City of Sedalia ex rel. Gilsonite Construction Company v. Scott
| Citation | 78 S.W. 276,104 Mo.App. 595 |
| Parties | THE CITY OF SEDALIA ex rel. GILSONITE CONSTRUCTION COMPANY, Plaintiff in Error, v. JENNIE R. SCOTT, Defendant in Error |
| Decision Date | 04 January 1904 |
| Court | Court of Appeals of Kansas |
Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.
Judgment affirmed.
Geo. P B. Jackson and Montgomery & Montgomery for plaintiff in error.
(1) A paper produced from the files of the city clerk, and purporting to be a remonstrance against a street improvement and purporting to be signed by forty-three persons, does not prove itself, and is not competent evidence that the persons whose names appear thereon ever signed the paper or authorized any other person to sign for them; and is not competent evidence that such persons own property abutting upon the street improved and liable to taxation therefor; and is not competent evidence that such persons reside in the city; and is not evidence that such persons constitute a majority of the resident owners of property abutting on the street improved and liable to taxation therefor. (2) The record of the council is the journal of the council proceedings which the clerk is required by law to keep. This journal should contain a minute of every act of the council. R. S. 1899, secs. 5772 and 5774. (3) In so far as it does so it is competent proof and the only competent proof of what the council did. It will be conclusively presumed that the council did just what its journal says it did, no more and no less. (4) The council had power to adopt its own rules of parliamentary procedure. R. S. 1899, sec. 5772. Such power exists independently of the statute and inheres in every deliberative body. (5) Pursuant to such power, it adopted Cushing's Manual as its parliamentary guide. Therefore all parliamentary terms must be construed to mean what Cushing's Manual defines them to mean. (6) When any proposition is made to a deliberative assembly, it is called a motion: when it is stated or propounded to the assembly for their acceptance or rejection, it is denominated a question: and when adopted, it becomes an order, resolution, or vote of the assembly. (7) The first question upon a report, is upon receiving it. The adoption of a resolution to receive the report, means that the council (1) consents to hear the report read (2) discharges the committee, and (3) places the report upon the table until it sees fit to take it up for further consideration, if ever. The council may never consider the report again. It may wholly ignore it. Cushing's Manual, secs. 287, 290. (8) The final question on a report, is upon its adoption or acceptance. When accepted or adopted the statement, reasoning, opinion, resolution or other act becomes the statement, reasoning, opinion, resolution or other act of the assembly as the case may be. This is done by resolution. Cushing's Manual, sec. 295. (9) The word "find," as applied to the council's action, means that the council is satisfied and determines from the evidence adduced, and declares that a certain fact under investigation exists. State v. Beloit, 74 Wis. 267. (10) An administrator as such has no right to sign a remonstrance for his decedent. John N. Dalby, administrator of the estate of Mary A. Hogue, should not have been counted. Mulligan v. Smith, 59 Cal. l. c. 225; Rector v. Board, 50 Ark. 116; Holland v. Baltimore, 11 Md. 186; Batty v. Hastings, 63 Neb. 26. (11) A conveyance to S. Wright & Son passes the legal title to S. Wright. Hence S. Wright & Son should not have been counted as two remonstrants. Arthur v. Weston, 22 Mo. 378. (12) Thus the record of the council shows that the committee's finding, that a majority did not remonstrate, was correct.
Barnett & Barnett for defendant in error.
(1) This court has already settled the question that the ordinance involved in this case and the taxbills issued thereunder are absolutely void. Every contention made by the plaintiff in error in this case has been decided adversely to it. Knopfi v. Gilsonite Roofing & Paving Co., 92 Mo.App. 279. (2) The act of the council referring the remonstrance to a committee for investigation, the report of the committee received and filed to the effect that there were sixty-one resident property owners and thirty-two had signed the remonstrance and that the committee found that the remonstrance had been reduced below a majority by withdrawals, and, further, the fact that thereupon at the same meeting, without further investigation, the ordinance was introduced and put upon its passage constitutes an adoption by the council of said report, and a finding that thirty-two of the sixty-one had signed the remonstrance and constitutes an adoption by said council of the views expressed by the city counselor to the effect that the council had acquired jurisdiction by reason of these withdrawals. Knopfi v. Gilsonite Roofing & Paving Co., supra, local citation, pp. 291 to 294. (3) It being ascertained that there were but sixty-one resident property owners on the street and that the remonstrance contained the names of thirty-two persons competent to remonstrate, of course the remonstrance contained a majority, even rejecting the name of Fannie Hartshorn. (4) While the defendant in this case could attack and show that notwithstanding its recital the city in fact did not have jurisdiction to proceed, yet neither the city nor the contractor holding under it can assail the record. The record itself must disclose jurisdiction in the council and authority to make the improvement. Therefore the court did right in excluding the offer to show that certain parties signing the remonstrance were not competent to do so. Knopfi v. Gilsonite Roofing & Paving Co., supra, pp. 291 to 294. (5) The council could not acquire jurisdiction by the withdrawal of names from the remonstrance filed, as the filing of the remonstrance with a majority of the property owners signed thereto deprived the council of jurisdiction to proceed without regard to the subsequent action of the remonstrators. This question is settled in the Knopfi case.
This is an action based on a special taxbill for street paving in the city of Sedalia. The bill is one of a number of others issued against the property of different property owners abutting on the improvement. One of these property owners brought a suit in equity to declare void the bill issued against his property. In that case, on appeal to this court, it was decided that the bill was invalid. Knopfi v. Roofing & Paving Co., 92 Mo.App. 279. Suit in this and sixteen other cases was brought at law against other property owners by the holder of the taxbills for the same improvement. The trial court found that a majority of the property owners on the street to be improved filed with the city clerk their remonstrance against the improvement within ten days of the publication of the resolution proposing the work and rendered judgment for defendant. The plaintiff brought each case here by writ of error. They are all submitted on the briefs in this one and are to abide the result reached in this one.
1. The record now before us is in most respects identical with that in the Knopfi case and the opinion in that case has not been questioned by counsel, though other and additional points have been set out and urged to sustain the validity of the tax.
As stated in the Knopfi case, it is provided by the laws of 1893, section 110, page 92, that when the council shall deem it necessary to pave or otherwise improve a street for which a special taxbill is to be issued, ". . . they 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; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvements to be made, and to contract therefor, and to levy the tax as herein provided. . . ."
A resolution was passed and published looking to the paving in question, and within ten days a majority of the resident owners of party liable to be taxed filed with the city clerk their remonstrance against the improvement. Afterwards, but within ten days of the publication, a sufficient number of those signing and filing the remonstrance withdrew therefrom to reduce the number remaining below a majority. We decided in that case that when a majority of property owners signed a remonstrance and filed it with the city clerk it ousted the council of jurisdiction, and that after signing and filing with the clerk, a portion of the signers could not withdraw therefrom so as to reconfer jurisdiction. And that if it was still desired to make the improvement a new proceeding should be begun.
2. We regard the papers known as the remonstrance and the written withdrawals therefrom and the report of the committee to which these were referred as parts of the record of the city council. From these it appears that there were sixty-one property owners and that forty-three signed the remonstrance. That of the latter, one signed and filed a withdrawal from the remonstrance several days before it was filed with the city clerk, and six others (making seven in all) signed and filed their withdrawal the next day after it was filed with the clerk. The record, however, further shows that the committee must have determined that only five of the seven were competent to be counted as withdrawing, for only five were reported. This was probably from the fact that it determined that two were not proper remonstrants and not being persons who could remonstrate in the first instance, of...
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