Sessinghaus v. Central Paving and Construction Co.

* Corpus Juris-Cyc. References: Municipal Corporations, 43CJ, p. 491, n. 30; 28Cyc, p. 994, n. 13; p. 995, n. 22. This is a suit for the cancellation of two special tax bills, the one for $659.22, and the other for $117.59, issued by the city of St. Louis, in favor of defendant, and against the property of plaintiff. The court rendered a decree canceling the tax bills, from which, after an unavailing motion for a new trial, defendant has appealed. Plaintiff pleaded as grounds for the cancellation of the tax bills in question: First, that the improvement ordinance, authorizing the making of the contract with defendant, was not passed with the proper preliminaries; second, that the benefit district ordinance was void as not properly describing the boundaries of the district; and, third, that certain property had been omitted from the assessment, resulting in a miscalculation. The answer contained a restatement of the facts in accordance with defendant's theory of the case, tending to establish the validity of the tax bills. *Page 1135 The evidence disclosed that at a meeting of the Board of Public Service of the city of St. Louis, held November 3, 1922, the president thereof presented a draft of a proposed ordinance to establish a benefit or taxing district for the reconstruction of St. Louis Avenue, from Broadway to Fifteenth street, with accompanying plats, and recommended that the same be passed. Thereafter, such recommendation of the president was approved, and the proposed ordinance was recommended to the Board of Aldermen for passage. The property of plaintiff, against which the tax bills in suit were subsequently issued, was within the boundaries of such district. The draft of the ordinance was forwarded to the Board of Aldermen at the regular session of 1922-23 of said board, and was duly passed and approved by the Mayor, becoming Ordinance No. 32180. On February 13, 1923, the Board of Public Service set a public hearing on the improvement for March 2, 1923, which hearing was held, and on the same day the Board of Public Service filed its decision, recommending the reconstruction of the street in question, and specifying the kind of pavement to be placed thereon. On March 20, 1923, a written remonstrance was filed with the Board of Public Service by a majority of the property owners affected, including the plaintiff. At its next meeting, the Board of Public Service, notwithstanding the remonstrance, approved the draft of a proposed ordinance for the reconstruction of St. Louis Avenue, and sent said draft, together with the original remonstrance, to the Board of Aldermen, with the recommendation that the ordinance be passed. The draft of the ordinance in question was introduced in the Board of Aldermen as Bill No. 532, of the regular session of 1922-23, read twice, and referred to the Committee on Streets, Sewers, and Wharves. Without further action having been taken thereon, the Board of Aldermen, on April 5, 1923, adjourned sine die. Thereafter, on April 24, 1923, the Board of Public Service retransmitted an identical draft of such proposed ordinance to the Board of Aldermen, which meanwhile had reconvened for its 1923-24 session. It appears that the remonstrance in question was not forwarded therewith, and the record is silent as to whether the original remonstrance had remained with the Board of Aldermen, or whether it had been sent back by that body to the Board of Public Service. The proposed ordinance was introduced as Bill No. 39, of the session of 1923-24, and duly passed, and was approved by the Mayor as Ordinance No. 32937. Thereafter, the contract for the work was let to defendant, and, upon due performance by it of its obligations under said contract, the tax bills in suit were caused to issue in payment therefor. The learned trial judge held, in a memorandum opinion filed by him at the time of rendering his decree, that, when the Board of Aldermen *Page 1136 adjourned sine die on April 5, 1923, the bill pending before it died with the session; that no remonstrance was attached to the second proposed ordinance submitted, nor had there been a hearingde novo before the Board of Public Service before the reintroduction of the same; that the subsequent session of the Board of Aldermen was not empowered to carry on the proceedings originated by its predecessors; and that, inasmuch as the preliminary steps outlined by the charter of the city of St. Louis had not been taken anew by the Board of Public Service before the resubmission of the proposed ordinance, the Board of Aldermen was without authority to pass it, and, consequently, the tax bills in suit issued thereunder were invalid. Defendant questions the correctness of the above holding, contending that the decree of the court should have been in its favor, and against the plaintiff. The question decisive of this case is whether the 1923-24 session of the Board of Aldermen had the power to pass Bill No. 39, which was the proposed improvement ordinance as resubmitted by the Board of Public Service, and to such question we shall address ourselves. It seems to be agreed by the parties hereto that, under the provisions of the charter of the city of St. Louis, the enactment of an improvement ordinance requires that the following steps be taken: (1) The Board of Public Service must lay out a district and recommend the passage of an ordinance establishing such district. (2) The Board of Aldermen must pass such benefit district ordinance. (3) The Board of Public Service must give notice by advertisement of a hearing to the property owners affected. (4) Such hearing must be held. (5) The decision of the Board of Public Service must be filed in its office within three days thereafter. (6) A period of eighteen days must be allowed after the filing of the decision for a written remonstrance to be filed by the owners of the greater area of the land in such district. (7) If such remonstrance is filed, the Board of Public Service, at its next meeting, shall reconsider the question, and either reverse its former action, or transmit to the Board of Aldermen the proposed ordinance authorizing the improvement. (8) Such remonstrance must be transmitted to the Board of Aldermen along with the draft of the ordinance. (9) The Board of Aldermen must pass the ordinance. For the purpose of this opinion we shall disregard the objections of plaintiff to the form of the benefit district