Webb v. Strobach

• Decision Date: 04 April 1910
• Parties: WEBB et al. v. STROBACH, Mayor, et al.
• Court: Missouri Court of Appeals

127 S.W. 680

143 Mo. App. 459

WEBB et al. v. STROBACH, Mayor, et al.

Springfield Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 3, 1910.

1. MUNICIPAL CORPORATIONS (§ 294) — STREET IMPROVEMENTS — RESOLUTION OF NECESSITY — PUBLICATION — STATUTES — "CAUSE."

The word "cause," in Rev. St. 1899, § 5989 (Ann. St. 1906, p. 3024), providing that, when a city of the fourth class desires to pave its streets, the board of aldermen shall by resolution declare such improvement to be necessary and "cause" the resolution to be published in some newspaper, etc., is used in its common 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.

2. MUNICIPAL CORPORATIONS (§ 100) — RECORDS — NUNC PRO TUNC AMENDMENTS.

The right of the board of aldermen of a city to amend its minutes is very broad, and a nunc pro tunc amendment may be made on the minutes at a succeeding meeting.

3. MUNICIPAL CORPORATIONS (§ 100) — RECORDS — NUNC PRO TUNC AMENDMENTS.

The clerk of a city in charge of the municipal records may amend the records so as to make them speak the truth, where through inadvertence or neglect they are incomplete.

4. MUNICIPAL CORPORATIONS (§ 293) — RECORDS — NUNC PRO TUNC AMENDMENTS.

The board of aldermen of a city of the fourth class, having adopted a resolution declaring the necessity to improve a street, may at a subsequent meeting amend the same nunc pro tunc so as to show the exact proceedings had at the adoption of the resolution, by showing by interlineations in the record, the provision for the publication of the resolution in a newspaper, and directing the clerk to have the same published, and thus show that a publication in accordance with Rev. St. 1899, § 5989, providing for the publication of the resolution in a newspaper published in the city, was provided for.

5. MUNICIPAL CORPORATIONS (§ 294) — PUBLIC STREET IMPROVEMENTS — PUBLICATION OF RESOLUTION — SUFFICIENCY.

Under Rev. St. 1899, § 5989 (Ann. St. 1906, p. 3024), providing for the publication in a newspaper for two consecutive weeks of a resolution declaring that the improvement of a street is necessary, a publication of a resolution for a street improvement for two consecutive weeks is sufficient, and it is 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, nor that the resolution should have been read by any person or number of persons, and the publication of a correct copy of a resolution without caption other than the original resolution, for two consecutive weeks, is sufficient, in the absence of any fraudulent collusion between the foreman of the newspaper and the board of aldermen, to publish it in an obscure part of the paper, so that property owners should have no notice of the proposed improvement.

6. MUNICIPAL CORPORATIONS (§ 294) — TIME (§ 10) — STREET IMPROVEMENTS — ORDINANCE FOR IMPROVEMENT — ADOPTION — IRREGULARITIES.

Under Rev. St. 1899, § 4160 (Ann. St. 1906, p. 2252), providing that 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 be Sunday it shall be excluded, and section 5989 (page 3024), providing for the adoption of an ordinance for a street improvement where a majority of the owners of the property liable to taxation therefor failed to file their protest within 10 days from the date of the last insertion of the resolution declaring the improvement necessary, an ordinance for the improvement, adopted May 3, 1909, while the last insertion of the publication of the resolution for the improvement was on April 22d preceding, so that the tenth day for the filing of protests was on Sunday, May 2d, was premature because the tenth day within which the protest of the owners might have been filed expired on May 3d; but the irregularity did not invalidate the proceedings.

7. MUNICIPAL CORPORATIONS (§ 678) — STREETS — RIGHTS OF ABUTTING PROPERTY OWNERS.

The right of an owner of property abutting on a street to plant shade and ornamental trees along his property is a valuable one, and a paving ordinance, which unnecessarily provides for the destruction of shade and ornamental trees, is to that extent unreasonable, and the court will restrain the municipality from injuring such trees.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by F. W. Webb and others against Charles T. Strobach, as Mayor of the City of Rolla, and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

This was an action by the abutting landowners on Pine street, in the city of Rolla, Mo., 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.

J. J. Crites and Lorts & Breuer, for appellants. C. C. Bland and Watson & Holmes, for respondents.

NIXON, P. J.

On the 3d day of May, 1909, the defendant Charles T. Strobach, as mayor, and the other defendants, as members of the board of aldermen, of the city of Rolla, a city of the fourth class, passed an ordinance known as "ordinance No. 112," 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 ordered by the board of aldermen of the city of Rolla, 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 8th, 1909, and published April 15th and 22nd, 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 tax bill will be levied and special tax bills will be issued against the abutting property in payment of said improvement in proportion to the front foot thereof. And this board of aldermen 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.

"Sec. 2. This ordinance shall be enforced from and after its approval by the mayor.

"This ordinance was passed by the board of aldermen at a meeting held May 3rd, 1909.

                  "Approved May 3rd, 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.

1. 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. 27th, 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 tax bills 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, Rev. St. 1899 [Ann. St. 1901, p. 3024]) 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...