Gilsonite Roofing & Paving Company v. Handlan
| Decision Date | 28 June 1910 |
| Citation | 129 S.W. 770,150 Mo.App. 239 |
| Parties | GILSONITE ROOFING & PAVING COMPANY, Respondent, v. ALEXANDRIA H. HANDLAN, JR., Appellant |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. Geo. H Williams, Judge.
Judgment affirmed.
H. A Loevy for appellant.
(1) The court erred in striking out all the allegations of the answer, and in rejecting all the evidence offered in support thereof, and of the counterclaim, for these reasons: The records of legislative bodies are not conclusive, and it will only be conclusively presumed that the two houses of the Assembly did what their journals say they did, no more, no less. Miller v. Dunn, 62 Mo. 216; Baker v Underwood, 63 Mo. 384; Chandler v. Bailey, 89 Mo. 641; 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. 506; St. Joseph v. Farrell, 106 Mo. 437; Mitchner v. Holmes, 117 Mo. 185; State ex rel. v. Bank, 120 Mo. 161; Railroad v. Jones, 54 Mo.App. 529; State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Field, 119 Mo. 533; St. Louis Co. Ct. v. Griswold, 58 Mo. 176; Sedalia v. Scott, 104 Mo.App. 687; Paving Co. v. O'Brien, 128 Mo.App. 282. (2) The power to pass ordinances must be exercised in the manner prescribed by law. Trenton v. Coyle, 107 Mo. 193; Saxton v. St. Joseph, 60 Mo. 153; Stewart v. Clinton, 79 Mo. 107; State ex rel. v. Barlow, 48 Mo. 17; Saxton v. St. Louis, 56 Mo. 277; Parkinson v. Partridge, 2 Mo.App. 60, 95 S.W. R. 316; Boonville v. Stephens, 28 Cyc. 333; Knopfi v. Roofing Co., 92 Mo.App. 279; Sedalia v. Scott, 104 Mo.App. 599; Sedalia v. Montgomery, 109 Mo.App. 220; Paving Co. v. O'Brien, 128 Mo.App. 282. (3) The counterclaim is valid. The petition admits partial payment of $ 551.72. The bill being void, could not be the basis of a valid demand or cause of action. Respondent has received that much money from appellant without consideration and must repay it: (a) Whenever money has been received which in equity and good conscience belongs to another it may be recovered in an action for money had and received. Pipkin v. Assn., 80 Mo.App. 1; Richardson v. Drug Co., 92 Mo.App. 515; Gwin v. Schnur, 49 Mo.App. 361; Henderson v. Koenig, 192 Mo. 690; Clifford v. Donovan, 195 Mo. 262; Stout v. Hardware Co., 110 S.W. 619. (b) It lies where the sum paid was not in fact due. Davis v. Krum, 12 Mo.App. 279. (c) Even money paid by mistake of law can be recovered if it was not equitably due. Foster v. Kirby, 31 Mo. 496; Lyle v. Shinnebarger, 17 Mo.App. 66. (d) When a void lien is paid off, the amount paid may be recovered. Handy v. Call, 30 Me. 9.
Nagel & Kirby for respondent.
(1) The charter of the city of St. Louis nowhere requires that remonstrances against street improvements shall be considered by the municipal assembly. (2) Even if the charter inferentially requires the consideration of a remonstrance by the municipal assembly, there is no provision requiring the entry of such consideration in the journal, and in the absence of evidence to the contrary, it will be presumed that the ordinance was properly enacted. State ex rel. v. St. Louis, 169 Mo. 31; Cox v. Mignery & Co., 126 Mo.App. 669. (3) Even if the charter had expressly required the consideration of such remonstrances by the assembly, still unless such provision were mandatory, the failure to observe it would not invalidate the ordinance. St. Louis v. Foster, 52 Mo. 513; State ex rel. v. Mead, 71 Mo. 266; Water Co. v. Aurora, 129 Mo. 540; State ex rel. v. Wilder, 211 Mo. 305; Porter v. Paving & Construction Co., 214 Mo. 1. (4) The plea having been stricken from the answer, all the evidence offered was properly excluded. Vieths v. Planet Co., 64 Mo.App. 207. (5) The record fails to show under what circumstances the amount of the counterclaim was paid, and no basis was laid for a judgment thereon in favor of appellant.
