Hinerman v. Williams , 205 Mo. App. 364 ( 1920 )

This is a suit on a tax bill issued by the city of Caruthersville, a city of the third class, against defendant's property for paving improvements. The cause was tried before the court and the finding and judgment went for plaintiff. Defendant, failing to get a new trial appealed.

The defendant answered by general denial, and special plea to the effect that the city council was without jurisdiction of theres, and could not, therefore, lawfully authorize the issue of the tax bill sued on. Defendant's two principal assignments are: (1) That the publication of the resolution required by section 9255, Laws 1911, p. 340, was not made as required by said section; (2) that a majority of the resident owners of the property affected, and who owned a majority of the front feet filed a sufficient protest as provided for in section 9255.

The city council on July 2, 1917, passed a resolution as required by section 9255 declaring the improvement necessary. This resolution was published in the Twice A-Week Democrat, a newspaper of general circulation, and printed and published in the city, for four consecutive issues, on July 3rd, 6th, 10th, and 13th, 1917. The statute, section 9255, says that the council shall, by resolution, declare that they deem such improvement necessary to be made "and shall cause such resolution to be published in some newspaper printed and published in the city for two consecutive insertions in a weekly paper, or seven consecutive insertions in a daily paper." The resolution was neither published in a weekly paper nor a daily paper, and defendant says that the statute not having been complied with in this respect the city council did not acquire jurisdiction over the property to be taxed for the improvement, and as a consequence the tax bill sued on is wholly void. It was said in Leach v. Cargill, 60 Mo. 316, that proceedings to compel the citizen to pay for improvements in front of his property are proceedings in invitum, purely statutory, and therefore to be strictly construed. [See, also, Schulte v. Currey,173 Mo. App. 578, 158 S.W. 888; Webb v. Strobach, 143 Mo. App. 459, 127 S.W. 680.] One of the principal objects of the resolution and its publication is to advise the property owners affected of what is contemplated by the proposed improvement so that they may have an opportunity to arrest the proceedings by a majority protest. [City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215, 77 S.W. 120; Schulte v. Currey, supra.] We find no case in this State construing this statute in the respect here considered, and no case of another State construing a similar statute. Cases are numerous in our own and other States that such statutes must be strictly followed. But we think when the statute is interpreted alone by its letter that it does not necessarily exclude publication in any paper except a daily or weekly. The statute says that publication shall be in some newspaper printed and published in the city, for two consecutive insertions in a weekly or seven consecutive insertions in a daily In each case the reference to the character or kind of paper has no significance except to fix the time or duration of the publication. In the case of the daily the time between the first and last insertion would be one week, and in case of the weekly the time between the first and last insertion would be one week. This statute, it will be observed, does not require the resolution to be published for so many days or weeks, but that it shall be published in consecutive insertions. In Fellows v. Dorsey, 171 Mo. App. 289, 157 S.W. 995, this same statute and the publication of the resolution therein required was involved. There the publication was made in a paper held to be a daily within the meaning of the statute although it had no Sunday issue. The first publication was on June 27th, and the last on July 6th. There was no publication on June 28th, July 4th and 5th. Ten days elapsed between the first and last insertion, but during those ten days only seven issues were published, and the resolution appeared in each issue. One of the ten days was Sunday, one the 4th of July, a holiday, and July 5th, a work day. The paper was not issued on either of these three days. This was held a sufficient publication. In Porter v. Paving Construction Co., 214 Mo. 1, 112 S.W. 235, a city ordinance which required publication of notice for letting a contract to construct a sewer for tensuccessive days before letting the contract was under consideration. The first publication was April 5th, and last one April 17th, making eleven publications, but there was no publication on April 7th and 14th, because these days were Sundays and the paper was not issued on Sunday. The contention there was that under the city charter and the ordinance it was essential that notice should be published every day whether Sunday or not; that successive meant an uninterrupted course of publication, and the failure to publish on the two Sundays rendered the notice insufficient, and likewise the tax bills void. It was held in that case that the publication was sufficient. While we recognize that these cases do not rule directly on the point involved in the case in hand, yet they are cases in in vitum, and though the statute is to be strictly followed, yet a construction is given in harmony with sound reason and common sense. The purpose of the statute, section 9255, as pointed out, is to give the resident property owners affected an opportunity to protest if they desire, and we do no violence to the statute or good reason when we hold that publication in a newspaper on July 3rd, 6th, 10th and 13th imports notice as effectively as would have been the case had the publication been on July 3rd and 7th in a weekly or for seven consecutive insertions in a daily. To give any other construction would make it impossible under the statute as now for a city of the third class to improve its streets and sidewalks unless it had a daily or a weekly paper. We recognize, too, that the question here is not that the notice given may or may not have been as effective as if the publication had been in a weekly or a daily, but that the point is: Was publication of the resolution in a paper issued "twice a week" and on the dates mentioned a compliance with the statute: We hold that it was.

