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judge that a majority of the persons in- council record or journal is merely evidence tended to be benefited had signed; that by of the action of the body, not absolute proof granting the petition and proceeding with of the verity and correctness of the decithe work the trustees adjudicated upon the sion itself; for upon the fact respecting the question, and determined that a majority remonstrance the jurisdiction or power of had petitioned; and that this judgment of the council to act is made dependent. This the trustees is cor

ive upon


authority of the city council is not a conso long as it remains unreversed. It is im- tinuous power, subsisting, but subject to be possible to maintain that in this matter the divested by the filing of a protest containtrustees were sitting as a court of justice, ing the prescribed quota of qualified obwith power to conclude any one by their jectors, but more properly it may be defined determination. True, they were called upon as a right, dormant and inert, until animatto decide for themselves whether a case had ed by the will of the majority of the resi. arisen in which it was proper for them to dent property owners liable to be assessed act; but they acted at their peril. They for the intended improvement, whose assent could not make the occasion by resolving is implied from absence of majority pro that it existed. They had power to pro- test; and such power by tacit assent, imceed is a majority petitioned, but without plied of those not affirmatively expressing such a petition they had no authority what- their dissent by protest, is awakened to set ever. They could not create a power by re- in motion and render operative the legal solving they had it.” Sharpe v. Speir, 4 machinery of the statute empowering the Hill (N. Y.) 76. The same conclusion is giv- improvement. The language employed in en expression in Allen v. City of Portland, the act of 1893 is appropriate for such con35 Or. 420, 58 Pac. 509, the court therein struction. Section 110 recites: "And if a stating: “But the question as to its (i. e., the majority of the resident owners of the common council's] jurisdiction to act in any property liable to taxation therefor shall given case, like courts of limited, special, not within ten days thereafter file with the and inferior jurisdiction, is always open to clerk of the city their protest against such inquiry; and in any event its decision or improvements, then the council shall have determination may be attacked collaterally power to cause such improvement to be for want of such jurisdiction. It cannot made," etc. The Supreme Court of the legally assume to act until the facts exist United States, in explicit terms, has given upon which its jurisdiction depends, and no weight to the proposition that under such decision or determination that it has can conditions no jurisdiction exists to construct avail in the absence of such facts. By the the improvements until the implied approval express charter provisions it is not to give of a majority of the property owners is had notice, or act in the exercise of the power through their failure to object. In Armdelegated, until the requisite petition is filed; strong v. Ogden, first found reported in 12 and its judgment that it conforms to the re- Utah, 476, 43 Pac. 119, and on final appeal quirements of the charter could not make it in 168 U. S. 232, 18 Sup. Ct. 98, 42 L. Ed. so, if it was otherwise, or give it validity 444, the ruling of the court was invited upon in invitum. Cagwin v. Town of Hancock, a bill against the municipal corporation and 84 N. Y. 532. Notwithstanding the coun- its mayor and members of its common council is bound to exercise its judgment in de- cil to restrain the city and its officers from termining whether a valid petition has been levying assessments upon the realty of plainpresented, and this it does for the purpose tiff and others in like situation for the purof ascertaining whether it is warranted in pose of paving a street of the city. The taking further action under it, yet its judg- act under which the tax bills were sought ment is not conclusive unless made so by to be issued provided for public notice of express legislation, and such is not the case the improvement to be advertised in manunder the charter. Inquiry may be made, ner and form defined, and proceeding emtherefore, with respect to the fact of juris- bodied: "If, at or before the time so fixed, diction, in a proceeding to enjoin the col- written objections to such improvements lection of an assessment purporting to have signed by the owners of one-half of the front been made by and through the authority of feet abutting upon that portion of the street, the council." Aplin v. Fisher, 84 Mich. 128, avenue, or alley to be so improved be not 47 N. W. 574; Ogden City V. Armstrong, filed with the recorder, the council shall be 168 U, S. 224, 18 Sup. Ct. 98, 42 L Ed. 444. deemed to have acquired jurisdiction to or