This is an action on a special taxbill for a balance of $ 2573.29, the taxbill having been issued on account of the reconstruction of Grand avenue between Laclede and Manchcester avenues, in the city of St. Louis. The taxbill was originally for $ 3125.01, but prior to the institution of the action appellant had paid one installment, $ 551.72. The plaintiff in its petition gives credit for this payment and asks judgment for the balance with interest as provided by ordinance. The answer, after a general denial, pleads the proceedings in the board of public improvements and municipal assembly of the city of St. Louis, leading up to the passage and approval of the ordinance, and prays for cancellation of the taxbill as void. The matter pleaded in this answer in avoidance of the order and the taxbill issued thereunder is, in substance, that a remonstrance against the proposed improvement was lodged with the board, the remonstrance being signed by over eighty-six per cent of the property-owners adjacent to the proposed reconstruction; that the board overruled the remonstrance and unanimously voting in favor of the ordinance for reconstruction, submitted a draft of the proposed ordinance, accompanied by the remonstrance, to the municipal assembly; that the house of delegates and the city council considered the ordinance submitted and passed it by the requisite vote of two-thirds of the members of each body; but that neither house had considered the remonstrance accompanying the ordinance; that each had failed and refused to consider the said remonstrance. This, it is claimed, is in violation of sections 14 and 16 of article 6 of the charter of St. Louis. Following this is a plea of the two-years Statute of Limitations as against the bill, and a counterclaim or cross-petition for the recovery of the $ 551.72, paid by defendant on the taxbill, is interposed, it being averred as a reason why this should be recovered, that defendant had paid it, at the time not knowing that the taxbill was illegal, null and void and was not a lien upon and against his property. A motion was sustained to strike out all those parts of the answer relating to the failure of the municipal assembly to consider the remonstrance and that part of it pleading the two-years Statute of Limitations, defendant duly saving exceptions. On a trial of the case before the court, a jury having been waived, the service of the special taxbill on defendant, that since the service nothing had been paid on account of the taxbill, and that the balance remained unpaid, was admitted. This was all the evidence offered by plaintiff.
The defendant thereupon offered in evidence the minutes of the meeting of the board of public improvements, showing the public meeting held in accordance with notice; the minutes of the meeting of the board before which the remonstrance of eighty-six per cent of the owners of the land made taxable for the improvement was presented, heard orally and referred to the committee on street department; the report of that committee that on investigation they had ascertained that the owners of the major part of the property on the line of the proposed reconstruction, that is to say eighty-five and six-tenths per cent of the property, had remonstrated against the same and that fourteen and four-tenths per cent of the property-owners petitioned for brick paving; that the board had overruled the remonstrance; approved the improvement, notwithstanding the remonstrance; adopted and drafted an ordinance by unanimous vote of the board submitted the same to the house of delegates, accompanied by the remonstrance of a majority of the property-owners within the boundaries of the district subject to taxation for the proposed improvement, and setting out that notwithstanding this remonstrance, the board was unanimously of the opinion that public interest demanded that the improvement as proposed in the above named ordinance be made and that the ordinance is recommended to the municipal assembly for passage by the unanimous vote of the board. Defendant also offered the minutes of the house of delegates in connection with the ordinance and the passage thereof, the first entry showing that at a meeting of the house, the proposed ordinance was reported and as the record shows, "accompanying the above named ordinance are remonstrances of a majority of the property-owners with the boundaries of the district subject to taxation for the proposed improvements, to-wit, remonstrances of A. H. Handlan et al." The remainder of the record offered shows the passage of the ordinance through both houses of the municipal assembly by the requisite two-thirds vote, but does not contain any further references to the remonstrance, nor does it show affirmatively...
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