Sessinghaus v. Central Paving and Construction Co.

• Decision Date: 21 June 1927
• Citation: 296 S.W. 1034,220 Mo.App. 1129
• Parties: WILLIAM SESSINGHAUS, RESPONDENT, v. CENTRAL PAVING AND CONSTRUCTION COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

296 S.W. 1034

220 Mo.App. 1129

WILLIAM SESSINGHAUS, RESPONDENT, v. CENTRAL PAVING AND CONSTRUCTION COMPANY, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 21, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.

Judgment affirmed.

Jourdan & English for appellant.

(1) In a suit by a property owner to cancel special tax bills, the plaintiff must point out the specific defect; because such tax bills are prima-facie evidence of the liability of such property owner to pay them. Huling v. Bandera Flag Stone Co., 87 Mo.App. 349; Exter v. Kramer, 251 S.W 918; Harris v. City of Cameron, 265 S.W. 862. (2) The only specific defect pointed out is that the ordinance authorizing the improvement was not passed at the proper time by the Board of Aldermen of the city of St. Louis. This objection to the validity of the bills is not tenable because no time is provided by the city charter for action by the Board of Aldermen upon a public improvement ordinance and where no time is specified such ordinance may be passed at any time. St. Louis Charter, Article IV, sec. 9; 28 Cyc. 995 Note 22; City Trust Co. v. Crockett, 274 S.W. 802. (3) Jurisdiction to pass an ordinance for a public improvement under the charter of the city of St. Louis is vested in the Board of Aldermen upon the recommendation by the Board of Public Service of such ordinance after publication of notice and hearing of the property owners regardless of any remonstrance, and subsequent events cannot oust such jurisdiction. St. Louis Charter, Article XXII, secs. 1, 2 and 3; Springfield v. Weaver, 137 Mo. 650; Koch v. Norton, 261 S.W. 125; Webb v. Strobach, 143 Mo.App. 459; State ex rel. v. St. Louis County Court, 38 Mo. 402; State v. Jaeger, 157 Mo.App. 341; Tackett v. Volger, 85 Mo. 480. (4) The Board of Aldermen of the city of St. Louis is a continuous body and proceedings commenced before that body looking to public improvements need not be completed at one session thereof, but may be finally completed in a succeeding session of such board. 28 Cyc. 320; 28 Cyc. 994, Note 15; 28 Cyc. 995-6, Note 28; 19 Ruling Case Law, Municipal Corporations (sec. 193), p. 893; Bond v. Mayor of Baltimore, 74 A. 14; State v. Mayor, 28 A. (N. J.) 381, 382; People ex rel. N. Y. C. & H. R. R. Co. v. City of Buffalo, 108 N.Y.S. 331; McGraw v. Whitson, 28 N.W. 632; Taintor v. Thurston, 78 N. E. (Mass.) 545; Reuter v. Meacham Contracting Co., 136 S.W. 1028; Smith v. Columbus Railway Co., 8 Ohio N. P. R. 1. (5) Failure to pass an ordinance introduced in the Board of Aldermen of the city of St. Louis at one session could amount at most to a negative vote, and a negative vote on the ordinance can be reconsidered and the ordinance passed at a subsequent session. 4 McQuillan on Municipal Corporations (sec. 1882), 4062; People ex rel. v. Rochester, 5 Lans. (N. Y.) 11; Tabor v. Ferguson, 109 Ind. 227; People v. Schenectady, 120 N.Y.S. 621; Mayor, etc., of Jersey City v. State, 30 N. J. L. 521; Cornell v. New Bedford, 138 Mass. 588; Tuell v. Meacham Contracting Co., 140 S.W. 159; Oswald v. Gosnell, 56 S.W. 165. (6) The reintroduction of the same ordinance in the Board of Aldermen after it has been twice read and referred to a committee is mere surplus action and does not oust the jurisdiction of the Board of Aldermen to pass such ordinance. State ex rel. Kansas City v. Smith, 302 Mo. 594. (7) The district laid out by ordinance was not invalid because of failure to specifically describe the boundaries of the district. It referred to and incorporated a plat then on file; and such incorporation by reference made the ordinance specific. 28 Cyc. 1007; Auditor General v. Caulkins, 136 Mich. 1; Becker v. City, 94 Mo. 375; Reinert Bros. v. Whitmer, 206 S.W. (Mo. App.) 387; Parker-Washington v. Field, 202 Mo.App. 159. (8) Special tax bills cannot be canceled at the suit of a property owner for mere irregularities which can be corrected in a suit on such tax bills, and in no event will a suit lie to cancel special tax bills for irregularities in the absence of a tender by the plaintiff of the amount due. Charter of the City of St. Louis, Article XXIII, Sec. 11; Neil v. Ridge, 220 Mo. 233; Haeussler Investment Co. v. Bates, 267 S.W. 632; City of Washington v. Mueller, 287 S.W. 856; Johnson v. Duer, 115 Mo. 366.

Oliver Senti, First Associate City Counselor, City of St. Louis, Amicus curiae.

