City Trust Co. v. Crockett , 309 Mo. 683 ( 1925 )

The plaintiff sued, as assignee of a tax bill issued by the city of Caruthersville, a city of the third class, for certain improvements made on a part of Ward Avenue. The tax bill was issued May 4, 1918, for $457.59, bore interest at the rate of six per cent per annum, and was payable in five annual installments.

Upon the request of defendant, the cause was submitted to a jury, and there was a verdict for plaintiff in the sum of $423.47, and both parties have appealed.

The defendant, by objection duly made, challenged the sufficiency of the petition, and urges that it is insufficient. The contention is that the petition recites no part of the resolutions or ordinances pertaining to the improvement; that it does not state any of the contents of the tax bill, but merely refers to it as an exhibit. Counsel upon this point have cited several cases, only one of which was a suit upon a special tax bill.

These cases, except two, are merely authority for the well-known rule that the exhibit forms no part of the petition. Irvin v. Devors, 65 Mo. 625, was a suit on a special tax bill. The defects pointed out were that the petition failed to state that the tax bill was issued by virtue of an ordinance duly passed, and failed to state that the engineer of the city, in computing the cost, charged the lot of the defendant only with its proportion, in accordance with the frontage thereof.

In Vaughn v. Daniels, 98 Mo. l.c. 234, the suit was one upon a tax bill issued for general taxes. The petition wholly failed to describe the lands.

In Section 8369, part of the charter of cities of the third class, there is the following provision: "It shall be sufficient for the plaintiff, in any suit on such special tax bill, to plead the making of the tax bill sued upon, giving date and contents thereof, and the assignment thereof, if any, and to allege that the party or parties made defendant own, or claim to own, the lands charged, or some estate or interest therein, as the case may be, and to file the tax bill in suit."

In this case the petition alleges that the improvement was made under authority of Ordinance No. 278, giving the date of its approval, which ordinance provided for the said improvements; that the city council in pursuance of that ordinance, and the powers in it vested by law, awarded the contract to the contractor, named therein; that said contract was duly confirmed by Ordinance No. 297; that the work had been done and completed according to the terms of the contract by the contractor and had been accepted by the city; and "that after the completion of said work, the cost thereof was duly assessed and apportioned against the land and property chargeable, therewith, according to the frontage, as provided by law."

The petition further alleges the making and issuance of the tax bills according to said apportionments; alleges that the defendant is the owner of said lot in said city, particularly describing the same. The petition further alleges the amount assessed and apportioned against the said lot was its proportionate share of the cost of making said improvement, and was the sum of $457.59, and alleges issuance of said tax bill to J.H. Hinerman, the contractor, for said sum for doing said work and against the said lot.

The sufficiency of the petition in suits upon tax bills has been before the courts of appeals in numerous cases. Among them may be mentioned Carthage ex rel. v. Badgley, 73 Mo. App. 123; Fellows v. Dorsey, 171 Mo. App. 289; City of Gallatin v. Netherton, 189 Mo. App. 24.

We are of the opinion that the objection to the sufficiency of the petition was properly overruled.

I. The resolution declaring it was necessary to make the improvements was passed by the counsel on the second day of July, 1917. The answer is long, but its essential allegations may be summarized.

The defendant averred that the initial resolution was not published according to law and that the council acquired no jurisdiction; that said resolution was ordered published for two consecutive weekly insertions in the "Twice-a-Week Democrat," a newspaper published twice a week in said city; that the first publication was on July 3, 1917; and that the last publication was on July 10, 1917; that a remonstrance signed by a majority of the resident property owners owning a majority of the front footage, was filed on July 9, 1917; that later, on July 16, 1917, there was another protest filed, signed by a majority of the resident property owners, owning a majority of the front footage abutting on the part of said streets sought to be paved; that while part of the names on each protest were the same, yet there were seven names of resident property owners on the protest filed on July 9, 1917, whose names were not on the protest filed July 16, 1917.

In this connection, it may be stated as a fact shown by the record that the resolution was ordered to be published for four consecutive insertions, and was published in said newspaper for two weeks consecutively, in its twice-a-week issues, that is, on July 3d, July 6th, July 10th and July 13th, 1917.

The answer alleges that the council, after the filing of said protests, procured a committee to see those remonstrating, and avers that the last day for protesting was on July 20, 1917, and the last day for withdrawing from such protest was July 20, 1917, and that the withdrawals of ten resident property owners were permitted to be filed and were filed on July 23, 1917; that the regular meeting of said city council was on the first Monday evening of each month, but that said council met at nine o'clock on the morning of July 24th, without giving any notice to the protesting property owners, and passed a resolution permitting the names of ten of the protesting property owners to be withdrawn from the remonstrances; and it is alleged that the action of the council in allowing and considering said withdrawals filed on July 23, 1917, was a mistake of law and that under the law it was not permitted that said ten property owners could withdraw from said remonstrances after July 20, 1917.

