Hinerman v. Williams
| Decision Date | 10 August 1920 |
| Citation | 224 S.W. 1017,205 Mo.App. 364 |
| Parties | J. H. HINERMAN, Respondent, v. HELOISE A. WILLIAMS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.
AFFIRMED.
Judgment affirmed.
C. G Shepard for appellant.
(1) The resolution published is the process by which the city council acquired jurisdiction of said improvements. It is a statutory method of obtaining jurisdiction and the statute must be strictly complied with, and unless the statute is strictly complied with the city council has no jurisdiction in the premises, and all proceedings in connection therewith are void. Webb v. Strobach, 143 Mo.App. 459; Stanton v. Thompson, 234 Mo. 7; John McMeneny Inv. and Real Estate Co. v. Stillwell Co., 184 S.W. 467; Hartley v. Bryanton, 17 F. 873; Bigelow v. Chatterton, 51 F. 614; Cissell v. Puloski Co., 10 F. 891; Cohen v. Portland Lodge, 152 F. 357; Cohen v Portland Lodge, 144 F. 267. (2) The parties protesting against having the work done were entitled to have an opportunity to appear before the city council and be heard on the proposition of whether or not a majority had in fact signed the protest, and the actotin of the council in calling a meeting at an unusual time, and without giving the protesting parties a chance to appear and be heard was a fraud upon such parties and sufficient of itself to vitiate the entire proceedings. Thompson Lumber Company v. Muskegon, 115 N.W. 957; Hyland Ossining, 57 Misc. 212, 107 N.Y.S. 225; Hensley v. Butte, 92, p. 34; Road Imp. Dist. No. 1 v. Glover, 110 S.W. 1031; Sears v. Atlantic City (N.J. Law), 68, 1093; Mulligan v. Smith, 59 Cal. 230; Zeigler v. Hopkins, 117 U.S. 683. (3) The jurisdiction of the city council to have the work done depends on whether or not a majority of the resident property owners owning a majority of the front feet abutting on that part of the street to be improved filed a protest with the city clerk protesting against having the work done. If such protest was in fact filed, then the council was without jurisdiction to proceed farther, and the fact that the council made a finding that a majority had not protested when in fact they had, would no more give the council jurisdiction, than "a man could lift himself from the ground by pulling at his own boot straps." Rhodes v. Coch, 176 S.W. 286; State ex rel. Coch v. Farrington, 195 S.W. 1044; Mulligan v. Smith, 59 Cal. 230; Zieglar v. Hopkins, 117 U.S. 683. (4) Where a life tenant resides on, and occupies the land against which the improvements are to be charged, he alone is the party to protest, therefore the protest filed in this case signed by Mollie L. Steele, Elizabeth Stpelton and Dr. H. T. Byars, they each being life tenants of the property represented by them, was a protest for said property and it was not in fact necessary for the other parties in interest to sign said protest. Rayburn v. Wallace et al., 93 Mo. 326.
Ward & Reeves for respondent.
(1) There is no provision of law in the charters of third class cities fixing the time of either regular or special meetings of the city council. Indeed there is no specific provision requiring meetings of the council. So, by necessary implication, the city council has the power to designate by ordinance the time of holding its regular meetings, and also to make reasonable provision by ordinance for the manner of calling and holding its special meetings. As nothing was shown on the trial of this case to indicate that the special meeting was held contrary to the general ordinances of the city, or contrary to the previous conduct or custom of the council in such matters, then it will be presumed that the meeting was lawfully held, and that the official acts of the council were legal. Savings Bank v. Ridge, supra; City of Rolla v. Schuman, supra; Paving Co. v. Ullman, 137 Mo. 568; Excelsior Springs v. Ettenson, 120 Mo.App. 222; Paving Co. v. Bath Co., 136 Mo.App. 558; Gist v. Construction Co., 224 Mo. 379; Dillon on Municipal Corporations (5 Ed.), sec. 538. (a) The statute applicable to these proceedings does not provide for a public hearing before the council on the question of protest, nor does the statute require such proceedings to take place at the regular meetings. Neither does the statute require or contemplate that notice of the meeting shall be given the protestants. Laws of Missouri, 1911, pp. 337-341; Laws of Missouri, 1917, p. 374. (2) The petition is sufficient. In fact it is much fuller and went much further in its averments than the law requires. City of Gallitan v. Netherton, 189 Mo.App. 24; Paving Co. v. Bath Co., 136 Mo.App. 555; Mexico v. Lakelan, 129 Mo.App. 180; Joplin v. Hollingshead, 123 Mo.App. 602; City of Carthage v. Badgley, 73 Mo.App. 123; Vieths v. Planet P. & F. Co., 64 Mo.App. 207; Turner v. Patton, 54 Mo.App. 654.