The sounder and better sustained view der the making of such improvements." would seem that the ex parte decision of the Judge Shiras, expressing the opinion of the council in such matters is but prima facie court, said: “We agree with the courts beand presumptive, in absence of direct con- low in thinking no jurisdiction vested in clusive power clearly conferred by the Leg- the city council to make an assessment or islature, and if such conclusions be not to levy a tax for such an improvement, until merely legislative or ministerial in their and unless the assent of the requisite procharacter, and even if treated as of a quasi portion of the owners of the property to judicial nature, they are not final, and the be affected had been obtained, and that the action of the city council in finding the fact is not finally expressed, but until the 10 days of such assent was not conclusive, as against have ended may vary, and is subject to rethose who duly protested. The fact of con- versal on reconsideration, sent by the requisite number, in this case to Decisions which may be of guidance, while be manifested by failure to object, is juris- not express authority, may be found in prodictional, and in the nature of a condition ceedings under the laws of the various states precedent to the exercise of the power.” In to secure liquor licenses, establish drainage the state of California, the statute govern- districts, and locate county seats or public ing public work of like character was de- roads. In Sauntman v. Maxwell, 154 Ind. cided to necessarily import that, if such pro- 114, 54 N. E. 397, a proceeding under a test had been filed, jurisdiction shall not be drainage act allowing 10 days after docketdeemed to have been acquired. City Street ing of the petition for landowners to object, Improvement Co. v. Babcock, 123 Cal. 205, the remonstrance against the proposed drain 55 Pac. 762. The Supreme Court of Oregon, was likened to a remonstrance against the in Clinton v. City of Portland, 38 Pac. 407, granting of a liquor license, and it was says: “Section 27 of said article 6 authorizes therein ruled that any remonstrant had the the common council to improve a street, right to withdraw within the period fixed, without giving notice of its intention to do whether the remonstrance had been filed or so, when the owners of two-thirds of the not, and after the 10 days had elapsed the adjacent property petition therefor, and sec- question for determination on the petition tion 3, supra, authorizes an improvement, and remonstrance was whether or not the if no remonstrance by the owners of a ma- required number of qualified landowners jority of the property adjacent thereto be were remonstrants at the expiration of such filed within 10 days after the final publica- period. State v. Gerhardt, 145 Ind. 439, 44 tion of the council's notice of intention to N. E. 469, 33 L. R. A. 313. In Ohio it bas make the improvement. The charter thus been held that resident landholders, who provides two methods of acquiring jurisdic- have subscribed a petition for road improvetion to improve a street," etc.

ment, 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

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when the remonstrance was filed. No other mind upon further information. The alsteps had been taken by the council until lowance of the right to withdraw will tend the petitioners had withdrawn their names to prevent fraud in procuring signatures, as from the petition. In our opinion there had signatures so procured will be almost certain not been, at that time, any binding and con- to become useless by the exercise of the .clusive action of the council upon the peti- right by the person induced to sign." tion. No right had accrued in favor of any Appealing again to the provisions of the one or which could be enforced by any one.” statute under which the bills were issued, Noble v. Vincennes, 42 Ind. 125. Also the section 113 declares: “Such special tax bills following discussion of the question taken shall in any action thereon be prima facie from People v. Sawyer, 52 N. Y. 296: “The evidence of the regularity of the proceeding question in the present case is, can a peti- for such special assessments, of the validity tioner, after signing a petition and becom- of the bill, of the doing of the work and furing an applicant by its presentation to the nishing of the materials charged for, and judge, thereafter and before the testimony of the liability of the property to the charge is closed withdraw as an applicant and stated in the bills." Upon the introduction have his name and taxable property exclud- of the bills in evidence, they constituted preed from the computation of the applicants? | sumptive proof of all essentials to recovery, It is said that he cannot, for the reason and the burden devolved upon defendant to

that signing the petition is equiva- establish the omission of some material step lent to casting a ballot in the affirmative, or disprove some substantial element in the and that a signer is concluded by signing, proceedings. the same as a voter at an election, by actual- From the foregoing premises, we derive ly handing and having his ballot deposited tbe conclusions: That the journal of the in the box. I am unable to see any analogy council kept by the clerk in obedience to the in the cases. No one has any interest in statute (Rev. St. 1899, 88 5772–5774), inclusive the petition except the signers.

of the report of its committee, was compeIt is further urged that a taxpayer, by sign- tent proof of the proceedings of the council, ing the petition, is estopped by the relation but did not prohibit disproof of, or inquiry thus entered into with the other signers, into, the existence of the facts prerequisite from thereafter withdrawing therefrom. to exercise of the power to cause the im

The signer of the petition acquired | provement to be made, and the validity of no right and conferred none upon any other the protest was subject to impeachment by thereby.

