Steiger et al. v. City of Ste. Genevieve
| Decision Date | 04 June 1940 |
| Docket Number | No. 25385.,25385. |
| Citation | 141 S.W.2d 233 |
| Parties | ANTON A. STEIGER ET AL. (PLAINTIFFS), RESPONDENTS, v. THE CITY OF STE. GENEVIEVE (DEFENDANT), APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Ste. Genevieve County. — Hon. James B. Billings, Special Judge.
AFFIRMED.
Rozier & Houser for respondents.
(1) The proceedings of the board of aldermen of March 2 and May 4, 1936, were wholly ineffectual to constitute the legal passage of the pretended Ordinances Nos. 1202 and 1205, and said proceedings and "ordinances" are null, void and of no force and effect in law. R.S. Mo. 1929, sec. 7016; 43 C.J. 505; Farmer's Telephone Co. v. Washota, 157 Iowa, 447, 133 N.W. 361; Cook v. Independence, 133 Iowa, 582, 110 N.W. 1029; Markham v. Annamosa, 122 Iowa, 689, 98 N.W. 493; Olin v. Meyers, 55 Iowa, 209, 7 N.W. 509; Knepfle v. Southgate, 194 Ky. 346, 238 S.W. 1051; De Ridder v. Head, 139 La. 840, 72 So. 374; Marthasville v. Chambers, 135 La. 767, 66 So. 193; Pickton v. Fargo, 10 N.D. 469, 88 N.W. 90; O'Neil v. Tyler, 3 N.D. 47, 53 N.W. 434; McQuillan, "Municipal Corporations", sec. 650, p. 496; State ex rel. Barkwell v. Trimble, 309 Mo. 546, 274 S.W. 683; City of Brunswick v. Scott, 219 Mo. App. 45, 275 S.W. 994; City of New Franklin v. Edwards (Mo. App.), 23 S.W. (2d) 235; Monett Electric Light & Power Co. v. Monett, 186 Fed. 360. (2) The election of April 7, 1936, held for the purpose of submitting to the qualified voters the proposition of ratifying the pretended Ordinance No. 1202, was invalid for the reason that the said pretended ordinance, purporting to call the election, was void. Tennent v. City of Seattle, 145 Pac. 83, 83 Wash. 108; 15 Cyc. 374; State v. Little Rock, etc., R. Co., 31 Ark. 701; Munroe v. Wells, 83 Md. 505, 35 Atl. 142; People v. Johnson, 6 Cal. 673. (3) The proceedings of the board of aldermen of October 18, 1937, do not validate pretended Ordinances Nos. 1202 and 1205, or the so-called election of April 7, 1936, and in law are a nullity. Webb v. Strobach, 143 Mo. App. 459, 127 S.W. 680; Becker v. Henderson, 100 Ky. 450, 38 S.W. 857; 43 C.J. 517; R.S. Mo. 1929, sec. 6968; Samis v. King, 40 Conn. 298; 43 C.J. 514, and 517; 3 A.L.R. 1314; Balisdell v. The Wm. Pope, 19 Mo. 157; Miles v. Davis, 19 Mo. 408; Kiley v. Cranor, 51 Mo. 541, 543; Kiley v. Oppenheimer, 55 Mo. 374; Stadler v. Both et al., 59 Mo. 400; State ex rel. v. Phillips, 102 Mo. 664, 15 S.W. 319; Judd v. Smoot, 93 Mo. App. 289; Coatsworth Lumber Co. v. Owen, 186 Mo. App. 543, 556, 172 S.W. 436, 440; 2 McQuillan, "Municipal Corporations," sec. 657, p. 511; John Hadley v. Crowell Chamberlin, 11 Ver. 618.
Smith & Roberts and Harry J. Petrequin for appellant.
(1) That under the law and evidence Ordinance 1202 and Ordinance 1205 are legal and valid and that the special election held thereunder on April 7, 1936, was and is legal and valid. State v. Walter, 23 S.W. (2d) 167; State v. Caruthers, 51 S.W. (2d) 126; Cox v. Mignery & Co., 126 Mo. App. 669; Webb v. Strobach, 143 Mo. App. 459; State ex rel. Consolidated School District v. Hackman, 209 S.W. 92; State ex rel. School District of Afton v. Smith, 82 S.W. (2d) 61; Tompkins et al. v. Harris, Judge, et al., 236 S.W. 368; Robbins v. City of Herrin, 293 Ill. 133; City of Logansport v. Crockett, 64 Ind. 319; Commonwealth ex rel. v. Schubmehl, 3 Pa. 186; Everett et al. v. Deal et al., 148 Ind. 90; Becker v. City of Henderson, 100 Ky. 450; Ryder's Estate v. City of Alton, 175 Ill. 94; Mott v. Reynolds, 27 Vt. 206; Bishop v. Cone, 3 N.H. 513; Gibson v. Bailey, 9 N.H. 176.
