of property on said street mentioned to be improved and liable for taxation, who also own a majority of front feet owned by property-owners along such street mentioned, have not filed with the city clerk a protest against said improvement.

“Section 2. This ordinance shall be enforced from and after its approval by the mayor.

“This ordinance was passed by the board of aider-men at a meeting held May 3, 1909.

“Approved May 3, 1909.

“Chas. T. Strobach, Mayor.

“Attest: W. J. Pierce, City Clerk. (Seal)”

The respondents, abutting landowners, on the 11th day of May, 1909, filed a petition for an injunction praying that the mayor and board of aldermen of the city of Rolla be enjoined and restrained from letting any contract for the improvement of Pine street or doing any work towards paving said street under the ordinance of May 3, 1909, and that such ordinance be declared null and void. Upon a final hearing of such petition, a permanent injunction was granted by the trial court as prayed in the petition.

The question presented for review in this case is as to whether the board of aldermen had jurisdiction to enforce ordinance No. 112 ordering the construction of brick paving on Pine street in said city of Rolla. The respondents attack the jurisdiction of the board of aldermen to enforce such ordinance on several grounds set out in the petition which will be considered in their order.

I. On the 8th day of April, 1909, the board of aldermen passed a resolution declaring the necessity of improving Pine street which is as follows:

“Resolution No. 5. — Declaring it necessary to improve Pine street from the center of Sixth street to the center of Tenth street by paving the same with first-class brick paving.

“Be it resolved by the board of aldermen of the city of Rolla, Mo., that this board of aldermen deem it necessary to improve Pine street from the center of Sixth street to the center of Tenth street and. from curb line to curb line by paving with first-class brick paving, with Portland cement, grout filler, and concrete base, as specified by ordinance No. 102, approved Feb. 27, 1909.

“This board of aldermen hereby declare said improvement necessary to be made and the same shall be done according to the plans and specifications and estimates of the city engineer, and a special tax will be levied and special taxbills issued for the payment therefor according to the front foot thereof.

“Approved this 8th day of April, 1909.

“Chas. T. Strobach, Mayor.'

“Attest: W. J. Pierce, City Clerk.”

The respondents charge in their petition that such resolution was not ordered published as required by law and was consequently invalid. The statute, section 5989, Revised Statutes of 1899, declares that when a city of the fourth class desires to pave its streets, “. . . the board of aldermen shall, by resolution, declare such work or improvements necessary to be done, and cause such resolution to be published in some newspaper published in the city, for two consecutive weeks.” It is claimed that the proceedings of the board of aldermen were fatally defective because this resolution did not order its publication or designate the paper in which the resolution should be published.

It will be seen from an examination of the language of the statute that it does not require that the board of aldermen should designate the paper, or by ordinance or resolution cause the publication to be made. Its language is, “. . . the board of aldermen shall . . . cause such resolution to be published in some newspaper published in the city, for two consecutive weeks.” The word “cause” is a word in common use and is well defined in the dictionaries as meaning “to effect,” “to produce,” “to bring about,” and the mode in which publication is to be effected, produced or brought about is not specifically designated by the statute.

But we are not required to determine whether the resolution as it originally stood was sufficient to give the city authority to publish the resolution or whether it was indispensably necessary to the validity of the proceedings that the board of aldermen should provide for its publication by ordinance or resolution. On June 28, 1909, the board ordered interlineations in the nature of a mmo pro tunc amendment to the resolution which appear in the record as follows:

“It appearing to the board of aldermen that in the minutes of the proceedings of this board, appearing on page 388 of the city minute-book record of the meeting of April 8, 1909, the minutes are incomplete and do not show the exact proceedings of the board. It is therefore ordered that in order that the minutes of the said meeting may show the exact proceedings held at said time, the minutes of said meeting be corrected by the interlining in said record of the said meeting of the seventeenth line of the said page 388, the following:

“ ‘It is further ordered by the board of aldermen that said resolution No. 4 and 5 be published in the city of Rolla, No. 4 in the Rolla Noto Era, and No. 5 in the Rolla Herald-Democrat, and the clerk is ordered to have the same published.

“It is further ordered that the clerk interline this order of correction.

“Upon motion of Alderman Faulkner, seconded by Alderman Rucker, the above correction was ordered. Ayes — Aldermen Crites, Faulkner, Rucker and Stimson. 4 ayes. Nayes — -Alderman Heimberger. 1 nay.”

The amendment as ordered and made fully meets the objections of the respondents. But the right to make such amendment of the minutes is challenged by the respondents. The authorities show that the right of amendment by a board of aldermen of its minutes or by the clerk of a municipal corporation is very broad. A nunc pro tunc amendment may be made on the minutes at a succeeding meeting. “The city clerk may amend the minutes in the record of the corporation made by himself according to his knowledge of the truth so long as he has custody of them.” [28 Cyc. 346.] “Whenever the city clerk in charge of the municipal records has through inadvertence or neglect recorded proceedings so that they are incomplete, he may amend the record so as to make it speak the truth.” “In the event of the neglect-or inadvertence of the clerk in failing to keep a complete record which has been discovered by the council, the latter may order the record amended so that it will give a correct recital of the proceedings.” [21 Am. and Eng. Ency. of Law, 10; Ryder’s Estate v. City of Alton (Ill.), 51 N. E. 821.] Under these authorities, the board of aldermen had the right to correct the minutes of April 8, 1909, by the entries made by the clerk on June 28, 1909, and as amended, they show that the board of aldermen in publishing the resolution acted in strict compliance with the statute.