It is alleged that the council was not in legal session on July 24, 1917, when it passed the ordinance making the finding and declaring that a majority of the property owners who were also owners of a majority of the front footage had not remonstrated, and that the council in its action at that time, acted secretly and fraudulently, and ignored the remonstrance filed July 9th, and that said remonstrances combined, contained the names of about two-thirds of the resident owners. At this point it may be stated that the record of the council shows that the council considered both of said protests. It is alleged that the council found that there were fifty-eight resident property owners owning property on that part of the street sought to be improved; that of said fifty-eight, twenty-three remonstrated against having the work done, leaving thirty-five in favor of having the work done; that there should have been counted thirty-three property owners as remonstrating, and only twenty-five counted in favor of having the work done by reason of the mistake of law made by the council in allowing withdrawal of said ten persons from the remonstrance.

It is alleged that the statute (Sec. 9255, Laws 1911, p. 340; Sec. 8324, R.S. 1919) which purports to give to the city council the right to pass on the question whether a legal remonstrance has been filed, and gives no opportunity for parties in interest to appear, and which makes the finding of the council final and binding, after the execution of the contract, deprives the protesting property owners of their day in court, and deprives them of their property without due process of law, in violation of Section 30 of Article 2 of the Constitution of Missouri, and in violation of the Fourteenth Amendment of the Constitution of the United States.

The answer further alleges that the resolution published by the council failed to apprise the property owners of the amount of grading to be done on said street, and that the work of grading and paving was done in such an unskillful manner, and that it was of such poor materials, as to make it of no real benefit to the property owners.

The answer further avers that the statute law of Missouri, in that it purports to confer jurisdiction upon the city council by publication in a newspaper only, without notice to defendant, for the purpose of fixing a lien or tax upon the property of defendant, is in violation of the due process clauses of the State and Federal constitutions, and under the latter is an abridgment of the privileges or immunities of defendant as a citizen of the United States.

The reply was a general denial.

II. Defendant objected to the introduction of the tax bill in evidence and urged then, and does now, that it should have stated separately the charges made against defendant's property for excavating, grading, curbing and paving, and that mingling them is a violation of Section 8323, and a violation of the law of liens. It is suggested that Section 8323 enacts different apportionments for grading, paving, curbing and guttering, and that a part of the work was not divisible by frontage only.

Section 8323 has the following provision: "The cost of grading streets and alleys shall be charged against the lots and tracts of land fronting or abutting on the street or alley, or part of same, so improved, and on the improvement, in proportion to the number of fronting or abutting feet." Also the further provision: "The cost of making curbing . . . shall be charged against the lots and tracts of land fronting or abutting on the improvement in proportion to the fronting or abutting feet, excepting that . . . in making curbing, corner lots shall be charged with the cost of extending the curbing to the curb lines of intersecting streets, and curving and extending the curbing back to the street line at intersecting streets and alleys."

Said section also has the further provision: "On the completion of any improvement, in accordance with the contract for same, the city engineer shall compute the cost thereof, and apportion said cost among the tracts of land chargeable therewith, charging each tract of land with its proportionate part of said cost, as herein required, and shall make a written report to the council that the improvement has been completed, in accordance with the contract for same, which report shall also contain a description of each tract of land chargeable with a part of the cost of the improvement, and the amount with which it is chargeable."

The tax bill in question recites the making of the improvements pursuant to the resolution, and to the ordinance; recites the acceptance of the work by the council, and its approval of the report of the engineer, and that in accordance therewith there had been levied the sum mentioned against the certain lot here in question, particularly describing it: "The sum so charged being the proportionate part of the cost of said improvement, as provided by statute." It further recites: ". . . that there are 8,967.31 feet frontage of property abuting on said improvement, and that there are 10,464 feet of improvement between the lines named, and that there are 120 feet frontage in said lot herein described, and that there are 11 feet of curbing extending from curb line to curb line of intersecting streets." It further recited the total cost of the said improvements.

Under the statute quoted, it is made the duty of the city engineer to compute the cost of the improvement and apportion the cost among the tracts chargeable therewith, "charging each tract of land with its proportionate part of said cost as hereinrequired." That is, under this statute, corner lots, in respect to the making and extending of curbing, are to be charged in accordance with the provision that has been quoted.

