Cox v. William Mignery & Company

Decision Date04 November 1907
PartiesLEWIS H. COX, Appellant, v. WILLIAM MIGNERY & COMPANY, Respondents
CourtKansas Court of Appeals

Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

Spencer & Landis for appellant.

(1) There can be no estoppel as against the property-owner for sitting by and seeing a street improved under void ordinances, when he makes no special complaint to the contractor. Verdin v. St. Louis, 131 Mo. 98; Perkinson v. Hoolan, 182 Mo. 189. (2) An abstract of the council proceedings is required to be published in the official paper and the clerk of the council is, by charter provision, required to keep a record of the proceedings of the council in a journal kept for that purpose; and the charter also provides that the yeas and nays shall be recorded on the final passage of every ordinance, and that unless they are so entered upon the journal and recorded, the ordinance shall be absolutely void and to no effect. Session Acts, 1903, pages 69 and 71. (3) The suit now pending is a collateral attack upon the passage of the ordinance and not a direct proceeding to annul the ordinance. The authorities in this State distinguish between a direct and collateral attack as follows: "A direct attack is a suit brought directly between the parties originally acting as parties to a judgment, contract, or proceeding." Neither the city clerk, members of the city council, nor the city of St Joseph, being parties of this proceeding, the action must be indirect, or collateral attack. Truesdail v McCormick, 126 Mo. 39. After the record is approved by the council it cannot thereafter be impeached collaterally. Mayor v. Davis, 13 So. 331. (4) Pencil writing is not sufficient to make a public record. Stone v Sprague, 24 N.H. 309; Franklin v. Tilman, 62 Tex. 101; 21 Am. and Eng. Ency. Law (2 Ed.), p. 9; Halleck v. Boydston, 117 Mass. 469; Mayor v. Davis, 13 So. 331. (5) The court can inquire into the votes of the council as shown by the journal required by law to be kept. State v. McBride, 4 Mo. 303; Railway v. Governor, 23 Mo. 367; Bowen v. Railway, 118 Mo. 547. (6) Journal is the only competent evidence to prove the yea and nay vote on the adoption of an ordinance. Parol testimony may be introduced to sustain the record, but not to impeach it. Mayor v. Davis, 13 So. 331; 26 Am. and Eng. Ency. Law (2 Ed.), p. 553, and cases cited in footnotes six and seven; State v. Price, 4 Ohio Cir.Dec. 296; Burke v. Cincinnati, 10 Oh. 542. (7) Interlineations made in the public records are presumed to be made with authority and to be correct. 2 Cyc. p. 242. (8) Records required by law to be kept by clerks of legislative bodies may be altered or changed before they are read and approved, but after they have been read by the clerk and approved by the legislative body as amended, they cannot, thereafter, either be altered or impeached except by a direct proceeding. Minutes of a meeting are not final until they have been read and approved. Anniston v. Davis, 13 So. 331.

Fulkerson, Graham & Smith and Charles F. Strop for respondents.

