City of Brunswick v. Benecke

Citation289 Mo. 307,233 S.W. 169
Decision Date23 June 1921
Docket NumberNo. 22094.,22094.
PartiesCITY OF BRUNSWICK ex. rel. BARKWELL et al. v. BENECKE
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by the City of Brunswick, on the relation of George W. Barkwell and others, against Otto K. Benecke. Judgment for plaintiffs, and defendant appealed to the Court of Appeals, which transferred the case to the Supreme Court. Reversed.

F. C. Sasse, of Brunswick, and 0. P. Ray, of Keytesville, for appellant.

E. C. Anderson and Russell E. Holloway, both of Columbia, and Willard P. Cave, of Moberly, for respondents.

HIGBEE, P. J.

This case was transferred to this court by the Kansas City Court of Appeals, for the reason that one of the judges believed the decision of that court was in conflict with the decision of the Springfield Court of Appeals in Webb v. Strobach, 143 Mo. App. 459, 470, 127 S. W. 680. Under the Constitution it is our duty to hear and determine the cause as in case of jurisdiction obtained by ordinary appellate process; in other words, the question of conflict drops out of the case. Section 6 of Amendment of 1884 to the Constitution; Epstein v. Railroad, 250 Mo. 1, 156 S. W. 699, 48 L. R. A. (N. S.) 394, Ann. Cas. 1915A, 423.

The action is to enforce the lien of a special tax bill issued by the city of Brunswick, a city of the fourth class, for grading and paving a part of a public street, against the property of the appellant abutting on said street and liable to taxation therefor. On May 3, 1915, the board of aldermen of the city adopted a resolution under the provisions of section 9411, R. S. 1909, declaring it necessary to bring to the established grade a designated portion of Broadway street by fills or excavations, as may be necessary, and to pave the same with vertical fiber paving blocks and asphalt filler, all upon a concrete base, 4 inches thick, according to specifications therefor filed by the proper officer with the city clerk of said city. It directed that the resolution be published for two consecutive insertions in the Brunswicker, a weekly newspaper published in said city. The resolution was published on May 7 and 14 in said newspaper.

On May 25, an ordinance was adopted requiring the designated portion of said street to be brought to the established grade and paved with 3-inch vertical vitrified paving blocks upon a 4-inch Portland cement concrete base, with an asphalt filler, and a 1½-inch sand cushion, and said improvement shall be commenced within one week from the delivery by the board of aldermen to the contractor of written notice to commence, and shall be fully completed within 30 days after the date of such notice, provided that for good cause shown the board of said city may extend the time for completing said improvement upon the application of the contractor made as soon as the necessity therefor appears, and before the expiration of the time herein fixed for the completion of the same.

The relator, Barkwell, was the successful bidder, and on June 22 entered into a written contract with the city to do the work. It provided that no additional time for the completion of the work should be allowed except for reasons that should appear sufficient to the board; working days lost on account of injunction, court proceedings, bad weather, strikes, etc., shall not be held to be working days, and shall be added to the number of days specified within which the work shall be completed. In consideration of the completion of the contract in accordance with the specifications, the contractor shall receive $1.74 per square yard.

No notice was given the contractor to begin the work, but he did so on June 28, and completed it November 10. No extension of time was asked or given. The tax bill was issued November 19. The cause was tried to the court, and judgment rendered for the relator, Barkwell, from which the defendant appealed to the Kansas City Court of Appeals,

1. Section 9411, R. S. 1909, authorizing the improvement of streets in cities of the fourth class, reads:

"When the board of aldermen shall deem it necessary to pave * * * any street * * * 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; 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 resolution, file with the city clerk their protest against such improvements, then the board of aldermen shall have power to cause such improvements to be made, and contract therefor."

The appellant contends that three insertions are necessary to constitute a publication of the resolution for 2 consecutive weeks within the meaning of this section of the statute, and that resident owners of property liable to taxation for the contemplated improvements were entitled to file their protest within 10 days from the date of the last insertion, which would have been June 1. It is clear the publication required is for full 2 weeks or 14 days.