We think the recitals of the tax bill sufficiently show that this provision of the statute has been complied with.

The section mentioned provides that each tax bill shall, in substance, contain a brief, general statement to the facts authorizing its issue; the amount for which it is issued; a description of the land for which it is issued; the name of the contractor to whom it is issued; the rate of interest and when it begins to bear interest and shall state that it is especially against the land therein described and give the time that the lien continues.

The tax bill in question complies with the provisions of said section. There is no requirement that the tax bill shall state separately the cost of grading, the cost of curbing and the cost of paving, or that a separate tax bill shall be issued for the cost of each of these forms of improvement. It shall be presumed that the report of the engineer as approved by the council, in computing the cost to be charged against the several lots, took into consideration the fact that certain lots were corner lots. The recital in the tax bill that the cost was apportioned, as provided by statute, is sufficient, especially where, as here, there is no claim as a matter of fact, that the apportionment actually did not take into consideration the foregoing requirements as to the making of curbing and its extension at corner lots. The initial resolution published by the council expressly declared that the apportionment of cost should be after the manner indicated.

Section 2 of that resolution is as follows: "The current revenue fund being insufficient to defray the expense of bringing said street to the established grade between said points, and cost thereof, together with the cost of constructing the other improvements herein provided for, will be charged against the lots or tracts of land fronting or abutting on said street along the distance improved in proportion to the number of fronting or abutting feet; except that the corner lots will be charged with the cost of extending the curbing to the curb lines of intersecting street and of extending and curving the curbing back to the street line at intersecting streets and alleys; said cost to be paid in special tax bills levied, assessed and issued againt the abutting property and delivered to the contractor for the work in accordance to law." The ordinances passed subsequently, by express reference to the resolution, carried forward its terms.

In Lexington ex rel. v. Commercial Bank, 130 Mo. App. 687, the validity of the tax bill was assailed on the ground that it constituted a lumping charge which included pay for grading and also for paving. It was held that the inclusion in one assessment of the cost of grading and paving was proper. That decision was founded upon Section 5858, Laws 1901, page 65, which became Section 9254, Revised Statutes 1909. The said section closed as follows: "eleventh, the city council may, by ordinance, include in the special assessment the paving, macadamizing or constructing sidewalks on any street, avenue or alley, the cost of bringing to the established grade said street, avenue or alley or part thereof proposed to be improved; Provided, that the resolution declaring said paving and macadamizing necessary to be done shall also declare that said street, avenue or alley, or part thereof, shall be brought to the established grade, and that the cost thereof shall be included in the special assessment for paying for said paving or macadamizing."

Recurring now to Section 8323, Revised Statutes 1919, the law under which the council proceeded, we find the following provision; "Any of said street improvements may be paid for by such city out of the general revenue funds, if the council so desires, but all such improvements shall be paid for with special tax bills, unless the proceedings of the city for same specify that such payment will be made out of the general revenue funds."

Sections 1 and 2 of the resolution published by the council and which we set out, appear to have been drawn with the statutory provisions of Section 8323 in view. Thereby, property owners were notified that the street was to be brought to the established grade; that the work of grading, paving and curbing was to be treated as one improvement; that tax bills were to be issued against the property for the payment of the cost of the improvement, and that costs were to be charged against corner lots and tax bills issued against them, in accordance with the provisions of the section mentioned.

It is also urged that the tax bill sued on is void on the ground that the resolution published by the council and the ordinances passed and the proceedings had, failed to apprise the property owners of the grade to be established for the street improvement, and McGuire v. Wilson, 187 S.W. (Mo. App.) 612, is cited. Section 1 of the resolution does that.

Section 1 of the initial resolution which was published is as follows: "That the council deems and hereby declares it necessary to grade, pave and improve Ward Avenue from the northeast property line of Seventh Street to the corporate limits at the Braggadocio Road by bringing the roadway of the same to the established grade and subgrade and by constructing concrete curbs and gutters combined, to set out beyond the sidewalks; and by paving the roadway from gutter to gutter between said points with Tarvia "X" filled macadam pavement laid on a concrete base except at street and alley intersections where the paving and improvement shall extend from property line to property line; all in accordance with plans and specifications therefor prepared by the city engineer, adopted and approved by the council and now on file with the city clerk for the inspection of the public."

The roadway was to be brought to the "established grade, and subgrade," according to the approved plans and specifications, on file with the city clerk.

