Summary
In Cunningham et al. v. City of Butler et al., Mo., 256 S.W.2d 767, 768, the city intervened and was allowed to amend the journal nunc pro tunc to show that the ordinance had in truth and in fact been passed and the ayes and nays had been taken.
Summary of this case from City of Independence ex rel. Guinn v. HareOpinion
No. 43104.
March 9, 1953. Motion for Rehearing or to Transfer to Court en Banc Denied April 13, 1953.
APPEAL FROM THE CIRCUIT COURT OF BATES COUNTY, LAWRENCE HOLMAN, SPECIAL JUDGE.
Carl H. Willbrand, Kansas City, W. O. Jackson, Butler, for appellants.
James P. Aylward, George V. Aylward, Terence M. O'Brien and James P. Aylward, Jr., Kansas City, John H. Sheppard, City Atty., Butler, for respondents, City of Butler, H. L. Oberweather, Mayor, and Ray Winegardner, City Clerk.
Roger S. Miller, Kansas City, for respondent, Al Kranz d/b/a Kranz Const. Co.
Plaintiffs, as property owners in Sewer District No. 26 in Butler, Missouri, filed this suit to annul special sewer tax bills, amounting to $22,724.24, issued by the defendant City and made payable to defendant Al Kranz, doing business as Kranz Construction Company. Kranz was the contractor who constructed the sewer in said district. Alleged irregularities in the proceedings of the Butler City Council were relied on as grounds for annulling the tax bills. The trial court decided the tax bills were valid and denied the plaintiffs any relief. From the judgment entered, the plaintiffs appealed.
The record shows the following to have occurred: On August 5, 1947, the City Council of Butler, Missouri, passed an ordinance establishing Sewer District No. 26. Thereafter, the City on two occasions asked for bids for the construction of sewers in the district as outlined in an ordinance passed by the city council. The bids were rejected because they were considered too high. On August 4, 1950, the council passed an ordinance providing for the construction of sewers in the district and specified the dimensions and materials to be used, adopted the plans and specifications, and directed advertisements for bids. The defendant Al Kranz was the successful bidder and the City entered into a contract with Kranz for the building of the sewers. Kranz completed his contract and tax bills herein sought to be annulled were issued to Kranz in payment for construction of the sewers.
Plaintiffs do not contend that Kranz did not fully perform the contract according to the plans and specifications. The record shows they took no action questioning the validity of the proceedings until after the contractor had completed his work of construction and the tax bills had been issued. In such a situation a court of equity will not and should not annul the tax bills unless the proceedings of the city council were so defective as to render the tax bills void. Such has been the rule in this state as well as in many others for many years. See Sheehan v. Owen, 82 Mo. 458; State ex rel. Boatmen's Bank v. Reynolds, 281 Mo. 1, 218 S.W. 337, loc.cit. 341; 63 C.J.S., Municipal Corporations, §§ 1529, 1530, pages 1327-1330.
Plaintiffs say that Ordinance No. 36, passed on August 4, 1950, by which the city council provided for the construction of sewers in District No. 26, was void for the reason that the ayes and nays were not noted on the journal, as provided by Section 77.080 RSMo 1949, V.A.M.S. The record as entered by the City Clerk of the meeting on August 4, 1950, showed that five of the eight councilmen were present. Those present as shown by the journal were Blankenship, Norris, Foster, Stover, and Radford. The evidence of the City Clerk, Ray Winegardner, was that when Ordinance No. 36 was read for final passage all councilmen presented voted "aye" and no one voted "nay"; that he recorded the vote as 5 ayes and no nays. On October 6, 1951, after the present suit was filed, pursuant to a motion for leave to amend the minutes of the city council of August 4, 1950, by a nunc pro tunc entry, the trial court ordered the minutes to be amended so as to reflect in full what occurred. The five councilmen above-named each signed an affidavit that he had been present and had voted for Ordinance No. 36. The record shows that this order was made by Phil H. Cook, Special Judge. The trial of the case on the merits began January 15, 1952, before Lawrence Holman, Special Judge. The order of Judge Cook was beyond question correct. Plaintiffs say in their brief " Nunc pro tunc corrections of records are authorized only when there is some record upon which to base the correction." They cite State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167. In the case before us it could be ascertained from the minutes as made at the time Ordinance No. 36 was passed that the five councilmen present all voted "aye." It is evident that the nunc pro tunc order was proper. The Compton case, supra, rules this precise point. Sec 23 S.W.2d loc.cit. 170 (2, 3) (4) (5) (6). It should be noted that the nunc pro tunc entry did not change the record; it merely made the record show in detail what the record already showed in an abbreviated form. The record as it now appears in the office of the City Clerk is sufficient. In the case of Monett Electric Light, Power Ice Co. v. Incorporated City of Monett, Mo., C.C., 186 F. 360, much relied upon by the plaintiffs, there was no nunc pro tunc entry made. In fact, the city journal did not show what councilmen had voted for the ordinance. See 186 F. loc.cit. 369.
Next, plaintiffs contend that it was mandatory for the City Engineer, or some other officer designated, to prepare plans and specifications or to approve them if made by some other engineer. They cite Section 77.330 RSMo 1949, V.A.M.S., which authorizes the appointment of a City Engineer. Plaintiffs say the defendant City did not have such an officer and, therefore, the tax bills are void. The evidence was that W. D. Mann was designated as Supervisor of Public Works and Properties and as Street Commissioner. He was required to give bond for the faithful performance of his duties. Mann graduated from the University of Missouri in 1928. He also attended the University of Texas. By training and profession he was an electrical engineer. Mann testified that he supervised the construction of sewers in District No. 26 with the help of Black and Veatch, as consulting engineers. The plans and specifications were prepared by Black and Veatch whose qualifications were not questioned. Mann stated that he spent at least two hours each day inspecting the work while the sewers were being built. He testified that before the city council adopted the plans and specifications, he (Mann) checked the plans and accepted and approved them; that the plans had been approved by the Board of Health of Missouri before they were approved by him and adopted by the city council. In performing the duties of his office as Supervisor of Public Works and Properties, W. D. Mann adopted and approved the plans and specifications and also supervised the work of construction. We hold this was a substantial compliance with the law, even though some outside engineering firm prepared the plans and aided in supervising the performance of the contract. City of Jackson, to Use of Cape County Savings Bank v. Houck, 226 Mo. App. 835, 43 S.W.2d 908, loc.cit. 911 (4,5); City of Ferguson, to Use of United Const. Co. v. Steffen, Mo.App., 300 S.W. 1039, loc.cit. 1041(2).
Plaintiffs say the tax bills were rendered void because the City through its council amended the specifications and contract by an addendum which reads as follows:
"The City of Butler guarantees to sell the tax bills for the purpose of obtaining revenue to finance the construction of the proposed sewers (sections 26 28). Failing in this sale will invalidate this contract if so desired by the governing body of the City and Contractor. It is further guaranteed that there shall be no cost to the contractor as a result of tax bill methods of financing."
The work under the contract has been completed and Kranz, the contractor, still holds the tax bills as payments for his labors, therefore, the provisions of the addendum have not been enforced. We do not see how the addendum adversely affected the property owners in the sewer district. We must rule that the action of the city council did not invalidate the tax bills.
We have reviewed the record in full and find no valid reason which would justify the annulment of the tax bills.
The judgment of the circuit court is affirmed.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
BOHLING and BARRETT, CC., concur.
All concur.