Hinerman v. Williams

Decision Date10 August 1920
Docket NumberNo. 2419.,2419.
PartiesHINERMAN v. WILLIAMS.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Suit by J. H. Hinerman against Heloise A. Williams. Judgment for plaintiff, and defendant appeals. Affirmed.

C. G. Shepard, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BRADLEY, J.

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 the 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 3, 6, 10 and 13, 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, the 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 nrajority 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 10 days only seven issues were Published, and the resolution appeared in each issue. One of the 10 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 3 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 10 successive days before letting the contract, was under consideration. The first publication was April 5th, and last one April 17th, making 11 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 day whether Sunday or not; that "successive" meant an uninterrupted course of publication, and the failure to publish on the two Sundays rendered the notice insufficient, and likewise the tax bills void. It was held in that case that the publication was sufficient. While we recognize that these cases do not rule directly on the point involved in the case in hand, yet they are cases in invitum, and though the statute is to be strictly followed, yet a construction is given in harmony with sound reason and common sense. The purpose of the statute, section 9255, as pointed out, is to give the resident Property owners affected an opportunity to protest if they desire; and we do no violence to the statute or good reason when we hold that publication in a newspaper on July 3d, 6th, 10th, and 13th imports notice as effectively as would have been: he case had the publication been on July 3d and 7th...

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