III. The finding that a qualified majority had not protested was made by a resolution adopted at the meeting on July 24th. Ordinance 275, passed on the same day, was the ordinance establishing the grade in accordance with the plans and profiles made and filed by the city engineer. By Ordinance 277, also passed on that day, the council found and declared, inProtest. the terms of the statute, that a majority had not protested; and that ordinance directed the estimates to be made of costs of grading, paving, surfacing, curbs and gutters. Ordinance No. 278, also passed at the same time, was the ordinance to grade and pave, to adopt plans to provide for letting the contract, and provide that payment should be made by the issuance of tax bills. This ordinance is not set out in full in the abstract, but there is the statement in the record that no point was made on the sufficiency of said ordinance as to the points covered thereby, if the city had complied with the law so as to give it the power to make such contract. On this account, and also from what has been said of the nature of the proceedings as shown by these ordinances, they cannot be held insufficient under the point here raised. The resolution and ordinances by recital and character formed a definite and connected plan.

IV. It is urged that the resolution was defective because it did not show the amount of excavating necessary to be done, so that the property owners could intelligently understand the nature of the work proposed, and under this contention, Delmar Investment Co. v. Lewis, 271 Mo. 317, is cited. WeNecessary have set out the first section of the resolution.Excavation. The decision in the Lewis case sets out the resolution there condemned. It had reference to a statute governing cities of the fourth class. The resolution here is not subject to the defects there pointed out. The requirements of the statute upon this subject governing cities of the third class after the amendments made in 1901, are pointed out in Lexington ex rel. v. Commercial Bank, 130 Mo. App. 687. We rule the point against defendant.

V. The defendant put in evidence the resolution and proof of its publication; the record and certain files of the council; the various ordinances; the fact that no notice was given to the remonstrators of the special meeting held on July 24th; the protests of property owners, and the withdrawals filedProtests. on the 23d of July; testimony as to the residence or non-residence of owners of property affected by the improvements, or who signed the protests, and other circumstances; and also testimony concerning the condition of the street after the completion and acceptance of the work by the city.

The evidence in the record conclusively shows, and it is not disputed here, that if the withdrawals of the property owners, filed on July 23d, were permissible, then there was not left a majority protesting against the improvement. Upon the hearing on appeal, counsel for plaintiff took leave to amend their statement of facts and did amend it, making therein the contention that regardless of the validity of the withdrawals there was less than a majority protesting, and to that contention counsel for defendant have filed a reply which is an admission that out of fifty-eight resident owners, there were twenty-three remonstrators, leaving thirty-five not protesting, if those withdrawing be taken into account, but otherwise, maintaining that upon the evidence in the record there was a majority protesting.

Certain of the instructions given for plaintiff covering the question of the council's right to proceed may be here summarized. The court instructed the jury that the law under which the council proceeded was valid and constitutional; that the finding of the city council that a majority of the resident property owners owning a majority of the front footage did not remonstrate, was conclusive; that the withdrawals were duly filed within the time required by law, and the resident owners signing them should be counted as being in favor of the improvement; that the resolutions, ordinances and minutes of the council were duly passed, and that there was no evidence of fraud on the part of the council in their making; that the council was not required to give notice to the property owners of its meeting held on July 24th, and said meeting was lawfully held and the council had authority thereat to pass on the matters before it respecting the street paving in question; that the resolution was not insufficient in that it failed to apprise the property owners of the amount of grading to be done, or otherwise; and that its publication in the Twice-a-Week Democrat met all the requirements of the law applicable to the case.

Out of the matters foregoing arise the principal questions by counsel for defendant.

VI. At the outset there is the contention of defendant that the statute making the finding of the council conclusive is in violation of defendant's rights under the Fourteenth Amendment to the Federal Constitution, and that it is not due process of law (under any constitution) in reference to the taxingFindings of power; with the further contention that if theLegislative statute be sustainable in any aspect, it should inCouncil. its application to this case, be held as violative of the Fourteenth Amendment, for the reason that the council denied to the remonstrating property owners any opportunity to be heard upon or at the "finding" made.

Counter to this is the contention of plaintiff that the constitutional questions raised have been finally settled against defendant's contention, and cannot be relitigated here so as to confer jurisdiction upon this court.

Upon defendant's first contention counsel have cited State ex rel. v. Atkinson, 271 Mo. 28; Cook v. Hacklemann, 45 Mo. 317; Ewart v. Davis, 76 Mo. 129. In Atkinson's case the finding under consideration was one made by the Public Service Commission, an administrative body. The two others were cases involving the effect of recitals contained in deeds executed under sales of property, made in invitum. In Cook's case the sale was made under a distress warrant of the State Auditor, and in Ewart's case the deed was a tax deed and under a statute making its recitals prima-facie evidence, but, a case where no judgment was shown, and the prima-facie force of the recitals was destroyed for lack of compliance with an express requirement of the statute. But, the opinion refers to Abbott v. Lindenbower,42 Mo. 162, where it was held that the Legislature had no constitutional power to make such deeds conclusive evidence to such an extent as to cut off all inquiry as to whether steps vitally essential to the exercise of the taxing power had been taken.

