Cunningham v. City of Butler

• Decision Date: 09 March 1953
• Docket Number: No. 43104,No. 2,43104,2
• Citation: 256 S.W.2d 767
• Parties: CUNNINGHAM et al. v. CITY OF BUTLER et al
• Court: Missouri Supreme Court

Page 767

256 S.W.2d 767

CUNNINGHAM et al. v. CITY OF BUTLER et al.

No. 43104.

Supreme Court of Missouri, Division No. 2.

March 9, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 13, 1953.

Carl H. Willbrand, Kansas City, W. O. Jackson, Butler, for appellants.

James P. Aylward, George V. Aylward, Terence M. O'Brien and James P. Aylward, Jr., Kansas City, John H. Sheppard, City Atty., Butler, for respondents, City of Butler, H. L. Oberweather, Mayor, and Ray Winegardner, City Clerk.

Roger S. Miller, Kansas City, for respondent, Al Kranz d/b/a Kranz Const. Co.

WESTHUES, Commissioner.

Plaintiffs, as property owners in Sewer District No. 26 in Butler, Missouri, filed this suit to annul special sewer tax bills, amounting to $22,724.24, issued by the defendant City and made payable to defendant Al Kranz, doing business as Kranz Construction Company. Kranz was the contractor who constructed the sewer in said district. Alleged irregularities in the proceedings of the Butler City Council were relied on as grounds for annulling the tax bills. The trial court decided the tax bills were valid and denied the plaintiffs any relief. From the judgment entered, the plaintiffs appealed.

The record shows the following to have occurred: On August 5, 1947, the City Council of Butler, Missouri, passed an ordinance establishing Sewer District No. 26. Thereafter, the City on two occasions asked for bids for the construction of sewers in the district as outlined in an ordinance passed by the city council. The bids were rejected because they were considered too high. On August 4, 1950, the council passed an ordinance providing for the construction of sewers in the district and specified the dimensions and materials to be used, adopted the plans and specifications, and directed advertisements for bids. The defendant Al Kranz was the successful bidder and the City entered into a contract with Kranz for the building of the sewers. Kranz completed his contract and tax bills herein sought to be annulled were issued to Kranz in payment for construction of the sewers.

Plaintiffs do not contend that Kranz did not fully perform the contract according to the plans and specifications. The record shows they took no action questioning the validity of the proceedings until after the contractor had completed his work of construction and the tax bills had been issued. In such a situation a court of equity will not and should not annul the tax bills unless the proceedings of the city council were so defective as to render the tax bills void. Such has been the rule in this state as well as in many others for many years. See Sheehan v. Owen, 82 Mo. 458; State ex rel. Boatmen's Bank v. Reynolds, 281 Mo. 1, 218 S.W. 337, loc.cit. 341; 63 C.J.S., Municipal Corporations, Secs. 1529, 1530, pages 1327-1330.

Plaintiffs say that Ordinance No. 36, passed on August 4, 1950, by which the city council provided for the construction of sewers in District No. 26, was void for the reason that the ayes and nays were not noted on the journal, as provided by Section 77.080 RSMo 1949, V.A.M.S. The record as entered by the City Clerk of the meeting on August 4, 1950, showed that five of the eight councilmen were present. Those present as shown by the journal were Blankenship, Norris, Foster, Stover, and Radford. The evidence of the City Clerk, Ray Winegardner, was that when Ordinance No. 36 was read for final passage all councilmen presented voted 'aye' and no one voted 'nay'; that he recorded the vote as 5 ayes and no nays. On October 6, 1951, after the present suit was filed, pursuant to a motion for leave to amend the minutes of the city council of August 4, 1950, by a nunc pro tunc entry, the trial court ordered the minutes to be amended so as to reflect in full what occurred. The five councilmen above-named each signed an affidavit that he had been present and had voted for Ordinance No. 36. The record shows that this order was made by Phil H. Cook, Special Judge. The trial of the case on the merits began January 15, 1952, before Lawrence Holman, Special Judge. The order of Judge Cook was beyond question correct. Plaintiffs say in their brief 'Nunc pro tunc corrections of records are authorized only when there is some record upon which to base the correction.' They cite State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167. In the case before us it could be ascertained from the minutes as made at the time Ordinance No. 36 was passed that the five councilmen present all voted 'aye.' It is evident that the nunc pro tunc order was proper. The Compton case, supra, rules this precise point. See 23 S.W.2d loc.cit. 170(2, 3)(4)(5)(6). It should be noted that the nunc pro tunc entry did not change the record; it merely made the record show in detail what the record already showed in an abbreviated form. The record as it now appears in the office of the City Clerk is sufficient. In the case of Monett Electric Light, Power & Ice Co. v. Incorporated City of Monett, Mo., C.C.,...