It is also stated that to evidence controverting the ownership and permit him to withdraw would be a fraud authority of the subscribers thereto. That upon the other signers. But

the name of the subscriber to the remonthe right that any one has is to have his strance, who had filed her letter of withdraw. own name counted and his taxable property al before the protest was filed, should have computed by the judge in determining the been excluded from computation among the case. It is argued that the right given to remonstrants. That the signature of the appear upon the hearing and request to administrator, the mere personal representaunite in the petition, while the statute makes tive of his intestate, was not the owner of no provision for the withdrawal therefrom realty of the estate within the statute, and by those who have signed, shows that the could not bind the heirs, the true owners of Legislature did not intend that the latter the realty liable to the charge, and he acted should have any such right.

It without authority and beyond his powers was not necessary that the statute should in so attempting by signing. Mulligan v. give the right to withdraw. This right the Smith, 59 Cal. 206; Rector v. Board, 50 Ark. law gives petitioners, unless prohibited by 116, 6 S. W. 519; Batty v. City of Hastings, the statute. It is said that the others may 63 Neb. 26, 88 N. W. 139. The conveyance have been induced to incur expense upon the in the firm name vested sole title only in the faith of his signature in the further prosecu- party named, and he alone should have been tion of the proceeding. The answer to that counted as a single remonstrant. Reinhard is that, if any of them have incurred ex- v. Lead, etc., Co., 107 Mo. 616, 18 S. W. 17, pense, it was on their own account and in 28 Am. St. Rep. 441. The officers of the furtherance of their own purposes. Sign- corporate landowners, unless specially au. ing the petition conferred no right upon an- thorized by the board of directors, were other to expend money on the faith of the without power to bind the corporations by signature. No such inference can fairly be their signatures. Morse v. City of Omaha made. A signer cannot be estopped from (Neb.) 93 N. W. 734. That remonstrants withdrawing upon the ground that he had had right of withdrawing their signatures induced another to act upon the faith of his until the expiration of the period prescribed; signature, who will be prejudiced thereby. and from the record as introduced by de. Besides, signing the petition is only a repre- fendant less than a majority of legally qualsentation that he is then in favor.

ified remonstrants remained subscribers of It is not a promise that he will not exercise the protest at the expiration of the time his right to withdraw in case he changes his limit. The council, therefore, had the power

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to proceed with the improvement, the issue court, but nevertheless failed to do so. Held, of tax bills in payment therefor was valid,

that the first clerk was justified in holding the

transcript under the circumstances, and was and the judgment of the circuit court of

not liable to plaintiff for having failed to imFranklin county should be reversed.

mediately transmit the same. As these conclusions are at war with the opinion of the Kansas City Court of Ap

Appeal from Circuit Court, Clark County; peals, expressed in Knopi v. Roofing, etc.,

E. R. McKee, Judge. Co., 92 Mo. App. 279, and City of Sedalia ex

Action by Charles T. Llewellyn against rel. v. Scott, 104 Mo. App. 595, 78 S. W. 276,

Edward P. Spangler. From a judgment for the cause must be certified to the Supreme

defendant, plaintiff appeals. Affirmed. Court, which is accordingly ordered.

The petition, omitting caption, is as fol

lows: "Plaintiff for cause of action states: BLAND, P, J., and GOODE, J., concur.

That he was plaintiff in an action against George E. Llewellyn and others, No. 10,143, in the circuit court of Clark county, Mis

souri, which said action was pending and for LLEWELLYN v. SPANGLER.

trial at the October term of said court. That (St. Louis Court of Appeals. Missouri. Jan. said action was instituted by plaintiff for 10, 1905.)

the purpose of partitioning certain real es1. APPEAL - PRESERVATION OF ERRORS - Mo.

tate belonging to the parties to the said acTION FOR NEW TRIAL.

tion. That on the 10th day of November, Instructions, not assigned as grounds for 1902, it being the second day of said Octonew trial in the motion therefor, are not re

ber term of the Clark county circuit court, viewable on appeal.

one of the defendants in said action, George 2. CLERKS OF COURT-LIABILITY TO LITIGANTS -NEGLIGENCE OF SUCCESSOR.

