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judge that a majority of the persons intended to be benefited had signed; that by granting the petition and proceeding with the work the trustees adjudicated upon the question, and determined that a majority had petitioned; and that this judgment of the trustees is conclusive upon all persons so long as it remains unreversed. It is impossible to maintain that in this matter the trustees were sitting as a court of justice, with power to conclude any one by their determination. True, they were called upon to decide for themselves whether a case had arisen in which it was proper for them to act; but they acted at their peril. They could not make the occasion by resolving that it existed. They had power to proceed if a majority petitioned, but without such a petition they had no authority whatever. They could not create a power by resolving they had it." Sharpe v. Speir, 4 Hill (N. Y.) 76. The same conclusion is given expression in Allen v. City of Portland, 35 Or. 420, 58 Pac. 509, the court therein stating: "But the question as to its [i. e., the common council's] jurisdiction to act in any given case, like courts of limited, special, and inferior jurisdiction, is always open to inquiry; and in any event its decision or determination may be attacked collaterally for want of such jurisdiction. It cannot legally assume to act until the facts exist upon which its jurisdiction depends, and no decision or determination that it has can avail in the absence of such facts. By the express charter provisions it is not to give notice, or act in the exercise of the power delegated, until the requisite petition is filed; and its judgment that it conforms to the requirements of the charter could not make it so, if it was otherwise, or give it validity in invitum. Cagwin v. Town of Hancock, 84 N. Y. 532. Notwithstanding the council is bound to exercise its judgment in determining whether a valid petition has been presented, and this it does for the purpose of ascertaining whether it is warranted in taking further action under it, yet its judgment is not conclusive unless made so by express legislation, and such is not the case under the charter. Inquiry may be made, therefore, with respect to the fact of jurisdiction, in a proceeding to enjoin the collection of an assessment purporting to have been made by and through the authority of the council." Aplin v. Fisher, 84 Mich. 128, 47 N. W. 574; Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. 98, 42 L. Ed. 444.

The sounder and better sustained view would seem that the ex parte decision of the council in such matters is but prima facie and presumptive, in absence of direct conclusive power clearly conferred by the Legislature, and if such conclusions be not merely legislative or ministerial in their character, and even if treated as of a quasi judicial nature, they are not final, and the

council record or journal is merely evidence of the action of the body, not absolute proof of the verity and correctness of the decision itself; for upon the fact respecting the remonstrance the jurisdiction or power of the council to act is made dependent. This authority of the city council is not a continuous power, subsisting, but subject to be divested by the filing of a protest containing the prescribed quota of qualified objectors, but more properly it may be defined as a right, dormant and inert, until animated by the will of the majority of the resident property owners liable to be assessed for the intended improvement, whose assent is implied from absence of majority protest; and such power by tacit assent, implied of those not affirmatively expressing their dissent by protest, is awakened to set in motion and render operative the legal machinery of the statute empowering the improvement. The language employed in the act of 1893 is appropriate for such construction. Section 110 recites: "And if a majority of the resident owners of the property liable to taxation therefor shall not within ten days thereafter file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvement to be made," etc. The Supreme Court of the United States, in explicit terms, has given weight to the proposition that under such conditions no jurisdiction exists to construct the improvements until the implied approval of a majority of the property owners is had through their failure to object. In Armstrong v. Ogden, first found reported in 12 Utah, 476, 43 Pac. 119, and on final appeal in 168 U. S. 232, 18 Sup. Ct. 98, 42 L. Ed. 444, the ruling of the court was invited upon a bill against the municipal corporation and its mayor and members of its common council to restrain the city and its officers from levying assessments upon the realty of plaintiff and others in like situation for the purpose of paving a street of the city. The act under which the tax bills were sought to be issued provided for public notice of the improvement to be advertised in manner and form defined, and proceeding embodied: "If, at or before the time so fixed, written objections to such improvements signed by the owners of one-half of the front feet abutting upon that portion of the street, avenue, or alley to be so improved be not filed with the recorder, the council shall be deemed to have acquired jurisdiction to order the making of such improvements." Judge Shiras, expressing the opinion of the court, said: "We agree with the courts below in thinking no jurisdiction vested in the city council to make an assessment or to levy a tax for such an improvement, until and unless the assent of the requisite proportion of the owners of the property to be affected had been obtained, and that the