The question of the validity of a provision of a city charter making a finding conclusive was before this court in Findley-Kehl Investment Co. v. O'Connor, 256 S.W. 798, under a provision of the charter of Kansas City, making the finding of the Board of Public Works conclusive upon the question whether there was a legal remonstrance against a proposed street improvement. The determination of the main question in the case turned upon the distinction between the finding made by an administrative board, and the finding made by a legislative body. It was said, at page 800: "The framers of the charter could not make the findings of the Board of Public Works conclusive and final upon the fact of there being no legal remonstrance. Such a board is not a court so as to make its findings res adjudicata. Neither is it a legislative body, so as to make its findings binding. It is a mere administrative board upon which no such power could be granted without doing violence to both State and Federal constitutions. . . . The legislative branch of a State or city government is one of the majesties of the State or municipality, but not so in case of boards of public works, or public service commissions."

Recurring to the same subject it was further said in the opinion, at page 801: "In addition to what we have said in Paragraph 1, supra, it must be said that the courts of appeals under statutes (which statutes are the charters of divers cities in the State), making the finding of the city council conclusive upon the fact of the failure to file a sufficient remonstrance, have ruled that such may be granted, but that such statute would not cover a finding upon the pure legal question as to whether or not the remonstrance was filed in time. [Rhodes v. Koch,189 Mo. App. 371, 176 S.W. 286; Hinerman v. Williams, 205 Mo. App. 371,224 S.W. 1017; City of Sedalia v. Montgomery, 109 Mo. App. l.c. 211, 88 S.W. 1014; Id., 227 Mo. l.c. 18, 127 S.W. 50; Fruin-Bambrick Construction Co. v. Geist, 37 Mo. App. 514; Hoover v. Newton, 193 S.W. (Mo. App.) l.c. 896, 897.] The Rhodes-Koch case was before this court upon certiorari; and we declined to quash the record. [State ex rel. v. Farrington, 195 S.W. l.c. 1044.]"

In the case at bar an important question is whether the withdrawal of the ten property owners was filed in time. That was not a question of fact under the record in this case, but a pure question of law, upon facts undisputed at the trial, and resting in the files and records of the council.

A city council is a legislative body. The law-making power of a municipality is not a delegation of power from a law-making body of the State in the meaning of the Constitution forbidding delegation of legislative power. The nature of this is stated in 12 Corpus Juris, 859, 860: "In general the Legislature may delegate to municipal corporations, and to proper officers of such corporations, all powers incident to municipal government, whether legislative or otherwise, without violating the rule against a delegation by the Legislature of its law-making power." [Metcalf v. City of St. Louis, 11 Mo. l.c. 105; Haeussler Investment Co. v. Bates,267 S.W. 632, 635; State ex rel. Lashly v. Becker (concurring opinion of J.T. BLAIR), 290 Mo. 633.]

In State ex rel. Kelly v. Hackmann, 275 Mo. 636, it was said in the opinion by GOODE, Special Judge, l.c. 646: "In cases where the courts have reserved the right to make an independent finding of facts when the constitutionality of a statute turned upon a question of fact, the prior finding of the Legislature was treated as prima-facie true. [N. Pac. Ry. v. N. Dakota,216 U.S. 579; Judson, Interstate Commerce (3 Ed.) p. 224.] And there is abundant authority in this State and elsewhere for holding that a finding by the Legislature of the existence of a fact upon which the right to enact a law depended, is not to be further inquired of by the courts. [Ex parte Renfrow, 112 Mo. 591; and cases cited in opinion.] So we will take it as true that an agreement was made between the State and relators under which their claim arose. We should presume, too, that the Legislature passed upon the validity of the agreement before making the appropriation in controversy. Nevertheless, that question remains judicial, the legislative decision being so far respected that the act passed to pay the claim based on the contract, will be upheld by the court, unless deemed to be a clear violation of the Constitution."

