The Parker-Washington Company v. Field

• Decision Date: 16 June 1919
• Citation: 214 S.W. 402,202 Mo.App. 159
• Parties: THE PARKER-WASHINGTON COMPANY, a Corporation, Respondent, v. ANNA CAMP FIELD, Appellant
• Court: Kansas Court of Appeals

214 S.W. 402

202 Mo.App. 159

THE PARKER-WASHINGTON COMPANY, a Corporation, Respondent, v. ANNA CAMP FIELD, Appellant

Court of Appeals of Missouri, Kansas City

June 16, 1919

Appeal from Jackson Circuit Court.--Hon. William O. Thomas, Judge.

Judgment affirmed.

Ball & Ryland for respondent.

Johnson & Lucas, and R. H. Field for appellant.

OPINION

TRIMBLE, J.

This action is to enforce a special tax bill for $ 28.40 issued in part payment of a "joint district sewer" constructed under an ordinance of Kansas City, known as Ordinance No. 30,787, approved October 31 1905. Said taxbill is against Lot 5, Block 45, Hyde Park in said city, of which the defendant is the owner. Petition and tax bill are in the usual form, and their sufficiency to create a prima-facie case for plaintiff is not questioned.

The answer was a general denial. A jury was waived, the cause was tried by the court and a judgment was rendered sustaining the tax bill and enforcing same against the property described therein. From this judgment the defendant has appealed.

The first objection raised against the tax bill, and the one upon which the greater portion of appellant's brief is expended, relates to the validity of the ordinance in its passage through the Lower House of the City Council. The ordinance was in due and proper form; the president and secretary of the Board of Public Works certified thereon that the Joint Sewer District established and the sewers proposed to be constructed therein conform to the system of sewers established by the Board of Public Works and that said Board approved the ordinance. Said ordinance also showed that it passed the Lower House of the Common Council October 23 1905, that it passed the Upper House on October 30, 1905, and bore the approval and signature of the Mayor October 31 1905, and was attested by the city clerk with the seal of the city thereto affixed. Its passage through the lower and upper houses was shown upon the ordinance in this manner: "Passed Oct. 23, 1905, D. R. Spalding, Pro Tem Speaker Lower House of the Common Council" "Passed Oct. 30, 1905, H. M. Beardsley President Upper House of the Common Council." The journal of the proceedings of the Lower House on October 23, 1905, shows that all of the members were present but two, that the ordinance in question was passed, all the members present voting "aye." The point relied upon by appellant is that the ordinance was not signed by the Speaker of the Lower House but by Spalding as "pro tem speaker." The city charter provides that the lower house shall choose one of its own members to preside over its deliberations who shall be known as speaker. Homer Mann was at this time the regularly chosen speaker and Spalding was a member of said house. It seems that when the meeting first began, Mann was in the chair, but later in the meeting the record recites: "Alderman Spalding in the chair." Just why this was done is not disclosed; but it appears that it was customary for the presiding officer to call a member from the floor to the chair if for any reason he wished to step out or leave the stand. That was a common and ordinary occurrence, and such member so called from the floor to the chair sat as Speaker pro tem and was regarded, while in the chair, as Speaker pro tem even though the regular speaker remained in the room. This was done a great many times and had been the practice for years, and it had always been the recognized custom of the house that whoever was in the chair was the recognized speaker of the house. The member in the chair as speaker pro tem would sign the ordinances that were passed while he was in the chair, and the regular speaker would sign those ordinances that went through while he was in the chair, this occurring frequently on the same night or at the same meeting. For some reason during the meeting in question here the regular speaker, Mann, called Alderman Spalding to the chair, and the evidence discloses that during the transaction of the business done with Spalding in the chair Mann was present in the room and voted for all ordinances that were passed, including the ordinance involved herein. Appellant claims the ordinance never passed the lower house because the charter provides that an ordinance is not deemed passed by either house "until it is signed by the presiding officer." The charter also provides that the presiding officer shall sign it in open session and the clerk shall at once transmit the ordinance to the other house and if it be passed by such other house without amendment it shall be signed by the presiding officer and presented to the mayor. The purpose of the presiding officer's signature is to furnish the mayor with evidence of the fact that the ordinance had passed the house. The charter nowhere says the regularly elected speaker shall sign all ordinances whether he was presiding or not, nor does it say no ordinance shall be valid unless it bears the signature of the regular speaker. Mann was the regularly chosen speaker for a term of two years during which term this ordinance was passed but he was not the officer presiding when the ordinance was passed. Spalding was presiding then and he certified to its passage, the entire legislative authority of the city recognized it, the ordinance was approved by the Mayor and authenticated under the hand and official seal of the city clerk, the work was done under it, was received and approved, and now when the contractor is seeking to obtain his money, it is urged that because the ordinance does not bear the signature of the regular speaker, it should be regarded as never having passed the house and the whole proceeding should be declared null and void. Of course, if the ordinance lacked the support of passage through one of the necessary legislative branches, then no doubt it would not be become an ordinance, and those who build rights thereon and attempt to assert them must take notice of such absence of legislative sanction. But it seems to us that there is a distinction between acts done by an officer which are required to show that one of the legislative branches has passed on the matter and acts which are necessary to be done by a certain duly elected and qualified officer in order to constitute legislative or law making action on his part. For instance, the signature of the one presiding over one of the branches of the city Legislature is necessary to show that the bill passed, but the signature of the regular Mayor showing his approval is necessary before the bill can become an ordinance since he and he alone is one of the legislative branches to whom is committed the power of saying whether a bill...