action of the city council in finding the fact of such assent was not conclusive, as against those who duly protested. The fact of consent by the requisite number, in this case to be manifested by failure to object, is jurisdictional, and in the nature of a condition precedent to the exercise of the power." In the state of California, the statute governing public work of like character was decided to necessarily import that, if such protest had been filed, jurisdiction shall not be deemed to have been acquired. City Street Improvement Co. v. Babcock, 123 Cal. 205, 55 Pac. 762. The Supreme Court of Oregon, in Clinton v. City of Portland, 38 Pac. 407, says: "Section 27 of said article 6 authorizes the common council to improve a street, without giving notice of its intention to do so, when the owners of two-thirds of the adjacent property petition therefor, and section 3, supra, authorizes an improvement, if no remonstrance by the owners of a majority of the property adjacent thereto be filed within 10 days after the final publication of the council's notice of intention to make the improvement. The charter thus provides two methods of acquiring jurisdiction to improve a street," etc.

is not finally expressed, but until the 10 days have ended may vary, and is subject to reversal on reconsideration.

Decisions which may be of guidance, while not express authority, may be found in proceedings under the laws of the various states to secure liquor licenses, establish drainage districts, and locate county seats or public roads. In Sauntman v. Maxwell, 154 Ind. 114, 54 N. E. 397, a proceeding under a drainage act allowing 10 days after docketing of the petition for landowners to object, the remonstrance against the proposed drain was likened to a remonstrance against the granting of a liquor license, and it was therein ruled that any remonstrant had the right to withdraw within the period fixed, whether the remonstrance had been filed or not, and after the 10 days had elapsed the question for determination on the petition and remonstrance was whether or not the required number of qualified landowners were remonstrants at the expiration of such period. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313. In Ohio it has been held that resident landholders, who have subscribed a petition for road improvement, may, at any time prior to such imWhile not interpreting words identical with provement being finally ordered, withdraw those of the act under consideration, but their assent by remonstrance or have their construing language of similar purport, the names stricken from the petition. Hays v. above authorities strongly incline to the con- Jones, 27 Ohio St. 218. In Iowa, in Green clusion that the conferring or withholding v. Smith, 111 Iowa, 183, 82 N. W. 448, disof power or authority, and not the ousting tinguishing the earlier cases of Loomis v. of jurisdiction pre-existing, is involved in Bailey, 45 Iowa, 400, and Jamison v. Board the filing of the remonstrance under the pro- of Supervisors, 47 Iowa, 390, it was held visions of such statutory enactments. This that a voter, signing a statement of consent section established a time limit of 10 days to the sale of liquors under the statute, could within which objection to the improvement withdraw his consent after it is filed and might be announced, and until the expira- before it was acted on by the board of sution of such period the power of the council pervisors, upon which was imposed the duty did not become fixed or defined, and no of a public canvass of such statement after sufficient reason has been assigned why a 10 days' notice had been given of such inparty in interest, who in the first instance tended canvass. In other states the same joined the protestants by attaching his name principle has obtained recognition and has to the remonstrance thereafter for reasons been applied. State v. Nemaha County, 10 satisfactory to himself, might not recede Neb. 32, 4 N. W. 373; State ex rel. v. Geib from such position and ratify or assent to (Minn.) 68 N. W. 1081; Perkins v. Henderthe proposed work. It would seem but log- son, 68 Miss. 631, 9 South. 897. The folical and reasonable to permit qualified names lowing apt language justifies its citation: to be subscribed to the remonstrance, until "A remonstrance is defined to be a petition it was matured for action by the council, to a court or deliberative body, in which and it is difficult to perceive why right of those who have signed it request that somemore positive change of purpose should not thing which it is in contemplation to perbe permitted a signer of the protest within form shall not be done. There would seem the period appointed. No direct authority, to be nothing irrevocable in the signing of a other than hereinbefore alluded to, has been petition. We conclude that when the petiproduced upon this branch of the contro- tioners signed and presented to the council versy, but judicial rulings under analogous the remonstrance, protesting against that for conditions are not lacking. The practical an- which they have petitioned, and withdrawswer to the possible difficulties ensuing from ing their names from the petition, it stood, the various situations so easily conceivable so far as they were concerned, as though they under such construction is that to all parties, had never signed it. Was the remonstrance whether favorable or hostile to the contem- in time to counteract the effect of the petiplated improvements, notice is imputed that tion? We think it was. The petition had until the expiration of the statutory interval been presented to the council, and it had the intention of the qualified property owners been referred to a committee of the council

