Cox v. Mignery

• Decision Date: 04 November 1907
• Citation: 126 Mo. App. 669,105 S.W. 675
• Parties: COX v. MIGNERY et al.
• Court: Missouri Court of Appeals

105 S.W. 675

126 Mo. A. 669

COX v. MIGNERY et al.

Kansas City Court of Appeals. Missouri.

November 4, 1907.

Rehearing Denied December 2, 1907.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — SPECIAL ASSESSMENTS — ACTION TO CANCEL—ESTOPPEL—GROUNDS.

In a suit in equity to cancel special tax bills issued against plaintiff's property to pay for street improvements authorized by an ordinance of the city council, on the ground that the ordinance was not passed by a two-thirds majority of the members elect of the city council, as required by Laws 1903, p. 63, § 8 [Ann. St. 1906, § 5747-8], it cannot be urged that plaintiff by remaining silent while his property was being benefited under the ordinance, which he knew was invalid, is barred to assert its invalidity as ground for the cancellation of the tax bills issued under it.

2. SAME.

Persons whose property is being assessed by a municipality to pay for proposed street improvements authorized by municipal ordinance have no more control over the streets than any other persons, and it cannot be said that the contractor making the improvement is induced by their action in failing to assert the invalidity of the ordinance authorizing the improvement to proceed with the work, so that they are required to invoke the interposition of the courts to declare the ordinance void before the work is done in order to escape liability for the invalid assessment.

3. SAME—ORDINANCE—STATUTORY PROVISIONS.

Laws 1903, p. 63, § 8 [Ann. St. 1906, § 5747-8], requiring that a city ordinance authorizing a street improvement and issue of tax

bills against the abutting landowners to pay for the improvement be passed by a two-thirds majority of the members elect, is mandatory, and, if such an ordinance did not receive this majority, the council have no authority to declare it passed, but it is void, and a proceeding in equity will lie to cancel tax bills issued under it.

4. SAME — PROCEEDINGS OF COUNCIL — ORDINANCE.

Common councils of municipal corporations generally are regarded as miniature legislative bodies, and their ordinances are entitled to the presumption indulged with respect to statutes enacted by the state Legislature.

5. EVIDENCE—PAROL EVIDENCE—LEGISLATIVE RECORDS—CONCLUSIVENESS.

Parol evidence is inadmissible to impeach legislative records.

6. STATUTES — VALIDITY — EVIDENCE — LEGISLATIVE JOURNALS.

Records preserved by the houses of the Legislature which contain a history of the proceedings culminating in the enactment of a statute are admissible in evidence to prove or disprove that the mandatory requirements of the organic law were fully satisfied.

7. SAME—PRESUMPTIONS—BURDEN OF PROOF.

Where an enrolled statute discloses on its face no ground of invalidity, the presumption that it was enacted in accordance with the requirements of law is very strong, and may be overcome only by legislative records clearly showing the fact to be otherwise, and the burden is on the one urging the invalidity to adduce conclusive proof of that fact.

8. MUNICIPAL CORPORATIONS—ORDINANCES— PRESUMPTIONS—BURDEN OF PROOF.

An ordinance of a municipal corporation relating to the improvement of public streets, and the assessment of the cost thereof against the abutting landowners, where it does not show on its face that it was not passed by the two-thirds majority required by the mandatory provisions of the charter, is presumed to have been so passed, and the burden is on one claiming otherwise to introduce proof to rebut the initial presumption.

9. ALTERATION OF INSTRUMENTS—EVIDENCE— PRESUMPTIONS AND BURDEN OF PROOF.

The rule that where a written instrument, whether a private contract or public record, is interlined, the alteration is presumed to be bona fide and to have been made before the contract was executed or the record approved, and the burden is on the party attacking the instrument to show that it was altered after execution or approval, does not obtain where the interlineation is in itself suspicious; but if it appears to be contradictory to the probable meaning of the instrument as it stood before, or if it is in different writing from the body of the instrument, or if it destroys the legality of the instrument or the validity of the legislative act, there is no presumption of good faith, and the burden is on the party relying on the interlineation to show that it was made before the execution of the contract or the approval of the public record.

10. SAME—EXTRINSIC EVIDENCE.

In such cases extrinsic evidence is admissible, not on the theory that it may be used to impeach a written instrument or record, but that it may be used to establish the actual record.

11. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS— VALIDITY OF ORDINANCE—EVIDENCE.

In a suit in equity to cancel tax bills issued against the property of plaintiff to pay for a street improvement authorized by a city ordinance, on the ground that the ordinance was not passed by a two-thirds majority vote of the members elect of the city council, as required by Laws 1903, p. 63, § 8 [Ann. St. 1906, § 5747-8], the minute book kept by the clerk, in which he made pencil entries of proceedings as they occurred, which showed the number of votes received by the ordinance, and the testimony of the clerk, his deputy, and the members of the council as to what took place at the time the ordinance was passed, and what entries and changes were made in the record, were admissible as evidence.

12. SAME—SUFFICIENCY.

In a suit to cancel tax bills issued against the property of plaintiff to pay for a street improvement authorized by a city ordinance on the ground that the ordinance was not passed by a two-thirds majority vote of the members elect of the city council, as required by Laws 1903, p. 63, § 8 [Ann. St. 1906, § 5747-8], evidence examined, and held to show that the ordinance received the required number of votes.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Suit in equity by Lewis H. Cox against William Mignery and another to cancel certain special tax bills issued against the property of plaintiff. From a judgment dismissing plaintiff's petition, he appeals. Affirmed.

Spencer & Landis, for appellant. Fulkerson, Graham & Smith and Charles F. Strop, for respondents.

JOHNSON, J.

This is a proceeding in equity to cancel certain special tax bills issued against the property of plaintiff by the city of St. Joseph, a city of the second class. After hearing the evidence, the trial court found the issues in favor of defendants, and dismissed the petition.

The tax bills which gave rise to this controversy were a part of those issued by the city to pay for the cost of "repairing and paving the roadway, constructing sidewalks, curbing and guttering on Twentieth street from the south line of Frederick avenue to the north line of Mulberry street in said city." Plaintiff was quite active in opposing the passage of the ordinance which provided for the doing of the work. He was present when the ordinance was passed, and, if it is invalid because of the jurisdictional defect in its passage claimed by plaintiff, he knew of that defect, but refrained from taking any steps in court to prevent the doing of the work, and did not bring the present action until after the improvement had been completed and his property had received its share of benefit therefrom. Defendants argue from this fact that plaintiff has no standing in a court of equity, since he will not be permitted to preserve silence while his property is being benefited under an ordinance which he knows to be invalid, and then to bring forth the invalidity as a ground for the cancellation of the assessment levied against his property. Respectable authority may be found sustaining the principle invoked even in cases where the defect is more than a mere irregularity, but in this state it has been held on several occasions that the principle does not apply where the work is being done under a void ordinance; i. e., one passed without due observance of all, the precedent conditions required by statute. The persons whose property is to be assessed to pay for the proposed improvement have no more control over the streets than any other persons nor can it be said that the contractor is induced by their nonaction to proceed with the work, and there is no reason for requiring them to invoke the interposition of the courts before the work is done in order to escape a liability which has no foundation in law. Verdin v. City of St. Louis, 131 Mo., loc. cit. 98, 33 S. W. 480, 36 S. W. 52; Keane v. Klausman, 21 Mo. App. 485; Perkinson v. Hoolan, 182 Mo. 189, 81 S. W. 407. In the case before us the specific ground of attack is that the ordinance was not valid because it failed to receive the votes of two-thirds of the members elect of the council, the number requisite to its...