Defendant contends that even though it be held that the publication of the resolution is sufficient, that plaintiff cannot recover because the protest filed represented the majority of the resident property owners who owned a majority of the front feet on the street to be improved. There was a protest filed, and certain individuals who signed the same later endeavored to withdraw therefrom. Defendant contends that the attempt to withdraw came too late, and that the attempted withdrawal was ineffective, and that the protest should be considered as when filed. It is not conceded by plaintiff that if the protest be considered as it was when filed that it represented the majority of the resident property owners affected who owned a majority of the front feet. Also it is contended by plaintiff that at least two of the protestors could and should be eliminated, because their names appear to have been signed by an agent, provided, of course that the city council found that the agent or purported agent did not have authority to sign. Also plaintiff urges that one of the two protestors who signed by an agent did not in fact protest against the work, but protested against the kind of material which he understood would be used in making the improvement. It appears that the character of material which this protestor objected to was not used, and plaintiff says that this protestor should, therefore, not be counted in any event. Also it appears that the residence of some of the protestors was gone into in the trial of this cause, and also the interest owned, whether life estates or remainders, and other questions involving the right to protest, or the right to be considered as "an owner," etc. Plaintiff contends that if the protest be considered in its entirety as to the resident owners, except as to the one who protested against the material, that it does not represent a majority of the owners, and that in no event does it represent a majority of the front feet. There is nothing of consequence to show what facts were before the city council in its consideration of the protest or its finding that themajority as required by the statute had not protested. All that was in evidence in the trial of this cause that was before the city council were a list of purported property owners, and the number of front feet owned by each, prepared by an abstract company, the protest, and the attempted withdrawals. Neither side agrees with the purported list of property owners.

In Rhodes et al. v. Koch et al., 189 Mo. App. 371, 176 S.W. 286, 195 S.W. (Mo.) 1044, plaintiffs as the owners were seeking to enjoin the contractor and the city, a city of the third class, from making certain paving improvements or issuing tax bills. The resolution declaring the improvement necessary to be made was published from May 6th to 13th inclusive. What was conceded to be a sufficient protest, if filed in time, was filed on May 12th, one day prior to the last insertion of the resolution in the newspaper. The city council sought the advice of the city attorney, and this official advised that the protest was filed out of time, and for that reason was of no force and effect. The statute says that if the resident owners, etc. "shall not within ten days after the date of the last publication file" the necessary protest that the city council shall have the power, etc. This Court held that the protest was not filed out of time as the city attorney advised; and that the finding of the city council that the necessary majority had not filed protest was based upon an error of law and was reviewable. In that case there was no controverted fact, and the only question was purely one of law; but such is not the situation in the case at bar. Here the whole field of fact was gone over in the circuit court. Defendant endeavoring to establish as a fact that the protest was sufficient, and plaintiff endeavoring to establish the contrary. We say, therefore, that under this record, and under the statute the finding of the city council is conclusive.

Defendant makes the further contention that plaintiff who is the contractor and owner of the tax bill sued on cannot prosecute this cause in his own name; but that the cause should be prosecuted in the name of the city to the use of plaintiff. Defendant concedes in his brief that there have been similar suits prosecuted in this State in the name of the owner of the tax bill, but he says in none of these was the point raised. Sub. 9 of section 9254 as it appears in the revision of 1909 provides that "all special tax bills issued by such cities for any purpose authorized by this article shall be assignable and collectible in any action brought by the owner or holder of said bills, but the city shall not be liable for the costs in any such suit in any action brought by the owner." This same section as modified and reenacted, Laws 1911, p. 340, provides that "all special tax bills herein authorized shall be assignable, and the owner or holder of such tax bill may enforce the collection thereof by an action in any court having jurisdiction thereof." The language last quoted takes the place of the language as appeared in the revision of 1909. It will be observed that no reference is made in the Act of 1911 to the city not being liable for costs. We think that the cause was properly prosecuted in the name of the owner. Plaintiff says that he might have proceeded in the name of the city to his use, but that he could also proceed in his own name, and we agree.

Defendant asked and the court refused a number of declarations of law. Also complaint is made about the property owners affected not having an opportunity to be heard, etc. Our opinion we think covers all points raised in the offered declarations that it is possible or permissible to raise under the provisions of section 9255 as amended by the laws of 1911, p. 340, and under the record before us. The judgment below should be affirmed, and it is so ordered.

Sturgis, P.J., and Farrington, J., concur.