City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery

• Decision Date: 30 March 1910
• Citation: 127 S.W. 50,227 Mo. 1
• Parties: CITY OF SEDALIA ex rel. GILSONITE CONSTRUCTION COMPANY, Appellant, v. JOHN MONTGOMERY, JR., et al
• Court: Missouri Supreme Court

127 S.W. 50

227 Mo. 1

CITY OF SEDALIA ex rel. GILSONITE CONSTRUCTION COMPANY, Appellant, v. JOHN MONTGOMERY, JR., et al

Supreme Court of Missouri

March 30, 1910

Appeal from Franklin Circuit Court. -- Hon. W. C. Davidson, Judge.

Reversed and remanded (with directions.)

Geo. P B. Jackson for appellant.

(1) The court erred in admitting the papers offered by defendants without proper proof of their execution and of the facts assumed therein. 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. Defendant must either prove the signatures, the ownership and residence of the signers and that they constituted a majority of the whole number of resident owners of property liable to taxation for the improvement, or offer evidence which renders such proof unnecessary, that is, that the record of the council shows that the council found that a majority remonstrated. 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. 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. The law presumes that public officers have discharged their duties properly. Miller v. Dunn, 62 Mo. 216; Baker v Underwood, 63 Mo. 384; Chandler v. Bailey, 89 Mo. 641; State ex rel. v. Williams, 99 Mo. 291; State ex rel. v. Wayne Co., 98 Mo. 362; Owen v. Baker, 101 Mo. 407; Bailey v. Winn, 101 Mo. 649; State ex rel. v. Mastin, 103 Mo. 508; St. Joseph v. Farrell, 106 Mo. 437; Leonard v. Sparks, 117 Mo. 103; Mitchener v. Holmes, 117 Mo. 185; State ex rel. v. Bank, 120 Mo. 161. This rule is applied to legislative acts. Railroad v. Jones, 54 Mo.App. 529; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Field, 119 Mo. 593; St. Louis Co. v. Griswold, 58 Mo. 175. And especially has it been resorted to to sustain an ordinance authorizing an improvement (a sewer) in a suit on a special taxbill. Rutherford v. Hamilton, 97 Mo. 543. (2) The record shows that the committee counted among the thirty-two signers, one person who had filed her letter of withdrawal before the remonstrance was filed. Such person had a right to withdraw and should not have been counted. (3) An administrator as such has no right to sign a remonstrance for his decedent. Mulligan v. Smith, 59 Cal. 225; Rector v. Board, 50 Ark. 116; Holland v. Baltimore, 11 Md. 186; Batty v. Hastings, 63 Neb. 26. A conveyance to S. Wright & Son passes the legal title to S. Wright. Hence S. Wright & Son should not have been counted two remonstrants. Arthur v. Weston, 22 Mo. 378; Reinhard v. Mining Co., 107 Mo. 624. (4) The council did not at all times have the power to improve a street, subject to be divested of that power by remonstrance of a majority of the property-owners. The power was only vested through and by means of the action provided in the statute, and at the time when the statute says, "Then the council shall have power to cause such improvement to be made." R. S. 1899, sec. 5860. (a) The provision of the law for filing remonstrance is a method of giving expression to the will of the majority of the property-owners, and, if they favor the improvement, of conferring power upon the council to proceed with the work, and not a means of "ousting jurisdiction" or destroying an existing power. Armstrong v. Ogden, 12 Utah 476, 168 U.S. 232; City Lt. Imp. Co. v. Babcock, 123 Cal. 205; Clinton v. Portland, 38 P. 407. (b) The property-owners have the right to remonstrate, or withdraw their objections, at any time within the ten days limited by the statute, whether the remonstrance has been filed or not. State v. Gerhardt, 145 Ind. 439; Hays v. Jones, 27 Oh. St. 231; Lanntman v. Maxwell, 154 Ind. 114. (c) And the right of withdrawal exists whether it be from a petition favoring an improvement or a petition (remonstrance) against it. Cases supra and State v. Nemaha Co., 10 Neb. 32; State ex rel. v. Geib, 68 N.W. 1081; Perkins v. Henderson, 68 Miss. 631; Noble v. City, 42 Ind. 130; People v. Sawyer, 52 N.Y. 299; State v. Ellgleston, 34 Kas. 714; Slingerland v. Norton, 59 Minn. 351; La Londe v. Board, 80 Wis. 380; State v. Supervisors, 60 N.W. 266; State v. Comrs., 52 N. W. (Neb.) 842. The same rule has been applied in proceedings for opening and improving roads. Dunham v. Fox, 100 Ia. 131; Black v. Thompson, 112 Ind. 122; Ralston v. Beall, 30 N.E. 1095; Hays v. Jones, 27 O. St. 218. The same rule obtains in applications to the municipal authorities to call an election upon the question of the surrender of the city charter. Dutton v. Hanover, 42 O. St. 215. So, also, in the case of a petition presented for the purpose of securing the attachment of a part of an unorganized county to another jurisdiction. State v. Commissioners, 73 N.W. 631. So, also, in cases of petitions arising under applications for a license to sell intoxicating liquors. Green v. Smith, 111 Ia. 183; Conwell v. Overmeyer, 145 Ind. 698; Perkins v. Henderson, 68 Miss. 631; State v. Gerhardt, 145 Ind. 439.