In respect to the power of the city council under the provisions of the statute (Sec. 8324, R.S. 1919) to make the finding here in issue, there are certain conditions or limitations. The resolution duly framed and adopted, and duly published, is notice to all property owners affected. Thereupon, after the lapse of ten days, the council has the power to proceed, if a majority of those qualified to do so shall not within ten days after the date of the last publication, file their protest with the city clerk. But, the right of withdrawal of such protest exists during, but not after, such period of ten days. "It was not necessary that the statute should give the right to withdraw. This right the law gives petitioners, unless prohibited by the statute." [Sedalia v. Montgomery, 227 Mo. l.c. 26.] In this case the question whether the manner and time of the publication of the resolution was a compliance with the conditions prescribed by the statute, and dependent upon that, what was the date when the ten-day period began to run, were questions of law to be determined upon undisputed facts. For the same reason, the question whether the withdrawals of the ten property owners who had theretofore signed protests were made in time, was a question of law, upon facts not in dispute, and upon a record made by the council itself.

VII. Following what has been said in the preceding paragraph, it is necessary to consider the validity of the publication of the resolution passed on July 2nd, and the question whether the date of the last publication, July 13th, was thePublication date from and after which the ten days began toin Twice-a-Week run, within which period, property owners mightPaper. file protests, or, having theretofore filed protests, might file a withdrawal. The defendant urges that the publication was invalid, and that in any event the time within which withdrawals from the protest could be made, could not be extended, or computed to be within the period of ten days after July 13th, the date of the last of the four consecutive insertions in the twice-a-week newspaper. It is argued that if the publication had been in a weekly newspaper and the first insertion had been on July 3d, the next and last would have been on July 10th, and the ten-day period would be computed from that date. Section 3 of the resolution required its publication in four consecutive issues of the twice-a-week paper.

The provision of the statute then in force (Sec. 8324, R.S. 1919) is, that the resolution is 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 further provision as to the protest is that if the requisite majority of the property owners "shall not within ten days after the date of the last publication file" their protest, the council shall have power to proceed.

Counsel for defendant have cited Russell v. Croy, 164 Mo. 69, and numerous cases from other jurisdictions upon the meaning of the words "weekly newspaper;" and cases in this, and other jurisdictions holding that the law regulating constructive service as a means of acquiring jurisdiction, is to be strictly complied with. [Webb v. Strobach, 143 Mo. App. 459; Stanton v. Thompson, 234 Mo. 7; Otis v. Epperson, 88 Mo. l.c. 134; Chilton v. Hedges, 204 S.W. 900.] And also urge that where a notice is given by publication, and the statute prescribes the way it shall be given, a substitute which may seem just as good will not suffice, citing under this, State v. Dobbins, 116 Mo. App. 29; Williams v. Ettenson, 178 Mo. App. 178; Russell v. Croy,164 Mo. 69.

This statute, and the sufficiency of a publication in the same newspaper, and insertion therein upon the identical dates herein involved, were considered by the Springfield Court of Appeals in Hinerman v. Williams, 205 Mo. App. 364. After a discussion of the statute and of numerous cases, none of which, it was said, ruled directly on the point involved, it was held that the publication was a compliance with the statute. It must be said that the ruling there goes as far as is permissible in such cases. The question of whether certain withdrawals from the protest came too late appears to have been raised in that case; but, the question whether the statutory period of ten days "after the date of the last publication" could begin on July 13th, or, more than one week after the date of the first publication, as it would be if the publication were in a weekly paper by two consecutive insertions, is not specifically mentioned as being ruled upon. The date of the filing of the withdrawals which were claimed to have come too late, is not stated in the opinion. But, we think the ruling cannot be construed otherwise than as holding that the date of the last publication in the meaning of the statute was July 13th. In that case it was said that the whole field of fact was gone over in the trial court. In this case also the facts as to ownership of property, and whether the owners were residents or non-residents, was gone into. It was held that under the record and under the statute, the finding of the council was conclusive. Adopting as we do the conclusion there reached that the publication was a compliance with the statute, we hold that the withdrawals were filed in time, and under that view and upon the facts, the finding of the council that there was not a majority remonstrance, is conclusive.

VIII. It is urged that the tax bill should be held void because the property owners were given no opportunity to be heard; that the finding was made at a special, or called meeting ofSpecial the council, and no notice thereof was given to theMeeting. property owners.

The statute makes no provision fixing the time of regular meetings of the council of cities of the third class. Under the general ordinances of the city the regular meeting time was on the first Monday evening of each month, and the general ordinance provided for special meetings upon call by the mayor or by two members of the council. The record of the council showed seven of the eight members of the council present at the special meeting, held on the morning of July 24, and called by the mayor. The purpose of the meeting was set forth in the record of the council, and recited that it was held pursuant to the call of the mayor. The record made on the minutes did not copy therein the call and notice given to the members, but there was introduced in evidence on the trial the call and notice served by the city marshal upon the only member who was not present at the meeting. It must be presumed that the seven members who were present, were so, pursuant to the call mentioned, and for the purpose set forth in the record made by them.