when the remonstrance was filed. No other steps had been taken by the council until the petitioners had withdrawn their names from the petition. In our opinion there had not been, at that time, any binding and conclusive action of the council upon the petition. No right had accrued in favor of any one or which could be enforced by any one." Noble v. Vincennes, 42 Ind. 125. Also the following discussion of the question taken from People v. Sawyer, 52 N. Y. 296: "The question in the present case is, can a petitioner, after signing a petition and becoming an applicant by its presentation to the judge, thereafter and before the testimony is closed withdraw as an applicant and have his name and taxable property excluded from the computation of the applicants? It is said that he cannot, for the reason *** that signing the petition is equivalent to casting a ballot in the affirmative, and that a signer is concluded by signing, the same as a voter at an election, by actually handing and having his ballot deposited in the box. I am unable to see any analogy in the cases. No one has any interest in the petition except the signers. * It is further urged that a taxpayer, by signing the petition, is estopped by the relation thus entered into with the other signers, from thereafter withdrawing therefrom.

*

*

The signer of the petition acquired no right and conferred none upon any other thereby. It is also stated that to permit him to withdraw would be a fraud upon the other signers. But * all the right that any one has is to have his own name counted and his taxable property computed by the judge in determining the case. It is argued that the right given to appear upon the hearing and request to unite in the petition, while the statute makes no provision for the withdrawal therefrom by those who have signed, shows that the Legislature did not intend that the latter should have any such right.

It

was not necessary that the statute should give the right to withdraw. This right the law gives petitioners, unless prohibited by the statute. It is said that the others may have been induced to incur expense upon the faith of his signature in the further prosecution of the proceeding. The answer to that is that, if any of them have incurred expense, it was on their own account and in furtherance of their own purposes. Signing the petition conferred no right upon another to expend money on the faith of the signature. No such inference can fairly be made. A signer cannot be estopped from withdrawing upon the ground that he had induced another to act upon the faith of his signature, who will be prejudiced thereby. Besides, signing the petition is only a representation that he is then in favor. * It is not a promise that he will not exercise his right to withdraw in case he changes his

mind upon further information. The allowance of the right to withdraw will tend to prevent fraud in procuring signatures, as signatures so procured will be almost certain to become useless by the exercise of the right by the person induced to sign."

Appealing again to the provisions of the statute under which the bills were issued, section 113 declares: "Such special tax bills shall in any action thereon be prima facie evidence of the regularity of the proceeding for such special assessments, of the validity of the bill, of the doing of the work and furnishing of the materials charged for, and of the liability of the property to the charge stated in the bills." Upon the introduction of the bills in evidence, they constituted presumptive proof of all essentials to recovery, and the burden devolved upon defendant to establish the omission of some material step or disprove some substantial element in the proceedings.

From the foregoing premises, we derive the conclusions: That the journal of the council kept by the clerk in obedience to the statute (Rev. St. 1899, §§ 5772–5774), inclusive of the report of its committee, was competent proof of the proceedings of the council, but did not prohibit disproof of, or inquiry into, the existence of the facts prerequisite to exercise of the power to cause the improvement to be made, and the validity of the protest was subject to impeachment by evidence controverting the ownership and authority of the subscribers thereto. That the name of the subscriber to the remonstrance, who had filed her letter of withdrawal before the protest was filed, should have been excluded from computation among the remonstrants. That the signature of the administrator, the mere personal representative of his intestate, was not the owner of realty of the estate within the statute, and could not bind the heirs, the true owners of the realty liable to the charge, and he acted without authority and beyond his powers in so attempting by signing. Mulligan v. Smith, 59 Cal. 206; Rector v. Board, 50 Ark. 116, 6 S. W. 519; Batty v. City of Hastings, 63 Neb. 26, 88 N. W. 139. The conveyance in the firm name vested sole title only in the party named, and he alone should have been counted as a single remonstrant. Reinhard v. Lead, etc., Co., 107 Mo. 616, 18 S. W. 17, 28 Am. St. Rep. 441. The officers of the corporate landowners, unless specially authorized by the board of directors, were without power to bind the corporations by their signatures. Morse v. City of Omaha (Neb.) 93 N. W. 734. That remonstrants had right of withdrawing their signatures until the expiration of the period prescribed; and from the record as introduced by defendant less than a majority of legally qualified remonstrants remained subscribers of the protest at the expiration of the time limit. The council, therefore, had the power

to proceed with the improvement, the issue of tax bills in payment therefor was valid, and the judgment of the circuit court of Franklin county should be reversed.

As these conclusions are at war with the opinion of the Kansas City Court of Appeals, expressed in Knopfi v. Roofing, etc., Co., 92 Mo. App. 279, and City of Sedalia ex rel. v. Scott, 104 Mo. App. 595, 78 S. W. 276, the cause must be certified to the Supreme Court, which is accordingly ordered.

