Rutherford v. Hamilton

• Decision Date: 18 March 1889
• Citation: 97 Mo. 543,11 S.W. 249
• Parties: RUTHERFORD v. HAMILTON et al.
• Court: Missouri Supreme Court

11 S.W. 249

97 Mo. 543

RUTHERFORD v. HAMILTON et al.

Supreme Court of Missouri.

March 18, 1889.

MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — CONSTITUTIONAL LAW.

1. The city charter of St. Joseph authorized the mayor to call a special meeting of the council at any time, and a majority of the members of the council constituted a quorum. A regular session of the council was had on July 8th, and adjourned to meet again in one week. The next record of a meeting was on July 16th, when the mayor and 8 of the 10 members of the council were present. It appeared that regular municipal business was transacted, and a record thereof preserved. Held that, in the absence of evidence to the contrary, it would be presumed that the meeting of July 16th was properly convened, and that a certain contract passed upon was properly approved.

2. In an action to enforce a special tax-bill issued in payment of the construction of a sewer, the original record of the ordinance authorizing the sewer, as produced by its proper custodian, was admissible in evidence.

3. Const. Mo. art. 9, § 7, provides that not more than four classes of cities and towns shall be permitted, and that the power of each class shall be defined by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same provisions. Held, that act Mo. March 28, 1881, authorizing a sewerage system in cities of a certain size, and acting under special charters, was not in contravention of such article.

4. Such act was not unconstitutional, because the cost of the construction of a sewer was authorized to be apportioned against the property fronting on the improvement in proportion to the frontage of each lot.

Appeal from circuit court, Buchanan county; M. A. REED, Judge.

This is an action to enforce a special tax-bill issued by the city engineer of St. Joseph in payment for a lateral sewer designed for the drainage of adjacent property of which defendant owns a part. The work was done by authority of the special charter of St. Joseph (1851) and its amendments, and ordinances thereunder, as well as of "An act authorizing cities acting under special charters, and containing more than thirty thousand, and less than fifty thousand, inhabitants, to establish a system of sewerage, and to construct, establish, and keep in repair sewers, culverts, and drains," approved March 28, 1881, (Sess. Acts 1881, p. 69.) At the trial it appeared that, under the ordinance of that city, the contract for the work required the approval of the city council. The regular quarterly session of that body began July 8, 1881, and adjourned to meet again "one week from" that night. The next record of a meeting is of July 16, 1881, when the mayor and 8 of the 10 members were present, and transacted business, among other things approving the contract in question. It is claimed that this was no sufficient approval. Among other evidence, the plaintiff offered the ordinance authorizing this work, as contained in the special ordinance book of the city register, having first introduced the following general ordinance relating to the subject: "Section 1. All ordinances passed by the city council shall be recorded by the register, and shall take effect from and after their passage, unless therein otherwise expressly provided. The originals shall be filed in the register's office, and due proof of publication of all ordinances by the affidavit of the printer or publisher shall be procured by the register, and attached thereto, or written and attested upon the face of the record of such ordinances." In the record of proceedings of the council three ordinances of similar title appeared, — two passed May 24 and the other June 16, 1881. The one projecting the sewer in question and providing for its construction was approved by the mayor, June 17, 1881. The question of its actual passage prior to that approval was submitted to the jury at defendant's instance as a question of fact by an instruction, and it was found to have been so passed. After the work contemplated by the ordinance was finished, the cost was apportioned by the engineer as a tax upon the adjoining property in proportion to its frontage, and special tax-bills issued, of which that here in suit is one. There was a judgment for the plaintiff in the...