ordinance, and shall proceed upon the theory that the first eight of the above steps were originally fully complied with. Thus, we have the proposed ordinance *Page 1137 pending before the 1922-23 session of the Board of Aldermen as Bill No. 532. Without final action having been taken thereon, the Board of Aldermen adjourned sine die. The charter provides that one session of the Board of Aldermen shall be held annually, beginning on the third Tuesday of April. Pursuant to such provision, the Board of Aldermen duly convened for its 1923-24 session, and thereafter the Board of Public Service transmitted to this session an identical draft of the original ordinance, which was introduced as Bill No. 39, and passed. It is not contended that any of the preliminary steps outlined above were retaken before the resubmission of the ordinance. Accordingly, the power of the Board of Aldermen to pass Bill No. 39, in view of the situation existing, and the express provisions of the charter relating to the enactment of an improvement ordinance, is questioned. In 2 McQuillin on Municipal Corporations, section 676, we find the following concise statement of the rule of law applicable: "Prior to the introduction for passage of ordinances relating to public work and improvement which are to be paid for by special assessment or taxation (as sometimes termed), certain preliminary steps are usually required, as notice by advertisement of the contemplated work; public hearing; establishment of benefit, assessment or taxing districts; determination of protests or remonstrances; recommendation of the proposed ordinances by a designated board or department and estimate of the cost of the work endorsed thereon. These and like requirements are regarded as conditions precedent to final action on the ordinance; they are jurisdictional in their nature and noncompliance with them leaves the council without power to adopt the ordinance." Though recognizing the above doctrine, learned counsel for defendant in support of their argument that the ordinance as passed by the 1923-24 session of the Board of Aldermen was not invalid, even though the preliminary steps outlined in the charter had not been taken de novo by the Board of Public Service, suggest that, inasmuch as the charter fails to specify a time within which the Board of Aldermen may act upon an improvement ordinance, such ordinance may be passed at any time; that the Board of Aldermen of the city of St. Louis is a continuous body, and proceedings commenced by that body looking to public improvements, need not be completed at one session thereof, but may be completed in a succeeding session of such board; that the failure of the 1922-23 session to pass Bill No. 532 could have amounted at most to a negative vote, which could be reconsidered, and the ordinance passed at a subsequent session; and that the reintroduction of the same ordinance at the 1923-24 session was mere surplusage, and did not oust the jurisdiction of the Board of Aldermen to pass the same. *Page 1138 We appreciate the doctrine that, when no time is provided within which a city council may act upon an ordinance presented and recommended by a board of local improvements, such a limitation cannot be imposed by the courts. [28 Cyc. 995.] We are also aware that it has been held by very respectable authority that a municipal council is a continuous body, although its membership may be changed from year to year, and that business begun in a municipal council may be completed after its members have gone out of office and a new council has been elected. [Reuter v. Meacham Contracting Co., 143 Ky. 557, 136 S.W. 1028; McGraw v. Whitson, 69 Iowa 348, 28 N.W. 632; People ex rel. v. City of Buffalo, 123 A.D. 141, 108 N.Y.S. 331; Bond v. Mayor, etc., of Baltimore, 111 Md. 364, 74 A. 14; Taintor v. Thurston, 192 Mass. 522, 78 N.E. 545; 19 R.C.L. p. 893, sec. 193; 28 Cyc. 320; 2 McQuillin on Municipal Corporations, sec. 604.] Such holdings, however, do not determine the issues involved in this case. It is by no means our purpose to attempt to place a limitation upon the time within which the Board of Aldermen might have passed Bill No. 532, the introduction of which at the 1922-23 session had been preceded by all of the required preliminary steps. Nor are we concerned with the question of whether the Board of Aldermen is a continuous body, as defendant contends, for the reason that Bill No. 532 has never been passed, either at the session at which it was introduced, or at any subsequent session. When the Board of Public Service transmitted the draft of the proposed ordinance to the 1922-23 session of the Board of Aldermen, it exhausted the power conferred upon it by the charter, and thereafter the duty devolved upon the Board of Aldermen to make disposition of the bill thus pending before it, without the passage of which there could be no authority in law for the making of the improvement in question. The recommendation by the Board of Public Service of a new, if identical, draft, to the subsequent session of the Board of Aldermen, was neither authorized by the charter, nor preceded by the necessary steps outlined therein. Furthermore, the draft was not transmitted to the Board of Aldermen by the Board of Public Service at its nextmeeting after the filing of the remonstrance, nor was it accompanied by such remonstrance. We think the conclusion is inescapable that the requirements of the charter were conditions precedent to final action touching the improvement in question, and were jurisdictional in their nature. As we have indicated above, Bill No. 532 of the 1922-23 session of the Board of Aldermen had been preceded by the required steps, but it was never passed. Bill No. 39 of the 1923-24 session was passed, but its transmittal to the Board of Aldermen had not been preceded by the prescribed preliminaries on the part of the Board of Public *Page 1139 Service. It follows, therefore, that noncompliance with the mandatory provisions of the charter by the Board of Public Service before transmitting the draft of the proposed ordinance for the second time precluded the Board of Aldermen from proceeding to act thereupon, and that the ordinance enacted in a manner other than that prescribed by the organic law of the municipal corporation must be held invalid, as are also the tax bills in suit issued thereunder. Accordingly, the Commissioner recommends that the judgment of the circuit court be affirmed.