BLAND, P. J., and GOODE, J., concur.

LLEWELLYN v. SPANGLER. (St. Louis Court of Appeals. Missouri. 10, 1905.)

Jan.

Mo

1. APPEAL PRESERVATION OF ERRORS TION FOR NEW TRIAL. Instructions, not assigned as grounds for new trial in the motion therefor, are not reviewable on appeal.

2. CLERKS OF COURT-LIABILITY TO LITIGANTS -NEGLIGENCE OF SUCCESSOR.

Under Rev. St. 1899, § 825, providing that, when an order is made for change of venue, the clerk shall immediately make out a full transcript of the record and transmit the same to the clerk of the court to which the removal is ordered, and for failure to do so. shall forfeit $100 to the party aggrieved, a clerk who, on retiring from office, delivers to his successor the papers in a suit in which a change of venue has been ordered, is not responsible for the negligence of his successor in failing to transmit the papers to the clerk of the court to which the cause has been removed in time to have the same docketed for the next term of such court.

3. SAME CHANGE OF VENUE-TRANSMISSION OF RECORD-CONSTRUCTION OF STATUTE.

Under Rev. St. 1899, § 825, providing that, when an order for change of venue has been made, the clerk shall "immediately" make out a transcript of the record and transmit the same to the clerk of the court to which the removal is ordered, the transcript should be made out and transmitted in such convenient time as is reasonably necessary for the performance of such duties; the purpose of the statute being to prevent unreasonable delay or negligence in the transmission of the transcript, and to secure an early opportunity for the trial of the cause in the court to which the venue has been changed.

4. SAME-FAILURE TO TRANSMIT TRANSCRIPT -EXCUSES.

Rev. St. 1899, § 825, provides that, when an order for a change of venue has been made, the clerk shall immediately make out a transcript of the record and transmit the same to the clerk of the court to which the removal is ordered, and for failure to do so shall forfeit $100 to the party aggrieved. An order for a change of venue was made in a suit, and thereafter defendant's attorney, acting in good faith, but without authority from plaintiff, requested the clerk to withhold the transmission of the transcript until a pending proposition to arbitrate should be finally settled. The clerk acceded to this request, and subsequently the proposition to arbitrate was declared off, and the clerk's term of office expired without the transcript having been transmitted. The clerk's successor had ample time to transmit the transcript to the court to which the change of venue was ordered before the ensuing term of such

court, but nevertheless failed to do so. Held, that the first clerk was justified in holding the transcript under the circumstances, and was not liable to plaintiff for having failed to immediately transmit the same.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Action by Charles T. Llewellyn against Edward P. Spangler. From a judgment for defendant, plaintiff appeals. Affirmed.

The petition, omitting caption, is as follows: "Plaintiff for cause of action states: That he was plaintiff in an action against George E. Llewellyn and others, No. 10,143, in the circuit court of Clark county, Missouri, which said action was pending and for trial at the October term of said court. That said action was instituted by plaintiff for the purpose of partitioning certain real estate belonging to the parties to the said action. That on the 10th day of November, 1902, it being the second day of said October term of the Clark county circuit court, one of the defendants in said action, George E. Llewellyn, made application for a change of venue of such action, filing his affidavit therefor, and thereupon Hon. E. R. McKee, presiding judge of said court, granted a change of venue of such action, and made an order of removal of such action to the cir cuit court of Schuyler county, Missouri. Defendant, George E. Llewellyn, having paid into the court the $10 required by law, such change was made to the circuit court of Schuyler county, Missouri, which court convened at Lancaster, in said Schuyler county, on the 4th day of May, 1903. Plaintiff states that defendant, Edward P. Spangler, was at the time the change of venue was taken in such action, and so continued to be up to January 1, 1903, the circuit clerk of Clark county, Missouri, and that he failed, neglected, and refused to make out a full and complete transcript of the record and proceedings in such cause and transmit them, together with the original papers in the cause, to the clerk of the circuit court of Schuyler county, Missouri, as required by such order of removal and by section 825 of the Revised Statutes of Missouri, 1899. Wherefore this plaintiff says he is damaged, injured, and aggrieved by the failure, refusal, and neglect of defendant, Edward P. Spangler, to make up a full and complete transcript of the record and proceedings in the cause in which such change of venue was taken, and transmit the same, with the original papers, in order to perfect such change of venue, so that such case would have been for trial at the May term of the circuit court of Schuyler county, 1903, and respectfully asks judgment against defendant for the statutory penalty of $100, with costs of suit."