This is a proceeding in which thirty-eight residents of territory which defendant, The City of Ste. Genevieve, has attempted to bring within its corporate limits, sue to have the annexing ordinances declared null and void, and to have defendant and its officers perpetually restrained and enjoined from levying and assessing municipal taxes against the land or residents within the territory purportedly annexed; from collecting, or attempting to collect, license fees, duties, or charges; and from exercising any municipal authority or function over said territory or over any of the residents thereof.
From a decree declaring the ordinances in question to be invalid, null, and void, and perpetually enjoining defendant and its officers as prayed in plaintiffs' petition, defendant has in due course perfected its appeal to this court.
The proceedings for the annexation of the territory in which plaintiffs reside were initiated at a regular meeting of the board of aldermen of defendant city on March 2, 1936, when, according to the journal entry which was made by the clerk at the time, Ordinance No. 1202, concerning and extending the corporate limits of the city, calling an election for that purpose, etc., was read three times "and unanimously adopted."
While the journal entry recited that when the meeting was called to order by the mayor, there were present six aldermen, namely, Wehmeyer, Rehm, Bauman, Karl, Kunkel, and McNeece, it did not recite whether all of said aldermen had remained at the meeting and had voted for the passage of the ordinance, nor, as will be observed, did it affirmatively show a compliance with the requirements of section 7016, Revised Statutes Missouri 1929 (Mo. Stat. Ann., sec. 7016, p. 5743), which provides, as applicable to cities of the fourth class to which defendant city concededly belongs, that no bill shall become an ordinance unless on its final passage a majority of the members elected to the board of aldermen shall vote for it, "and the ayes and nays be entered on the journal."
Incidentally, as will presently appear, it is the failure of this and a succeeding journal entry to have shown the ayes and nays of the votes taken of the aldermen upon the passage of the annexing ordinances which forms the basis of plaintiffs' contention that the ordinances purportedly enacted on these occasions were in fact null and void and of no legal effect.
Thereafter, on April 7, 1936, at the regular city election held on that date, the proposition to extend the city limits, as submitted pursuant to Ordinance No. 1202, was carried by a vote of 210 for, and 110 against.
After a canvass of the votes, the board of aldermen, at its regular meeting on May 4, 1936, purported to enact Ordinance No. 1205, declaring that as the result of the election, the corporate limits of the city thenceforth included the territory described in Ordinance No. 1202.
The journal entry which was made up by the clerk on that occasion recited that the meeting was called to order by the mayor, with aldermen Rehm, Uding, Karl, Bauman, McNeece, and Okenfuss present, and that after the ordinance had been read three times, it "was unanimously adopted" and ordered filed.
Seemingly, Uding and Okenfuss had meanwhile replaced Wehmeyer and Kunkel on the board of aldermen as the result of the election of April 7, 1936.
Again it will be noted that the journal entry failed to recite whether all of the six aldermen present at the beginning of the meeting had remained and voted for the passage of Ordinance No. 1205, and again it failed to show the ayes and nays on the vote as required by section 7016, supra, in designating the conditions precedent upon which a bill may become an ordinance.
Following the attempted annexation, defendant city admittedly assumed municipal authority and control over the territory so included within its extended limits, and on July 29, 1937, almost sixteen months after the election which had been held upon the proposition, plaintiffs instituted this suit attacking the legality of the proceedings had by the city by which the annexation of their territory had been accomplished.
In their petition, plaintiffs alleged that the annexing ordinances were not only null and void for want of entries in the journal of the ayes and nays of the votes by which they had purportedly been adopted, but also that quite aside from any question of irregularity in their attempted enactment, they were in any event unreasonable and arbitrary in that the territory included in the scheme of annexation was not needed for any proper municipal purposes of defendant city; that such territory, which was used chiefly for agricultural and horticultural purposes, was not adapted to municipal purposes; and that such territory and its inhabitants, if included within the corporate limits of defendant city and brought under its authority, would not derive any special benefits on account of the annexation to compensate for the additional burdens and liabilities imposed.
Thus apprised of plaintiffs' reliance upon the jurisdictional fact that the ayes and nays had not been entered in the journal as required by section 7016, supra, the board of aldermen, on October 18, 1937, at a special session called for that purpose, undertook to correct and amend such journal entries nunc pro tunc so as to show the votes by ayes and nays in each instance.
Almost twenty months had elapsed since the time of the regular meeting at which the scheme of annexation had been proposed and an election called for that purpose, and meanwhile there had been not only the two changes in the personnel of the aldermen already mentioned, but also a third change, one Beckerman having at some time during that period replaced McNeece upon the board. Thus of the aldermen who had been members of the board on March 2, 1936, at the time of the purported enactment of Ordinance No. 1202, only three remained at the time of the special meeting at which the correction nunc pro tunc was attempted, while of the six who had been on the board on May 4, 1936, at the time of the purported enactment of Ordinance No. 1205, only five remained at the time of the calling of the special meeting.
By resolution adopted at such special meeting, it was recited that the clerk, in...
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