St. Avit v. Kettle River Co.

• Decision Date: 25 August 1914
• Docket Number: 3954.
• Citation: 216 F. 872
• Parties: St. AVIT et al. v. KETTLE RIVER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 872

St. AVIT et al. v. KETTLE RIVER CO.

No. 3954.

United States Court of Appeals, Eighth Circuit.

August 25, 1914

Wilson Cramer, of Jackson, Mo., for appellants.

I. R Kelso, of Cape Girardeau, Mo. (J. G. Miller, of Cape Girardeau, Mo., on the brief), for appellee.

Before HOOK, ADAMS, and SMITH, Circuit Judges.

SMITH Circuit Judge.

The complainants seek to cancel, as clouds upon their title certain tax bills issued against their property by the city of Cape Girardeau to the Kettle River Company for grading paving, and improving certain streets in said city. The improvements here in question were made in 1909, and before the revision of the statutes of Missouri for that year, and reference will therefore be made to the Revised Statutes of 1899 and subsequent amendments thereto. Among the laws of Missouri, as they existed at the time of the improvement, was the following substitute for section 5859 of the Revised Statutes of Missouri of 1899, as amended Laws 1901, p. 65:

'Sec. 5859. When the council shall deem it necessary to pave, macadamize, gutter, curb, grade or otherwise improve the roadway of any street, avenue or alley, or other highway, or any part thereof, within the limits of the city for which a special tax is to be levied as herein provided, the council shall, by resolution, declare such work or improvement necessary to be done, and cause such resolution to be published in some newspaper printed in the city for two consecutive insertions in a weekly paper, or seven consecutive insertions in a daily paper, and if a majority of the resident owners of the property liable to taxation therefor, at the date of the passage of such resolution, who shall own a majority of the front feet owned by residents of the city abutting on the street, avenue or alley proposed to be improved, shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause a contract for said work to be let to the lowest and best bidder on plans and specifications filed therefor with the city clerk by the engineer or other proper officer, not less than one week's advertisement for bids thereon being made in some newspaper published in the city. Where the bids for said work are above the estimates, or no bids are presented, the council may readvertise for bids. When the council shall by ordinance find and declare that a majority of the resident owners of the property liable to taxation therefor who shall also own a majority of the front feet owned by residents of the city abutting on the street or alley proposed to be improved, have not filed with the city clerk a protest against such improvement such finding and declaration shall be conclusive after the execution of the contract for said improvement, and no special tax bill shall be held invalid for the reason that a protest sufficiently signed was filed with the city clerk. All county or other public property,' etc., etc.

The city council adopted a single resolution declaring it necessary to improve two blocks of Main street and two blocks of Themis street crossing the part of Main street ordered improved about the center and one block of Independence street extending that distance from Main street. In other words, the improvements ordered were of contiguous streets but not all on one street.

It is claimed that the statute quoted required a separate resolution for each named street. It will not be necessary to determine whether the expression used, 'improve the roadway of any street,' is of such a character as to limit the power of the city by a single resolution to determine the necessity for the improvement of a single named street. Webster's International Dictionary gives the word 'any' as having the same derivation as the word 'one,' but states that 'it is often used, either in the singular or the plural, as a pronoun. ' It is frequently used as synonymous with 'every' or 'all.' Bouvier's Law Dictionary; Rapalje & Lawrence Law Dictionary; volume 1, Words and Phrases, 412 to 433.

The city council adopted the resolution, and it was duly published, and these complainants came in and objected to the contemplated improvements, but made no objection on the ground that three streets were included in the resolution or that more than one street was included therein. The first time this question was ever raised was in the hearing before the referee in this case. The bill of complaint in no way made the combining of the streets in one resolution or ordinance a ground for relief.

But the statute (section 5859, Revised Statutes of 1899), as amended, expressly provided that if the council by order found and declared that a majority of the resident owners of the property liable to taxation, who also owned a majority of the front feet owned by residents of the city abutting on the street proposed to be improved, had not filed with the city clerk a protest against such improvement, such finding and declaration should be conclusive after the execution of a contract for said improvement, and no special tax bills should be held invalid, for the reason that a protest sufficiently signed was filed with the city clerk. Prior to the enactment of this amended statute it had been held that, in an action on the tax bills, the courts would revise the action of the city council in this regard. City of Sedalia v. Montgomery, 227 Mo. 1, 127 S.W. 50. But, since the enactment of this amendment to the statute, we have no doubt that the decision of the city council, which in this case was expressly made, was conclusive upon this question, as well as all others concerning the protest of adjacent property owners, and that, having failed to suggest the combining of three streets in one resolution until the hearing before the referee, nothing arising out of that fact can now avail the complainants.

At the time it took the contract, the defendant was a corporation organized under the laws of Minnesota. The articles of incorporation contained the following:

'Know all men by these presents that we, the undersigned, do hereby associate ourselves together for the purpose of carrying on a manufacturing and mechanical business, and we do hereby form and organize a corporation under and pursuant to the provisions of chapter eleven (11) of the General Laws of the state of Minnesota for the year 1873, General Statutes of said state of Minnesota 1894, sections 2805 to 2826, inclusive, and all laws of said state amendatory thereof and applicable thereto, and to that end do hereby make, adopt and sign the following articles of incorporation:

'Article 1. The name of the corporation shall be 'Kettle River Quarries Company.' The general nature of its business shall be the manufacturing and quarrying of stone of any kind or description and the selling and disposing of the same, and the doing of anything and transaction of any business that is properly incidental to or necessarily connected with a general stone manufacturing business. The principal place of business of said corporation shall be at the city of Minneapolis in the county of Hennepin and state of Minnesota.'

The Constitution of Missouri, art. 12, Sec. 7, provides:

'No corporation shall engage in business other than that expressly authorized in its charter or the law under which it may have been or hereafter may be organized.'

And the same provision was made by statute (section 971, R.S. Mo. 1899).

It must be borne in mind that this corporation has fully performed the contract upon its part. It is not claimed that the defendants are expressly prohibited by the law of the state of its origin to take the contract, nor is it claimed these laws did not authorize the formation of companies for the purpose of taking paving contracts like that in question. It is simply claimed there was an absence of the assumption of such power in the articles of incorporation of the defendant company, but it is claimed that the action of the company in taking the contract was ultra vires.

The Supreme Court of the United States has said:

'The doctrine of ultra vires, whether invoked for or against a corporation, is not favored in the law. It should never be applied where it will defeat the ends of justice, if such a result can be...