Omitting caption, the answer is as follows: "Now comes the defendant, and for his answer and defense to the petition of plaintiff denies each and every allegation in

said petition contained, except those hereinafter specifically admitted. Defendant, further answering, admits that at the October term, 1902, of this court, and on the 10th day of November, 1902, as stated in said petition, a change of venue was granted by said court of the suit described in said petition to the circuit court of Schuyler county, Missouri, on the application of one George Llewellyn, one of the defendants therein, and that the first term of said court thereafter convened on the 4th day of May, 1903, and also admits that defendant was the clerk of the circuit court of Clark county, as stated in the petition, that his said term expired on the 1st day of January, 1903, and that he did not, while such clerk, transmit to the circuit clerk of said Schuyler county the transcript and original papers of said cause. But defendant says that, immediately upon the entry of said order of change of venue upon the records of said court, he made out a full transcript of the proceedings in said cause before said court, and prepared the same, together with the original papers in said cause, for immediate transmission to the clerk of said Schuyler county circuit court, but that such transmission was withheld by the orders and directions of the attorneys of record in said cause, upon their assurance and representation that a compromise of said suit was then pending, and that the matters involved in said suit would all be settled and adjusted between said parties long before the said May term, 1903, of said Schuyler county circuit court, and that the making of additional costs and expense therein was unnecessary; that defendant's term as clerk of said Clark county circuit court ended on the 31st day of December, 1902, and he was succeeded in said office by F. M. Harr, the present incumbent, to whom said transcript and original papers in said cause were delivered by defendant on the 1st day of January, 1903, nearly four months prior to the time when the said transcript and pa pers could have been filed with the clerk of said circuit court of Schuyler county, in time for the said May term, 1903, of said court; that during the remainder of said term of defendant as such clerk no further notice or instruction was given him concerning said cause by said parties, or either of them, or their attorneys of record. Defendant states that at the time aforesaid a compromise of said cause was being considered by said parties, and that said parties did not reach a determination therein until in January, 1903, after defendant's said term of office had expired; whereas, defendant is informed and believes by mutual consent all propositions of compromise between said parties were then withdrawn. Wherefore defendant, having fully answered, prays to be dismissed, with his costs."

There was a reply denying the new matter in the answer. The issues were submit

ted to a jury, who found for defendant. Plaintiff appealed in the ordinary way.

Defendant assumed the burden of proof on the trial. It was admitted that after November, 1902, the first regular term of the Schuyler circuit court would convene on May 4, 1903. Defendant offered evidence showing that immediately after the adjournment of the November term, 1902, of the Clark circuit court, he made out a full and complete transcript of the record in the cause of Charles T. Llewellyn v. George E. Llewellyn et al., No. 10,143, and had the same, with the papers not forming a part of the record in the case, ready for transmission to the clerk of the Schuyler circuit court, when he was informed by defendants' attorney of record in the case that the parties to the suit had under consideration a proposition to submit the cause, with six or eight other pending suits between the parties, to arbitration, and that the parties did not want to incur additional costs, and for these reasons asked him as a favor to hold up the transcript until the pending proposition for arbitration should be settled one way or the other; that in compliance with this request he (defendant) did not transmit the transcript, but held the same until January 1, 1903, when he was succeeded in office by F. M. Harr, to whom he turned over the transcript and papers in the case. J. A. Whiteside, Esq., the attorney of George Llewellyn, testified that he was requested by his client to see Charles Llewellyn (plaintiff herein) and find out if he would not agree to submit the partition suit and other suits then pending to arbitration; that he saw him about the matter, but got no definite answer from him at the time, nor until about the last of December, 1902, when plaintiff said he would agree to the proposed arbitration. After having the first conversation with Charles Llewellyn about the arbitration, but before he had received a definite answer from him as to whether or not he would agree to submit to arbitration, Whiteside told the defendant of the proposition to arbitrate the case, and asked him as a favor to the parties to withhold the transcript. The evidence shows that the proposition to arbitrate was held under advisement until about January 15, 1903, when Charles Llewellyn called it off. The transcript did not reach the Schuyler circuit court until April 29, 1903, too late to appear on the following May term docket. Plaintiff's evidence shows that neither he nor any one authorized to represent him at any time requested or instructed the defendant to withhold the transcript. Plaintiff testified that the proposition to arbitrate was never submitted to him until December 29, 1902, and that he was not aware that the transcript had been withheld until April 29, 1903.

The court refused to give a peremptory instruction to find for plaintiff, asked by him at the close of defendant's evidence,

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