Town of Fletcher v. Hickman

• Decision Date: 29 March 1905
• Docket Number: 2,019.
• Citation: 136 F. 568
• Parties: TOWN OF FLETCHER v. HICKMAN. [*]
• Court: U.S. Court of Appeals — Eighth Circuit

136 F. 568

TOWN OF FLETCHER v. HICKMAN. ^[*]

No. 2,019.

United States Court of Appeals, Eighth Circuit.

March 29, 1905

Guy Le Roy Stevick (O. N. Hilton, on the brief), for plaintiff in error.

Thomas K. Skinker, for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and LOCHREN, District Judge.

HOOK Circuit Judge, after stating the case as above, .

It is contended by counsel for plaintiff in error that the ordinance was invalid for the reason that it was not passed at a legal meeting of the board of trustees of the town, and also because it was not published as required by the Colorado statute. The records of the board of trustees showed that at an adjourned regular meeting of that body, held on June 3 1891, at which was present a legal quorum, a further adjournment to June 5th was ordered, and on the latter day no quorum being present, the meeting was adjourned to June 8th, at which time there was a quorum, and the ordinance was passed by the requisite number of votes. The particular contention is that, because of the absence of a quorum on June 5th, the meeting died as matter of law, there could have been no legal adjournment thereof, and therefore the meeting at which the ordinance was adopted was wholly unauthorized. But we cannot assent to this conclusion. The mayor and four of the six trustees were present and acted in the passage of the ordinance. They assembled at a time when a legal session was possible and transacted other business of importance. The minutes of the meeting were duly entered and still remain upon the public records of the town. It is not essential that every step leading up to the assemblage of a city council or connected with proceedings which are within the general powers conferred upon it be shown with that degree of strictness which is required in tracing title to realty back to its fountain head. There is a presumption, which is in accord with a wise public policy, in favor of the regular and rightful performance of official duty by public officers. 'Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium. ' And when, as in this case, many years after the passage of an ordinance out of which substantial rights have grown, it is assailed upon such a ground as that here presented, it may be assumed, if necessary, that the meeting was a special one, and that the two absent trustees were duly advised thereof and of the matters to be then considered and passed upon.

In Knox County v. Bank, 147 U.S. 91, 97, 13 Sup.Ct. 267 269, 270, 37 L.Ed. 93, it was said:

'The election was held, the votes cast at that election were canvassed by the proper officers, and an order made by the county court for a subscription in accordance with the terms of the order for the election. From these facts it may be presumed that proper notices of the election were given: for it is a rule of very general application that, where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.'

An instructive case is Rutherford v. Hamilton, 97 Mo. 543, 11 S.W. 249. It involved the validity of a special tax bill. The contract for the work required the approval of the city council. That body met in regular session July 8, 1881, and adjourned to meet 'in a week from' that night. The next record of a meeting was of July 16, 1881, when the major and eight of the ten councilmen were present and transacted business, among which was the approval of the contract in question. The court said:

'Nothing is stated regarding the cause of their assembling. It may have been upon special call of the mayor, or in supposed compliance with the adjournment of eight days before. It appears that regular municipal business was transacted and a record thereof was preserved in the usual way by the proper officer. In the absence, therefore, of any evidence to the contrary, it will be presumed that these public officers rightly acted in the premises and that the meeting was properly convened.'

In Duluth v. Krupp, 46 Minn. 435, 49 N.W. 235, it was held that the same presumptions obtain that a city ordinance was legally passed as in the case of an act of the Legislature.

In Freeholders v. State, 24 N.J.Law (4 Zab.) 718, it was held that, if any proceeding of a municipal corporation be had at an adjourned meeting, it will be presumed, until the contrary is shown, that the meeting was rightly adjourned, and that it is not necessary that the facts showing the proper convening should appear upon the face of the proceedings.

See, also, Scott v. Paulen, 15 Kan. 162, 167; Downing v. Miltonvale, 36 Kan. 740, 14 P. 281; O'Mally v. McGinn, 53 Wis. 353, 10 N.W. 515; Town of Eldora v. Burlingame, 62 Iowa, 32, 17 N.W. 148; Atchison Board of Education v. DeKay, 148 U.S. 591, 601, 13 Sup.Ct. 706, 37 L.Ed. 573.

A statute of Colorado provided that, to be effective, the ordinances of a town must be published in some newspaper published within its corporate limits, or, if there be none, in one of general circulation therein, or, if there be...