State Ex Rel. Barkwell v. Trimble

*549 WHITE'., J. Certiorari to the Kansas City Court of Appeals. This court is asked to quash the record of that court in reversing the judgment of the Circuit Court of Chariton County in the case of City of Brunswick ex rel. Barkwell v. Scott, in which the circuit court rendered judgment in favor of the plaintiff enforcing the lien of a special tax bill against the property of the defendant Scott. While that case was pending in the circuit court, this court had under consideration a companion case, Brunswick ex rel. Barkwell v. Beneke, 289 Mo. 307, a suit to enforce a special tax bill for the same improvement and issued at the same time as the tax bill under consideration now. We held there that the tax bill was invalid be *550 cause the ordinance and the contract for the improvement, for which it was issued, provided that the work should be completed within a certain time; that it was not completed within that time, and there was a stipulation on file in the case to the effect that no extension of time was asked or given, 1. c. 319-320. It was held that time was of the essence of the contract, and the tax bill therefore was void. Failure to finish the work within the time provided in the contract was set up in the answer in this case. After the decision in the Beneke case the plaintiff in this case filed a reply, alleging that the time was extended by the City of Brunswick for the completion of the work, that the work was completed within the extended time and accepted by the city. The Court of Appeals held that the stipulation in the former case was not present in this case and gave in the opinion a synopsis of the evidence upon that subject. The plaintiff introduced parol evidence over the objection of the defendant for the purpose of showing an extension ordinance was passed. Mr. Barkwell testified that he was present at the meeting and knew that an ordinance extending the time was passed by the council and signed by the mayor. The city clerk testified that he had made search for such ordinance and was unable to find it; that there was a meeting which Mr. Barkwell attended for the purpose of obtaining an extension of the time, and Barkwell made application for the purpose; that the witness kept minutes of the meeting on a sheet of paper in lead pencil, and he afterwards placed them in a record book. That those minutes had been lost or misplaced and he wrote up the record from memory. The récord he wrote shows the proceedings of the meeting at which it is claimed the extension’was had, but that record makes no mention of an ordinance extending the time. The clerk further testified that he had no recollection as to whether or.not such an ordinance was pássed. The Court of Appeals then announced the law applicable to the situation, citing Sections 8418 and 8467, Revised Statutes 1919: *551 “It malms no difference if an extension ordinance was passed; it being* lost the only method of proving* its existence is by a journal entry. If the ordinance in fact was passed and no record was made of the matter, then plaintiff is in the unfortunate condition of every other suitor in court who makes a claim that he cannot support.” The relator in claiming a conflict between this ruling and the decisions of this court cites certain eases in which it is held that where records are lost or destroyed their contents may be proved by parol. He cites particularly the case of Wells v. Pressy, 105 Mo. l. c. 177, where this court said that, when an ordinance is lost, a party claiming rights thereunder may show by parol evidence its contents as it passed the city council. ' There is nothing in this exposition of the Court of Appeals to conflict with that rule. The Court of Appeals quotes Section 8467, Revised Statutes 1919, which provides: “No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majdrity of the members elected to the board of aldermen shall vote for it, cmd the ayes and nays he entered on the journal.” This court, in the case of Light & Magnetic Water Co. v. City of Lebanon, 163 Mo. 254, held that the only way to prove the existence of an ordinance was by the record on the journal of the city, or by the ordinance itself. Section 8418, Revised Statutes 1919, as the Court of Appeals holds, is mandatory, requiring the board of aldermen to keep a journal of its proceeding’s. The board of aldermen speaks by its record. By Section 8467, an ordinance is not an ordinance until the ayes and nays by which it is passed are entered upon the journal. A vote is not a vote until so recorded. The relator in the trial court sought to prove the passage and existence of the ordinance, not by the record which alone could establish the fact, but by parol. He could not prove by parol the contents of an ordinance *552 until he first proved there was an ordinance. He could not prove the contents of the journal in relation to the matter unless he first proved that there was a journal entry. The Court of Appeals in reciting the evidence upon that point says: “Neither the city clerk nor anyone else testified that there ever was any minute or record of the passage of any extension, ordinance.” Since there was no record to prove it there was no evidence of the extension. The authorities cited by the relator to the effect, that parol evidence is admissible to prove the contents of a lost instrument or a lost record are inapplicable, because there is no proof that there was an instrument or a record to lose. Accordingly the writ in this case was improvidently issued and is therefore quashed. All concur.