Reinert Bros. Co. v. Tootle

• Decision Date: 11 November 1918
• Docket Number: No. 12816.,12816.
• Citation: 200 Mo. App. 284,206 S.W. 422
• Parties: REINERT BROS. CONST. CO. v. TOOTLE et al.
• Court: Missouri Court of Appeals

206 S.W. 422

200 Mo. App. 284

REINERT BROS. CONST. CO. v. TOOTLE et al.

No. 12816.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Suit by the Reinert Bros. Construction Company against Milton Tootle, Jr., and others, as trustees of the Buell Manufacturing Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Robert A. Brown and Richard L. Douglass, both of St. Joseph, for appellants.

W. N. Linn and B. M. Lockwood, both of St. Joseph, for respondent.

BLAND, J.

This is a suit on two grading tax bills issued by the city of St. Joseph, Mo. Plaintiff having recovered, defendants have appealed.

Defendants insist that the special ordinance providing for the grading contravenes section 8555, R. S. 1909, providing that —

"No bills except general appropriation bills shall contain more than one subject, which shall be clearly set forth in the title."

In the body of the special ordinance it was provided that the street should be graded—

"in accordance with plans and specifications " therefor on file in the office of the board of public works, a copy of which plans is herein attached, said plans and specifications being made a part of this ordinance by reference."

The grades had been previously established by general ordinance. The plans and specifications referred to in the special ordinance provided for small changes in the grade, established by general ordinance, at various points in the street that was to be graded. The title of the special ordinance was as follows:

"Special Ordinance No. 6676.

"An ordinance to provide for the grading of Eleventh street from Garfield avenue to the south city limits at Florence road, to the grades prescribed herein, prescribing a benefit district, and repealing all conflicting ordinances."

It is the contention of the defendants that because the special ordinance did not provide in its title that one of its purposes was to change the grade as fixed by the general ordinance, and substitute other grades therefor, the ordinance was void because not complying with the statute supra. We think there is no merit in this connection. The title of the ordinance plainly shows that the grading was to be done in accordance with grades fixed therein, repealing all conflicting ordinances. The title is somewhat general, but it refers in general terms to the subject of fixing grades, and provides for grading the street after such grades were fixed.

As was stated in Lynch v. Murphy, 119 Mo. loc. cit. 169-170, 24 S. W. 775:

"The generality of a title is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection."

One of the tests to determine whether the title sufficiently indicates what is the purpose of the ordinance is that it must express the subject in the act in such terms that the lawmakers and the people may not be left in doubt as to what matters are treated. State v. Burgdoerfer, 107 Mo. loc. cit. 30, 17 S. W. 646, 14 L. A. 846.

The mere generality of the title will not vitiate the ordinance unless the title is of such a nature as to compel a conviction that it was designed to mislead as to the subject dealt with. O'Connor v. Transit Co., 198 Mo. loc. cit. 639, 97 S. W. 150, 115 Am. St. Rep. 495, 8 Ann. Cas. 703. It is sufficient that the title does not mislead as to the chief topic of the act, and that the minor features of it have a reasonable and natural connection with the subject named in the title. State v. County Court, 128 Mo. loc. cit. 441, 30 S. W. 103, 31 S. W. 23. The title is not required to be an analytical index to the body of the ordinance. If the title is not a cloak to hide the object intended, the ordinance is valid. State v. St. Louis, 161 Mo. loc. cit. 398, 61 S. W. 658.

The section of the statute under consideration, while a mandatory provision, should be liberally construed. The statute will not annul an ordinance where all its provisions radiate from the "single subject" of the ordinance when within its just scope and reasonable application, and where that subject is pointed out in the title, which is not designed to mislead either the members of the city council or the people, but which contains a fair forecast of the contents of the ordinance. State ex rel. v. Revelle, 257 Mo. loc. cit. 538, 165 S. W. 1084.

As before stated, the general subject treated of in the title of this ordinance is the establishment of grades and the actual grading of the street to the grades so established. Anything that comes within the scope of these things was germane to the title. The fact that the body of the ordinance (by reference to the plans and specifications) changes the grades in some respects from that contained in the prior ordinance was not designed to mislead any one, for the reason that the title states that the grading should be made "to the grades prescribed herein." This was notice to all that the special ordinance fixed the grades to which the street was to be graded.

Defendants' next point is that the special ordinance was not published in accordance with section 8694, R. S. 1909, which provides as follows:

"The city clerk or the mayor shall, at the cost of the city, cause to be published a copy of said ordinance within twenty days from the taking effect of the same, in the newspaper at the time doing the city printing, in each issue of such paper for five consecutive issues."

It is the contention that this section required the publication to be "for a period of five consecutive days within twenty days after it was passed and approved." The ordinance was approved on February 24, 1914, and was published from March 16 to March 21, 1914. The first publication being within the twenty days described, we think that this is all the statute required. The statute in effect says that a copy of the ordinance shall be published in each issue of the newspaper doing the city printing for five consecutive days; that is, that each issue shall constitute a publishing of the ordinance, but that it must be so published five times. Of course there has been no publication of the ordinance, in the strict legal sense, until it is published five times; but the statute does not refer to such a publication, but the word "published," as used therein, is equivalent to the word "inserted," the first insertion to begin within twenty days after the taking effect of the ordinance. In view of the foregoing interpretation of the ordinance, it is unnecessary for us to decide whether this ordinance comes within the terms of section 8859, R. S. 1909.

There is no merit in the contention that the ordinance was not published because the proof of publication of the ordinance referred to stated that Ordinance No. 6675 instead of No. 6676 was published. The ordinance itself, and all the proceedings connected with the grading, shows that Ordinance No. 6676 was the ordinance referred to, and no one could have been misled by this slight mistake.

The facts in this case show that these defendants did not petition for the grading of the street, nor did they waive claims for damages therefor on account thereof, and for that reason the defendants say that the court erroneously failed to appoint commissioners to assess benefit and damages to the abutting landowners, as required by sections 8692, 8699, 8700, R. S. 1909, although the defendants failed to file with the clerk of the circuit court any claim for damages. Section 8692, R. S. 1909, provides as follows:

"Established City Street Grades Not to be Changed. — No street, avenue, sidewalk, alley or other public place in any city of the first class, excepting parks, parkways and boulevards, shall be graded so as to change the existing grade thereof,...