(1) A special tax bill is prima-facie valid. Exter v. Kramer, 251 S.W. 918. (2) Unless otherwise provided by statute or charter an improvement ordinance may be enacted at a special session. City Trust Co. v. Crockett, 274 S.W. 802, l. c. 809. (3) Where no time is provided within which the council may act upon an ordinance presented by a board of improvements such limitation cannot be imposed by the courts. 28 Cyc. 995. (4) A resolution declaring the necessity for an improvement gives the council authority to pass an improvement ordinance, although there is an irregularity in the time of its passage. Webb v. Stobach, 143 Mo.App. 459. (5) (a) Where the charter authorizes a thing to be done and an ordinance undertakes to carry out the power granted the courts will lean to a construction which will uphold the ordinance. State v. Butler, 178 Mo. 311. (b) It is the duty of the courts to resolve all doubts in favor of the validity of a legislative act and they are reluctant to declare it invalid. State ex rel. v. Sheehan, 269 Mo. 421; St. Louis v. Murta, 283 Mo. 77; Wagner v. St. Louis, 284 Mo. 410. (6) The presumption in favor of the validity of a statute is indulged when the manner of its enactment is questioned. 12 C. J., p. 794, sec. 222; State v. Wray, 109 Mo. 549.

Fred Armstrong, Jr. for respondent.

(1) Under the Charter of St. Louis, and under the law in general a benefit district ordinance may not establish the boundaries for a benefit district for repaving (a) by reference to the ordinance fixing boundaries for a former paving, or (b) by reference to a plat. If the boundaries of a benefit district cannot be completely determined from the face of the benefit district ordinance, the ordinance is void. (a) Charter of St. Louis, Art. IV, sec. 12; 28 Cyc. 388, n. 99; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; 36 Cyc. 969, ff. 971, n. 97. (b) 28 Cyc. 276-278; 12 C. J., 839-864, esp. 847 ff. and 864; McQuillan, Municipal Ordinances, sec. 545; Haeussler v. Bates, 306 Mo. 392, 267 S.W. 632; Schneider Granite Co. v. Breweries Co., 258 Mo. 378, 168 S.W. 693; Davenport Locomotive Works v. City of Davenport, 185 Iowa 151, 169 N.W. 106. (2) When a benefit district ordinance specifies two sets of boundaries which do not exactly coincide (whether the specifications be on the face of the ordinance or, as in this instance, by reference to two external instruments) the ordinance is void for uncertainty. Even though the conflict be only the inclusion or exclusion of one or more areas of small size, in proportion to the total size of the district, the ordinance is completely void, and the difficulty cannot be met by any computation of tax bills or by any waiver of part compensation by the contractor. (3) Under the Charter of St. Louis it is mandatory that when a remonstrance is filed the Board of Public Service "at its next meeting shall reconsider and either reverse its action or transmit to the Board of Aldermen the ordinance authorizing the proposed work or improvement, together with said remonstrance." The Board of Public Service is not at liberty to postpone such action to a subsequent meeting for any reason whatever and, in the event appropriate action is not taken at said next meeting, the proceedings for improvement fail entirely. Charter of St. Louis, Art. XXII, sec. 3; Malleable Casting Co. v. Prendergast Const. Co., 288 Mo. 197, 231 S.W. 989; 36 Cyc. 1157 ff. (4) (a) The adjournment of a session of the Board of Aldermen sine die, without passing a bill introduced during the session, as a matter of law, under the Charter of St. Louis, voids the bill and, even more, may have the effect of a negative vote on it. Charter of St. Louis, Art. XXII, secs. 1, 2, 3, Art. IV, secs. 9, 17; 39 Cyc. 696-701; 36 Cyc. 849-850; 28 Cyc. 320-330, 994-997. (b) Even though, in the abstract, the charter might otherwise have been interpreted, the invariable interpretation thereof by and the invariable actual practice of the Board of Aldermen and other city authorities ever since the adoption of the charter, has been to consider as voided all bills introduced at the previous session, and the fact that the charter has invariably, in fact, during all these years, been so interpreted in the actual administration of the city business, constrains the court to adopt that interpretation. Millspaugh v. Kesterson, 307 Mo. 185, 270 S.W. 110; State v. First National Bank, 297 Mo. 397, 249 S.W. 619; State v. Becker, 291 Mo. 409, 237 S.W. 117; Macon County v. Williams, 284 Mo. 447, 224 S.W. 835; In re Publication of Supreme Court Docket, 232 S.W. 454; State v. Cupples Station, 283 Mo. 115, 223 S.W. 75. (5) Apart from the proper interpretation of the charter, certainly the Board of Aldermen is not compelled to carry over as unfinished business bills introduced at the preceding session. (a) In accordance with invariable practice, and under the facts in this particular instance, both the Board of Public Service and the Board of Aldermen actually treated the prior bill as voided by the expiration of the prior session, and the Board of Aldermen did by intention, duly executed, under the practice, void the bill and negatively act on it by adjourning sine die. Charter of St. Louis, Art. IV, secs. 9 and 17. (b) The Board of Public Service in this instance recommended a new (if identical) bill and the Board of Aldermen passed the...