In Haywood v. Russell, 44 Mo. 252, 254, Judge Bliss said:

"The objection to the time of publication is not well taken. The statute requires that notice should be published for four weeks, and that the last insertion should be at least four weeks before the commencement of the term. If the first publication is for one week, surely the other three are for one week each, and it is only necessary that `the last insertion'—not the last week—should be four weeks before the term. The notice objected to was published in a weekly paper, in four consecutive numbers, which makes four weeks. The objection assumes that the commencement of the publication should be eight weeks before the term, which is not required, nor is it required that the four weeks should end four weeks before the term. It is sufficient if it be for four weeks, and if the last insertion, which is the commencement of the fourth week, be four weeks before the commencement of the term." Wagner and Currier, JJ., concurred.

In Cruzen v. Stephens, 123 Mo. 337, 27 S. W. 557, 45 Am. St. Rep. 549, the defendant contended that a judgment for delinquent taxes was void because the notice of publication to the defendant was not published for 4 consecutive weeks. It appeared in the issues of the newspaper designated on March 7, 14, 21, and 28, 1889. In the opinion of Judge Barclay, concurred in by all the members of Division 1, it is said:

"Defendants argue that publication four times, at these intervals, is not publication for `four weeks', and cite the argument of the Court of Appeals in State ex rel. Tucker (1888) 32 Mo. App. 620, claiming that the latter demonstrates that the ruling on this subject in Haywood v. Russell (1809) 44 Mo. 252 (where such a publication was held good), is unsound, and should not be followed.

"Whatever we might think of the ruling in the forty-fourth report as an original proposition it has been acquiesced in so fully, and been treated as a settled point of practice in making publications in all sorts of proceedings, for so many years, that we decline to re-examine it. We consider that the rule it declares has become a rule of property, on the' faith of which great numbers of titles, founded on judicial sales, depend."

Ratliff v. Magee, 165 Mo. 461, 65 S. W. 713, is in point. Syllabus 1 reads:

"The statute required that the notice for the final settlement of an estate should be `published for 4 weeks' prior to the term. Held, that this statute required a notice to be published for 4 weeks or 28 days prior to the beginning of the term, but did not require that 4 weeks should intervene between the date of the last publication of the newspaper and the first day of the term; and hence a notice published in a newspaper on March 24, March 31, April 7, and April 14, prior to the beginning of the term on May 8, met the requirements of the statute and was sufficient."

The opinion was by Judge Valliant, in which all the members of the court en banc concurred on the point in question.

In Fleming v. Tatum, 232 Mo. 678, 135 S. W. 61, the order of publication in a tax suit was published on June 8, 15, 22, and 29. It was held in an opinion by Judge Valliant, to be a publication for 4 successive weeks.

A notice in an action against nonresidents to reform and foreclose a deed of trust was published in a daily newspaper (except Mondays) in the consecutive issues from Sunday, June 29, to July 26. The opinion, by Roy C., in Division 2, in which all concurred, held that the notice was published for 4 consecutive weeks (citing and reviewing Haywood v. Russell and Cruzen v. Stephens, supra; Young v. Downey, 150 Mo. 317, 51 S. W. 751; Howard v. Brown, 197 Mo. 36, 95 S. W. 191). Brown v. Howard, 264 Mo. 501, 175 S. W. 54. It will be seen that, by excluding the date of the first issue, June 29, the publication extended over a period of only 27 days.

In State v. Tucker, 32 Mo. App. 620, the notice for a local option election, held October 11, 1887, was published in a weekly newspaper on September 17, 24, October 1 and 8. From the first insertion to the date of the election was a period of 24 days. Obviously, the notice was not published 4 weeks, as required by statute.

In Young v. Downey, supra, it was held, approving State v. Tucker, that a notice published on September 8, 15, 22, and 29, when the term began October 2, was not a publication for 4 weeks, but only 24 days. Judge Burgess quotes the rule (150 Mo. loc. cit. 327, 51 S. W. 753) from 1 Elliott's General Practice, 450, as follows:

"Where the notice is required to be published once each week for a certain number of weeks, the full number of days necessary to constitute the requisite number of weeks must, according to the weight of authority, elapse between...

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