(1) Under the facts certainly appellant is estopped from asserting that the taxbills are invalid. Elliott on Roads and Streets (2 Ed.), sec. 554, pp. 572, 573, 574, sec. 690, p. 614; Jackson v. Smith (Ind.), 22 N.E. 432; Ross v. Stackhouse (Ind.), 16 N.E. 503; 2 Smith on Mun. Corp., sec. 1263, p. 1288; Richie v. South Topeka, 38 Kas. 368, 16 P. 332; Murphy v. Insurance Co., 61 Mo.App. 323; Hampton v. Mayor, 36 N. J. L. 159; Youngster v. Mayor, 40 N. J. L. 244; City v. Gilbert, 31 Iowa 356; Bidwell v. Pittsburg, 85 Pa. St. 412; State v. Railway, 74 Mo. 163; Galbreath v. Newton, 30 Mo.App. 380, l. c. 398; Herman on Estoppel and Res Judicata (2 Ed.), sec. 1221, sec. 943, p. 1069; Barker v. Omaha (Neb.), 20 N.W. 382; Tone v. Columbus (Ohio), 48 Am. Rep. 446, 39 Ohio St. 281; Nowlen v. Benton Harbor (Mich.), 96 N.W. 450; State ex rel. v. Mayor (Wis.), 77 N.W. 169; Treat v. Chicago (Ill.), 130 F. 444; Farr v. Detroit (Mich.), 99 N.W. 20; Towne v. City Council (Mass.), 43 N.E. 1033; O'Dea v. Mitchell (Cal.), 77 P. 1021; Wilson v. Salem (Ore.), 34 P. 12; Clinton v. Portland (Ore.), 38 P. 410; Ritchie v. South Topeka (Kan.), 16 P. 334; Shambaugh v. Current (Iowa), 82 N.W. 497; Heman v. Ring, 85 Mo.App. 235, 236; Huling v. Stone Co., 87 Mo.App. 361; Jaisks v. Merrill, (Mo.), 98 S.W. 758; Johnson v. Duer, 115 Mo. 378. (2) But appellant insists that the doctrine of estoppel does not apply, notwithstanding his complete knowledge of the facts, because he did not know the law, his ignorance of the law will not excuse him. Herman on Estoppel and Res Judicata, sec. 943 p. 1069; Elliott on Roads and Streets (2 Ed.), sec. 590, p. 614. (3) Every presumption that can fairly be raised in favor of the validity of the taxbills after the work has been completed, should be invoked. Johnson v. Duer, 115 Mo. 366. (4) Jurisdiction to pave its streets exist by virtue of the charter of St. Joseph, that is jurisdiction of the subject matter, and when such exists, parties may waive even constitutional requirements. Elliott on Roads and Streets, sec. 591, p. 616. (5) The law presumes that the ordinance was properly passed and the taxbills valid, the burden is on appellant to show the taxbills void. State v. Ray, 109 Mo. 594; State ex rel. v. Mason, 155 Mo. 496; Bank v. Woester, 147 Mo. 467. (6) The ordinance received six votes and the recording of the yeas and nays on the ordinance, if in fact the recording is required by charter, was at most only directory. St. Louis v. Foster, 52 Mo. 513. One part of the record may be aided or impeached by another part. Jester v. Spurgeon, 27 Mo.App. 479. (7) It has been held that where the ordinance recites that it has passed by a two-thirds vote, then such finding is conclusive. In this case the certificate of the president of the council recites that the ordinance was "passed." Thus certifying that it received the necessary two-thirds vote, and such recital is conclusive, and the question whether the yeas and nays were taken and recorded could be raised if at all only by a direct attack and appellant insists that this is a collateral attack. Railway v. Crown Point (Ind.), 50 N.E. 747; Elliott on Roads and Streets, sec. 594, p. 621; Brewster v. Davenport, 1 N.W. 738. (8) The ordinance under the seal of the city, certified as "passed" by the president of the council and city clerk and approved by the mayor, cannot be impeached, by showing that statutory requirements are not complied with. Railway v. Governor, 23 Mo. 353; Ex parte Bedall, 20 Mo.App. 129; St. Louis v. Gleason, 93 Mo. 37; Ball v. Fagg, 67 Mo. 484; Field v. Clark, 143 U.S. 672, 12 S.Ct. 495; McQuillin, Mun. Ord., sec. 396, p. 600; Striker v. Kelley (7 Hill N. Y.), 2 Denio 323; Eichenlaub v. St. Joseph, 113 Mo. 407; Bowen v. Railway, 118 Mo. 547; R. S. 1899, sec. 5221. (9) In the absence of contrary evidence it will be presumed that the requisite number of councilmen voted for the bill, and this presumption is sustained by the evidence. State ex rel. v. St. Louis, 174 Mo. 136; State ex rel. v. St. Louis, 169 Mo. 37. (10) If any record is competent and especially any record other than the "minute book" kept by the City Clerk Beach, as the proceedings were had, it is the typewritten record at page 508 of Book 18, as prepared by Deputy McDonald over the city clerk's signature, before the unauthorized change by witness Campbell, and not the record entry as changed, erased and interlined, and the approval of the record at a subsequent meeting as printed, the testimony showing that the record was in fact not read over, and also showing that the councilmen seldom read the newspaper report of the proceedings, certainly could not validate these unauthorized changes, the approval added no such solemnity as to preclude correction by the chancellor. 2 Am. & Eng. Ency. Law (2 Ed.), 275, 279; Cox v. Palmer, 3 F. 16; Dyer v. Brogan (Calif.), 11 P. 589; Yesler v. Seattle (Wash.), 25 P. 1014; Dillon on Mun. Corp. (4 Ed.), secs. 297-300; Clark v. Sires (Mo.), 92 S.W. 224. (11) The change by witness Campbell being unauthorized, could not affect the record as written up by Deputy McDonald, but that record should stand, and the interlineations and changes be disregarded. Parol evidence was competent to show which was the record. Yester v. Seattle, 25 P. 1014; Dyer v. Brogan, supra; 24 Am. & Eng. Ency. 198; Palmer v. Emery, 91 Ill. 207; State ex rel. v. Alexander, 77 N.W. 841; State v. Mason, 9 So. 782; 2 Smith Mod. Mun. Corp. sec. 1370, p. 1426; White v. State, 69 Ind. 273. (12) Where the record shows the ordinance "passed," the law presumes the required majority, and testimony of the city officials is competent to sustain this presumption. Brewster v. Davenport (Iowa), 1 N.W. 738. (13) The interlined, changed and erased record was not competent, the chancellor was warranted in not relying upon it. Cox v. Palmer supra.

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...

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