II. Another objection made by the respondents to the validity of the ordinance is that B. F. Culbertson was a member of the board of aldermen and also foreman of the Rolla Herald-Democrat, the newspaper in which the resolution was published, and that he fraudulently agreed with the board of aldermen that the preliminary resolution of April 8, 1909, should be published in an obscure part of the HeraldrDemocrat so that respondents as property-owners should have no notice of the proposed improvement and no opportunity to file a protest against the same, and that such collusive agreement in fact accomplished the purpose for which it was intended.

The trial court made the following finding as to the place in which the resolution was published in the Rolla Herald-Democrat:

“The resolution, as published, appears at the bottom of the last column on the-page of the Rolla Herald-Democrat immediately under a medical advertisement Avhich is headed, in large letters, ‘Why not try Popham’s Asthma Remedy,’ and which said medical advertisement is separated from the resolution by a small leadline.”

But the court declined to find and made no finding that the evidence showed that there was any fraudulent combination between Culbertson, the foreman of the Herald-Democrat, and the members of the board of aldermen, and there was no sufficient evidence to justify any such finding. A fair conclusion from the evidence is that there was no “patent inside” to the paper as alleged by respondents, and the size of the type and the place of publication in the paper was entirely in accord with the usual custom in the publication of legal advertisements. In this connection there was also introduced at the trial a number of property-owners on Pine street as witnesses and also other citizens of the city of Rolla who testified that they did not see the advertisement of the resolution in the Rolla Herald-Democrat. It is hardly necessary to say that the law does not require personal notice or that the resolution should be read by any person or number of persons, but only that it should be published. The publication as made was a correct copy of the resolution and Avas duly authenticated as folloAvs: “Approved this 8th day of April, 1909. Chas. T. Strobach, Mayor. Attest: W. J. Pierce, City Clerk. (Seal).” It had no caption other than that of the original resolution which is as follows: “Resolution No. 5. — Declaring it necessary to improve Pine street from the center of Sixth street to the center of Tenth street by paving the same with first-class brick paving.” The publication was in accordance with the statute. It was not necessary to the validity of the publication that it should be printed on any particular page of the newspaper or that it should have any particular caption. The terms of the statute only required that the resolution should be published in some newspaper published in the city of Rolla, for two consecutive weeks, and, in the absence of any showing of any fraudulent collusion between the foreman of the newspaper and the board of aldermen, the publication as actually made was a substantial compliance with the statute.

III. It is further contended by respondents that the board of aldermen had no jurisdiction on the 3d day of May, 1909, to order the construction of the improvement paving Pine street because such order was made within ten days of the last insertion of the publication of the resolution.

The statutes of 1899, section 5989, provides: “. . . and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days from the date of the last insertion of said res1 olution, file with the city clerk their protest against such improvements, then the board of aldermen shall have pOAver to cause such improvements to be made, and to contract therefor, and to levy the tax as herein provided; and the finding of the hoard that a majority of such owners have not filed protest shall be conclusive and final.”

The last insertion of the publication of the resolution in this case was on April 22, 1909, and the 2d day of May, 1909, which was the tenth day thereafter, was Sunday. Section 4160, Revised Statutes 1899, provides : “. . . fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last, and if- the last day be Sunday it shall be excluded.” If the computation is made in this case as required by statute, excluding Sunday, the ten days within which the protest of the property-owners might have been filed with the city clerk expired on May 3, 1909. The board of aldermen, as has been stated, passed the ordinance for paving Pine street on the 3d day of May, 1909, and consequently on the last day on which the protest could have been filed by the property-owners. Under the statute, the ordinance for such improvement was prematurely passed. [National Bank v. Williams, 46 Mo. 17; Miner v. Tilley, 54 Mo. App. 627; State ex rel. v. Stuckey, 78 Mo. App. 533.] There is no conflict in the authorities that when the preliminary notice of proceedings to take property for public use is required to be given as the basis of the jurisdiction of the city or its right to proceed, if such notice is not given as required by the statute or if not given in the manner required, the proceedings are unauthorized and void. [Dillon on Mun. Corps., sec. 606; 28 Cyc. 980.] But the objection now under consideration is not directed to the length of time or manner of publication of the preliminary resolution declaring the necessity for the improvement. We have already found that such resolution was passed and its publication made in accordance with the directions of the statute.