This is a suit on a tax bill issued by the city of Caruthersville, a city of the third class, against defendant's property for paving improvements. The cause was tried before the court and the finding and judgment went for plaintiff. Defendant, failing to get a new trial appealed.
The defendant answered by general denial, and special plea to the effect that the city council was without jurisdiction of the res, and could not, therefore, lawfully authorize the issue of the tax bill sued on. Defendant's two principal assignments are: (1) That the publication of the resolution required by section 9255, Laws 1911, p. 340, was not made as required by said section; (2) that a majority of the resident owners of the property affected, and who owned a majority of the front feet filed a sufficient protest as provided for in section 9255.
The city council on July 2, 1917, passed a resolution as required by section 9255 declaring the improvement necessary. This resolution was published in the Twice A-Week Democrat, a newspaper of general circulation, and printed and published in the city, for four consecutive issues, on July 3rd, 6th 10th, and 13th, 1917. The statute, section 9255, says that the council shall, by resolution, declare that they deem such improvement necessary to be made "and shall cause such resolution to be published in some newspaper printed and published in the city for two consecutive insertions in a weekly paper, or seven consecutive insertions in a daily paper." The resolution was neither published in a weekly paper nor a daily paper, and defendant says that the statute not having been complied with in this respect the city council did not acquire jurisdiction over the property to be taxed for the improvement, and as a consequence the tax bill sued on is wholly void. It was said in Leach v. Cargill, 60 Mo. 316, that proceedings to compel the citizen to pay for improvements in front of his property are proceedings in invitum, purely statutory, and therefore to be strictly construed. [See, also, Schulte v. Currey, 173 Mo.App. 578, 158 S.W. 888; Webb v. Strobach, 143 Mo.App. 459, 127 S.W. 680.] One of the principal objects of the resolution and its publication is to advise the property owners affected of what is contemplated by the proposed improvement so that they may have an opportunity to arrest the proceedings by a majority protest. [City of Kirksville ex rel. v. Coleman, 103 Mo.App. 215, 77 S.W. 120; Schulte v. Currey, supra.] We find no case in this State construing this statute in the respect here considered, and no case of another State construing a similar statute. Cases are numerous in our own and other States that such statutes must be strictly followed. But we think when the statute is interpreted alone by its letter that it does not necessarily exclude publication in any paper except a daily or weekly. The statute says that publication shall be in some newspaper printed and published in the city, for two consecutive insertions in a weekly or seven consecutive insertions in a daily In each case the reference to the character or kind of paper has no significance except to fix the time or duration of the publication. In the case of the daily the time between the first and last insertion would be one week, and in case of the weekly the time between the first and last insertion would be one week. This statute, it will be observed, does not require the resolution to be published for so many days or weeks, but that it shall be published in consecutive insertions. In Fellows v. Dorsey, 171 Mo.App. 289, 157 S.W. 995, this same statute and the publication of the resolution therein required was involved. There the publication was made in a paper held to be a daily within the meaning of the statute although it had no Sunday issue. The first publication was on June 27th, and the last on July 6th. There was no publication on June 28th, July 4th and 5th. Ten days elapsed between the first and last insertion, but during those ten days only seven issues were published, and the resolution appeared in each issue. One of the ten days was Sunday, one the 4th of July, a holiday, and July 5th, a work day. The paper was not issued on either of these three days. This was held a sufficient publication. In Porter v. Paving & Construction Co., 214 Mo. 1, 112 S.W. 235, a city ordinance which required publication of notice for letting a contract to construct a sewer for ten successive days before letting the contract was under consideration. The first publication was April 5th, and last one April 17th, making eleven publications, but there was no publication on April 7th and 14th, because these days were Sundays and the paper was not issued on Sunday. The contention there was that under the city charter and the ordinance it was essential that notice should be published every...
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