The statute, as has been said already, makes no provision regulating the time of council meetings, either regular or special, but that special meetings may be held cannot be questioned. There is no provision prohibiting such, and by implication the right exists. [Sec. 8227, R.S. 1919; Dillon on Municipal Corporations (5 Ed.) sec. 533; Savings Bank v. Ridge,183 Mo. 506.] "Unless otherwise provided by a charter or statute the action of the council, with regard to an improvement, may be taken at a special, as well as at a general, meeting." [28 Cyc. p. 994; also 28 Cyc. pp. 327, 329.]

Somewhat germane to the foregoing, the defendant urges that the council, in called session, acted in defiance of Section 8384, in reading the ordinance three times and passing it at that meeting. That section is a part of Article 5, of the Chapter on Municipal Corporations, concerning cities adopting the alternative form of government, and requires ordinances for street improvements and certain other purposes after reaching their completed form for passage shall remain on file for inspection for at least one week before final passage. No such provision is found in the statute governing ordinary cities of the third class. The only limitation in Article 4, governing cities of the third class, upon the subject, is Section 8287. The pertinent provision there found is: "No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the council shall vote therefor, and the ayes and nays shall be entered on the journal; and all bills shall be read three times before their passage." Under the ruling in Water Co. v. Aurora, 129 Mo. 540, and the authorities there cited, and in consideration of there being no provision in the charter of a city of the third class forbidding or regulating special meetings of the council, or, otherwise than as in Section 8284, prescribing the conditions to be complied with in passing ordinances, it must be held that there was no authority forbidding the council passing the ordinances at the special meeting. It is not contended that the record fails to show the bill was read the first, second and third time, nor, that a majority of the members of the council did not vote therefor, nor that the ayes and nays were not entered upon the journal. The record showed compliance with those requirements. There being no statute forbidding the passage of the ordinance at a special meeting, the right to do so existed.

IX. It is urged that the right of the property owners to be heard was denied. There is no evidence that any property owner asked for a hearing upon the question of the legal sufficiency of the protest, or upon any other question. The statute governing cities of the third class, Article 4 of Chapter 72, makesRight no requirement of that kind. The failure so to provideto be and the fact that notice was not given to property ownersHeard. of the meeting held on July 24, cannot be held to deny to them a constitutional right, in view of the holding that a statute which authorizes the council to make improvements of this character without a petition from the property owners and without granting right to protest, is not violative of the State or Federal Constitution. [Buchan v. Broadwell, 88 Mo. 31; Miners' Bank v. Clark, 252 Mo. 20; Brougham v. Kansas City, 263 F. 115; Field v. Barber Asphalt Co., 194 U.S. 618.]

Nor is what was said in Gist v. Construction Company,224 Mo. 369, cited by defendant, in conflict with what we have said. What was there said had reference to an improvement initiated by the Board of Public Works of the City of St. Joseph under a charter provision requiring notice and a hearing. This is further shown by the cases there cited: Naylor v. Harrisonville, 207 Mo. l.c. 353; Springfield to use v. Weaver, 137 Mo. 650; Meier v. St. Louis, 180 Mo. l.c. 409.

It is urged that before the city can proceed with the work of improvement it must duly and legally pass ordinances, and not resolutions. This must be conceded, as to proceedings subsequent to the resolution declaring the improvement necessary. In this case all steps following the preliminary resolution were taken under ordinances, passed by the council, and not by resolutions.

X. The defendant urges that Instruction No. 2A given for plaintiff was erroneous. This was the instruction which told the jury, that, upon the issue whether a majority of the resident property owners owning a majority of the front footage had remonstrated, the finding of the council that such majority did not remonstrate, was conclusive, and upon thatInstruction: issue the finding of the jury must be forFinding of plaintiff. It is contended that there was at leastCouncil. a question of fact relative to the remonstrances filed, to be determined by the jury, under proper instructions. But, under defendant's evidence and upon the whole record, it is clear, that, if the withdrawals were filed in time, there was not a sufficient remonstrance. It is not contended here that there was a remonstrance by a majority, except by disregarding the withdrawals. There is discussion here under the amended statement of facts made by counsel for plaintiff, and in the reply brief of defendant, upon the question whether, if the withdrawals be left out of account, there was a majority protesting; but, we have held that the withdrawals were properly taken into consideration by the council in making the finding. That being so, and there being no room for doubt under the evidence that there was not then left a majority protesting, the instruction did no more than to declare that the council in taking into account the withdrawals did not err as a matter of law, and to give conclusive force to their finding of fact.