As to whether the passage of ordinance No. 112 on May 3, 1909, ordering the construction of the improvement' within the time allowed by the statute for the abutting property-owners to'file their protest, was without jurisdiction and rendered the proceedings null .and void, depends upon the proper interpretation of the particular provisions of the statute under which -the proceedings were had. This has been made a matter of special enactment by the several State legislatures. In many cases, the right of the city council to pass any ordinance for improvement within the time allowed to file a protest is expressly denied, in which ■cases it has been held that the failure of consent by the requisite number of abutting property-owners manifested by failure to protest is jurisdictional and in the nature of a condition precedent' to the exercise of the power by the city to order the improvement. Under our statute, the right of the taxpayers in this case to protest by filing their protest with the city clerk on or before the 3d day of May, 1909, was clearly guaranteed to them. But the fact that the board of aldermen passed the ordinance on that day did not prevent such property-owners from filing their protest against such improvement, and if they bad filed such protest on or before the 3d day of May, any action of the board of aldermen would, under the terms of the statute, unquestionably have become ipso facto null and void. But the statute, not having in terms prohibited the city council from passing the ordinance until after the expiration of the ten days, its premature passage on the third day of May was in the nature of an interlocutory order which became final on the failure of the property-owners to file their protest within the ten days. It was irregular, but not such an irregularity as essentially affected the proceedings, and consequently did not invalidate the same. [28 Cyc. 1007.]

In the case of Kansas Town Co. v. City of Argentine (Kan.), 47 Pac. 542, an ordinance was passed September 19, 1894, and published in the official paper September 20, 1894, providing for the macadamizing of Strong avenue from the east side of Fourth street to the west side of Eleventh street, said ordinance purporting to be enacted pursuant to the previous resolution. It was contended by the plaintiff in error that all proceedings bad under the ordinance were invalid for the reason that it was enacted by the city council on the twentieth day after the last publication of the resolution, when the statute expressly provided that the resident owners of property liable for taxation for the proposed improvements should have twenty days from the last publication within which to protest against the proposed improvements, and that the council bad no power to take any steps towards the doing of the work until the expiration of such time. The court say: “Even conceding that the action of the council was premature in this respect, we do not think it can have the effect claimed for it. The ordinance had no validity or legal force until after its publication in the official paper; and, as no protests of property-owners were presented, it is not unreasonable to say that the work was not authorized to be done by the ordinance until after the time within which protests could be filed. But, if this is not the case, still we think the premature passage of the ordinance would be a mere irrgularity in one of the steps required for the doing of the work, which is not a sufficient ground on which to base an objection to an assessment levied after the work has been completed. This step is not a jurisdictional one, and mere irregularities in the manner in which authorized work is done do not have the effect contended for.” See also Brown v. Central Bermudez Co. (Ind.), 69 N. E. 150.

While in the cases cited, the question was raised after the improvement was made, such fact would in no wise change the rule of interpretation of the law. When the attack upon the proceedings of a municipality is made and it is thereby sought to declare the proceedings of the board of aldermen intrusted with the welfare of the city null and void, it should appear upon the face of the proceedings as such a tribunal that a statutory requirement, plainly jurisdictional, has not been complied with; and irregularities would not constitute a basis for such collateral attack.

IV. The'evidence in -this' case is uncontradicted that along the sides of Pine street, shade and ornamental trees have been planted which the owners have carefully cultivated and cared for many years until the same have grown to have trunks eighteen inches in diameter, with beautiful spreading crowns, and that they afford shade and comfort to their owners and to pedestrians traveling along such street; that they add materially to the beauty of the street and are conducive to the health and well-being of its citizens. It appears that the proposed improvement can be made in such a way as to afford ample space and room for all traffic and travel on said street without the necessity of injuring or destroying such trees. The petition alleged that the board of aldermen, by the proposed improvement, were about to remove the trees for the purpose of paving the streét and that such an act would be an invasion of private rights and an arbitrary exercise of the power of the board of aldermen.

Among the many rights of the abutting property-owner, it is his generally recognized right to plant and grow shade and ornamental trees along the sidewalk in front of his property, and this is a most valuable right. As a rule, shade and ornamental trees are very desirable in front of residence property; so much so, that most of the cities of the State encourage the property-owners to plant and grow such trees in front of their property and pass laws protecting the trees from injury and prescribe penalties to those who injure them. [Cartwright v. Telephone Co., 205 Mo. loc. cit. 133, 103 S. W. 982.]

In this case, the enforcement of the paving ordinance so as to injure and destroy these shade and ornamental trees would result in an arbitrary and unnecessary destruction of private property. Courts will declare an ordinance unreasonable upon a showing of facts which makes it unreasonable. [St. Louis v. Theatre Co., 202 Mo. 690, 100 S. W. 627; City of Carthage v. Block, 139 Mo. App. 386, 123 S. W. 483; City of Salem ex rel. v. Young, 125 S. W. 857.]

The judgment in this case is accordingly reversed and the cause remanded with directions to the circuit court that the appellants and the city of 'Rolla in the construction of the brick paving of Pine street in said City from the center of Sixth street to the center of Tenth street, under ordinance No. 112, approved May 3, 1909, be restrained and enjoined from injuring or destroying the shade and ornamental trees along such street within the area gf the proposed improvement, and that in all other' respects, the injunction be dissolved, and that the respondents have and recover their costs in this case.

All concur.