Barnett & Barnett for respondents.

(1) A majority of the property-owners filed a remonstrance or protest against the proposed improvement within ten days after the publication of the resolution declaring that the council deemed the work necessary. That there was a majority protesting, is shown by the record of the city council. Upon the filing of the protest with forty-three signatures thereto, the council referred the protest, together with certain withdrawals, to a committee of its own body and to the city engineer, together with the city counselor, for investigation as to the sufficiency of the remonstrance. The report of the investigation of that committee discloses the fact that a majority had protested. The committee report that there are sixty-one resident property-owners of whom thirty-two had protested. The council received the report spread it upon its records, and based its action thereon. There is nothing upon the record to disclose that it based its action upon anything else. It adopted a method of ascertaining the sufficiency of the protest, and after having obtained the facts from its committee, the said council proceeds at the same meeting to pass the ordinance. The record clearly shows that the council undertakes to get jurisdiction by assuming the law to be as stated by the city counselor, i. e., that the parties withdrawing their names after the protest had been filed should be counted in favor of the improvement. Upon the filing of such protest the city council ceased to have any jurisdiction to proceed with the work. Laws 1893, p. 92, sec. 110; Forbis v. Bradbury, 58 Mo.App. 506. (a) The proceedings of the council upon their face show that a sufficient protest was filed within the time prescribed by law. By submitting the matter to a committee, especially to the street and alley committee, an appropriate committee to determine the facts, in connection with the city engineer and the city counselor, and by receiving and placing on file the report of such officers, and by introducing the ordinance and putting it upon its passage at the same meeting, the city council have in effect found that the facts that they thus spread upon their records as ascertained by their officers are true and correct, and this record, taken as a whole, constitutes the findings of the city council that a majority of the property-owners had protested within the prescribed ten days and constituted a finding that the council based their right to proceed, not upon the ground that the majority had not protested, but on the sole ground that they had acquired jurisdiction by reason of the withdrawal of names sufficient to reduce the protest to a number of names less than a majority, and such action of the council makes the adjudication of the committee the adjudication of the council. Knopfli v. Gilsonite Co., 92 Mo.App. 290; Wilson v. Simmons, 36 A. 380; Allen v. Portland, 58 P. 513; Sedalia ex rel. v. Scott, 104 Mo.App. 595. (b) In matters of this kind the record of the proceedings must on its face show a compliance with all the conditions made necessary by the statute to a valid exercise of the taxing power. In other words the proceedings must bear upon their face the evidence of the jurisdiction, and the facts which confer jurisdiction must in fact exist. Morris v. Omaha, 93 N. W. (Neb.) 735; John v. Connell, 89 N.W. 806; Miller v. Amsterdam, 149 N.Y. 297; Ogden v. Armstrong, 168 U.S. 224. (2) The court did not err in refusing to permit oral evidence to contradict the record. See authorities above cited. (3) The report of the committee to whom the matter was referred is a part of the record. Waln v. Philadelphia, 99 Pa. St. 377. (4) There is no merit in appellant's contention that the remonstrance does not prove itself, is not competent evidence that the persons who appear thereon ever signed the paper or authorized any other person to sign for them, and is not proper evidence that such persons own property abutting on the street. ...