XI. The defendant assigns error upon the ground that the court refused to permit defendant to show the existence of defects in the paving soon after the street was open to the public. We think the point is not well taken. The court excluded the testimony of the witness Kirkpatrick, a farmer living three or fourDefects. miles out of the city, who testified he had been over the street numerous times after it was open, upon plaintiff's objection that the answer did not allege any particular defect or insufficiency in the street, and also that the question was not aimed at the time of the completion of the work. But, immediately afterward, the court changed his ruling and permitted defendant to show by several witnesses what they saw as to holes, or water standing in the street. This inquiry covered a somewhat indefinite period. Some of the witnesses did not undertake to say how soon it was after the completion of the street; others thought it was six or eight months. At any rate defendant was given the benefit of the testimony of this character, which was somewhat indefinite, as to the time the observations were made, and the character of the defects.

C.S. Reynolds, a civil engineer, was permitted to testify, over plaintiff's objection, that at a time about three years after the completion of the improvement he found that the level of the pavement was in some places two-tenths of a foot lower and in other places one-tenth of a foot higher than the level or grade fixed by the profile in the office of the city clerk. We conclude that upon this and the other questions raised, no reversible error was committed against the defendant.

XII. Plaintiff has also assigned certain errors. Complaint is made of the court's refusal to give plaintiff's Instruction A, which was a peremptory instruction to find forPeremptory plaintiff in the sum of $457.59, the sum named inInstruction. tax bill, with interest. We find in the record no evidence tending in a direct way to show that the materials used in the improvement were not in accordance with the specifications. There is some evidence of holes or irregularities in the surface of the street, but mainly at a time some months after it was in use. There was also testimony that it was the most used street in the city, and that there was much heavy traffic over it of trucks and other vehicles. We have reached the conclusion that the trial court did not err in refusing the peremptory instruction.

XIII. Another error assigned, and the one most urged here by plaintiff, is the giving of Instruction 9B for defendant. The instruction told the jury that should they "find for plaintiff on the other instructions, then it was claimed on the part of the defendant that the work of paving was not done according to contract and was put down in such unskillful manner and out of such poor materials, and such negligent and unworkmanlike manner as to make it practically worthless and of no real benefits;" and the court instructed the jury in that connection that if they should find "from the evidence that said work was not done in substantial compliance with the contract," and should find for the plaintiff they "should only allow such sum as all the evidence showed to be reasonable value of the work done in the manner in which it was performed."

Plaintiff's objection is that the instruction furnishes the jury no sufficient guide.

Plaintiff's Instruction 1A, after instructing the jury as to the prima-facie force of the tax bill as evidence, further instructed the jury that before they were warranted in finding for defendant on the ground that the work was not done according to the plans, specifications and the contract, they must find from the greater weight of the evidence that there was a substantial variation from the contract, plans and specifications for said work, and unless they so found their verdict should be for the plaintiff. Counsel for plaintiff contend that defendant's said Instruction 9B left the jury at liberty to find against plaintiff, and reduce the tax bill as for breach of the contract, if this contract was not complied with in any particular, whether the same was pleaded or not, or upon some ground about which there was no evidence. Upon the effect and relation of these two instructions, that defendant's Instruction 9B was error for the reason above indicated, and that plaintiff's Instruction A1 did not make the error common to both sides, counsel for plaintiff have cited the ruling of the Kansas City Court of Appeals in City of Weston v. Chastain, 234 S.W. l.c. 352. The instruction given for the defendant and condemned in that case was one telling the jury their verdict should be for the defendant if they found from the evidence that the work was "not done substantially according to the terms of the contract, plans, and specifications."

It was there said: "The effect of it was to refer the jury, without guidance or direction, to the plans and specifications, and have them construe the same and determine whether the contract was complied with, which, under such situation, would be a legal conclusion." Here the instruction of which plaintiff complains does not contain an authorization, or condition upon which the jury should find for defendant, but submits the hypothesis that if the jury find that the work was not done in substantial compliance with the contract, and should find for plaintiff, they should allow only for the reasonable value of the work done in the manner it was done. There was no testimony given or offered which gave the jury any estimate or guide as to the reasonable value of what was done, or, as to deviation from the plans and specifications other than that of the character we have referred to. The instruction referred the jury to the contract for what was to be done, without more, and referred to them the question whether what was done was a substantial compliance with the contract, as matters to be determined by them. The instruction left it to the jury to determine the terms of the contract, and also the particulars wherein there was a failure, if any, to comply with it. It was objectionable, under the ruling in city of Weston v. Chastain, supra, and the authorities there cited.

The judgment should be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. Seddon, C., concurs.