City of Independence for Use and Benefit of Guinn v. Hare, s. 23492 and 23496

• Decision Date: 04 June 1962
• Docket Number: Nos. 23492 and 23496,s. 23492 and 23496
• Citation: 359 S.W.2d 33
• Parties: CITY OF INDEPENDENCE, Missouri, for the Use and Benefit of Charles GUINN, Plaintiff-Respondent-Appellant, v. George M. HARE and Mary Pearl Hare, Defendants-Appellants-Respondents, City of Independence, Missouri, Intervenor-Appellant.
• Court: Missouri Court of Appeals

Page 33

359 S.W.2d 33

CITY OF INDEPENDENCE, Missouri, for the Use and Benefit of Charles GUINN, Plaintiff-Respondent-Appellant, v. George M. HARE and Mary Pearl Hare Defendants-Appellants-Respondents, City of Independence, Missouri, Intervenor-Appellant.

Nos. 23492 and 23496.

Kansas City Court of Appeals, Missouri.

June 4, 1962.

Arthur B. Taylor and Kenneth H. Taylor, Independence, Walter A. Raymond and Raymond, West & Cochrane, Kansas City, for plaintiff and intervenor and John F. Thice, Independence, for intervenor, City of Independence.

James L. Gillham, Independence, for defendants-appellants-respondents Hare.

MAUGHMER, Commissioner.

This is an action to enforce the lien of a Special Sewer Tax Bill issued by the City of Independence, Missouri. After trial the court directed a verdict and entered judgment for claimant in the amount of $2,642.09 principal, plus accrued interest to April 11, 1961, in the sum of $1,170.71 or a total of $3,812.80.

In 1955, the City of Independence was a city of the third class. On August 29, 1955, it issued Special Tax Bill No. 41 for Sewer District No. 186, in the amount of $2,642.09 to Quickway Excavating Company, which company assigned to Charles Guinn, plaintiff in the present suit. Defendants George M. and Mary Pearl Hare by their answer admitted ownership of the real estate, but asserted Tax Bill No. 41 was void as to 'procedure, form, content and effect' and was void for the further reason that it was issued pursuant to Ordinance No. 14118, which was invalid because not enacted according to law and in the manner and form prescribed by statute.

Some objections were registered by defendants to the introduction into evidence of Ordinance No. 14059, which created Sewer District No. 186. These objections appear mainly addressed to the real estate descriptions which were by metes and bounds and which defendants contend were not entirely accurate. However, the judgment lien is against the real estate so described and defendants' complaints are not meritorious in this respect.

The real issue on appeal concerns the validity of Ordinance No. 14118, which was the ordinance levying and assessing the cost of constructing sewers in District No. 186 and under which Special Tax Bill No. 41 was issued. The ordinance itself recites its passage on August 29, 1955. The journal of the August 29 meeting shows that all twelve members of the council were present but is silent as to the votes on Ordinance No. 14118. The ayes and nays were not recorded.

The judgment here was entered on April 12, 1961. On April 18, defendants filed their motion to set aside or in the alternative to grant them a new trial. On May 17, 1961, and while defendants' motion was pending and undisposed of, the City of Independence presented to the court its motion for leave to file an intervening petition. In support, the City suggested that the attack on the ordinance raised a matter of great public interest and that the City's ability to sell future tax bills might be adversely affected. The City alleged further that in truth and in fact Ordinance No. 14118 was passed by a majority of aye votes and that the ayes and nays were actually taken. This application included affidavits signed by all twelve members of the council, the then mayor and city engineer, declaring that the ayes and nays were taken and that all twelve members voted aye. The City's motion then prayed that the court reopen the case, allow the City of Independence to intervene and permit amendment of the record nunc pro tunc to show the taking and recording of the ayes and nays. The court denied the City's motion to intervene, overruled defendants' motion to set aside the judgment or grant a new trial and all three participants have appealed. The defendants Mr. and Mrs. Hare appeal from the judgment entered against them, while the plaintiff Guinn and the City, expectant intervenor, appeal from the denial of the motion to intervene.

Three questions are presented which must be answered in order to determine this appeal. First, is an ordinance under which a special tax bill is issued valid where the record does not show the taking or recording of the ayes and nays? Second, may the minutes of the journal be corrected to show such vote if in truth and in fact such vote was actually taken, and third, should the City of Independence under the facts of this case have been permitted to intervene for the avowed purpose of so correcting the record? The supporters of the judgment entered claim that the attack on the ordinance and ipso facto, upon the judgment itself, is a collateral attack and cannot be sustained regardless of the defects as to the ordinance. Generally presumptions are indulged in favor of the validity of special tax bills and that city officials do their duty. However, we reject plaintiff's theory that these assumptions, which have received some lip service from the courts will render defective ordinances impregnable to assault or cure deficiencies in legislative enactments.

As Independence, in 1955, was a city of the third class, its powers were governed by what is now Chapter 77, RSMo 1959, V.A.M.S. Section 77.080 thereof provides in part as follows:

'The style of the ordinances of the city shall be: 'Be it ordained by the council of the city of _____ as follows:' No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the council shall vote therefor, and the ayes and nays shall be entered on the journal; and all bills shall be read three times before their passage'.

The provision of the statute that 'no bill shall become an ordinance unless on its final passage a majority of the members elected to the council shall vote therefor and the ayes and nays shall be entered on the journal' has long been held to be a mandatory provision and failure to record the ayes and nays invalidates or makes incomplete the enactment of such ordinance. In City of New Franklin ex rel. etc. v. Edwards, Mo.App., 23 S.W.2d 235, the journal recited the following vote: 'Wilson, Yes; Bryan, Yes; Solomon, Yes'. The court commented there was no affirmative showing as to the number of councilmen, ruled the ayes and nays were not recorded, and struck down the ordinance as invalid. In Village of Beverly Hills v. Schulter, 344 Mo. 1098, 130 S.W.2d 532, 537, the journal entry read: 'Each of the above 13 bills * * * were presented for passage, voted upon, and passed unanimously by all of the trustees present'. The court said: 'In view of our mandatory statute that the yeas and nays shall be entered on the journal, we cannot hold that the journal entry here in question is sufficient'.

In Krug v. Village of Mary Ridge, Mo.App., 271 S.W.2d 867, the court declared that the statute requiring the ayes and nays to be entered on the journal is to afford and enforce publicity as to the votes of the individual members of the board of a municipal corporation upon matters coming before them for their official action and to fix upon each member the precise share of responsibility which he ought to bear.

Steiger et al. v. City of Ste. Genevieve, 235 Mo.App. 579, 141 S.W.2d 233, holds squarely that the statutory requirement that ayes and nays of aldermen voting on ordinances be entered on the journal is mandatory,...