E. Llewellyn, made application for a change Under Rev. St. 1899, $ 825, providing that, of venue of such action, filing his affidavit when an order is made for change of venue, the therefor, and thereupon Hon. E. R. McKee, clerk sball immediately make out a full tran

presiding judge of said court, granted a script of the record and transmit the same to the clerk of the court to which the removal is change of venue of such action, and made ordered, and for failure to do so. shall forfeit an order of removal of such action to the cir: $100 to the party aggrieved, a clerk who, on

cuit court of Schuyler county, Missouri. Deretiring from office, delivers to his successor the papers in a suit in which a change of venue

fendant, George E. Llewellyn, having paid has been ordered, is not responsible for the into the court the $10 required by law, negligence of his successor in failing to trans

such change was made to the circuit court of mit the papers to the clerk of the court to

Schuyler county, Missouri, which court conwhich the cause has been removed in time to have the same docketed for the next term of

vened at Lancaster, in said Schuyler county, such court.

on the 4th day of May, 1903. Plaintiff states 3. SAME-CHANGE OF VENUE-TRANSMISSION that defendant, Edward P. Spangler, was OF RECORD-CONSTRUCTION OF STATUTE.

at the time the change of venue was taken Under Rev. St. 1899, § 825, providing that, when an order for change of venue has been

in such action, and so continued to be up to made, the clerk shall "immediately" make out a January 1, 1903, the circuit clerk of Clark transcript of the record and transmit the same county, Missouri, and that he failed, negto the clerk of the court to which the removal

lected, and refused to make out a full and is ordered, the transcript should be made out and transmitted in such convenient time as is complete transcript of the record and proreasonably necessary for the performance of ceedings in such cause and transmit them, tosuch duties; the purpose of the statute being

gether with the original papers in the cause, to prevent unreasonable delay or negligence in the transmission of the transcript, and to secure

to the clerk of the circuit court of Schuyler an early opportunity for the trial of the cause county, Missouri, as required by such order in the court to which the venue has been chan- of removal and by section 825 of the Reged.

vised Statutes of Missouri, 1899. Wherefore 4. SAME-FAILURE TO TRANSMIT TRANSCRIPT -EXCUSES.

this plaintiff says he is damaged, injured, Rev. St. 1899, § 825, provides that, when and aggrieved by the failure, refusal, and an order for a change of venue has been made, neglect of defendant, Edward P. Spangler, the clerk shall immediately make out a tran

to make up a full and complete transcript of script of the record and transmit the same to the clerk of the court to which the removal is

the record and proceedings in the cause in ordered, and for failure to do so shall forfeit which such change of venue was taken, and $100 to the party aggrieved. An order for a transmit the same, with the original papers, change of venue was made in a suit, and there

in order to perfect such change of venue, so after defendant's attorney, acting in good faith, but without authority from plaintiff, requested

that such case would have been for trial at the clerk to withhold the transmission of the the May term of the circuit court of Schuytranscript until a pending proposition to arbi

ler county, 1903, and respectfully asks judgtrate should be finally settled. The clerk acceded to this request, and subsequently the

ment against defendant for the statutory proposition to arbitrate was declared off, and penalty of $100, with costs of suit." the clerk's term of office expired without the Omitting caption, the answer is as foltranscript having been transmitted. The clerk's

lows: “Now comes the defendant, and for successor had ample time to transmit the transcript to the court to which the change of venue

his answer and defense to the petition of was ordered before the ensuing term of such plaintiff denies each and every allegation in said petition contained, except those herein- ted to a jury, who found for defendant. after specifically admitted. Defendant, fur- Plaintiff appealed in the ordinary way. ther answering, admits that at the October Defendant assumed the burden of proof on term, 1902, of this court, and on the 10th day the trial. It was admitted that after Novemof November, 1902, as stated in said peti- ber, 1902, the first regular term of the Schuytion, a change of venue was granted by said ler circuit court would convene on May 4, court of the suit described in said petition 1903. Defendant offered evidence showing to the circuit court of Schuyler county, Mis- that immediately after the adjournment of souri, on the application of one George Llew- the November term, 1902, of the Clark cirellyn, one of the defendants therein, and cuit court, he made out a full and complete that the first term of said court thereafter transcript of the record in the cause of convened on the 4th day of May, 1903, and Charles T. Llewellyn v. George E. Llewellyn also admits that defendant was the clerk et al., No. 10,143, and had the same, with of the circuit court of Clark county, as stat- the papers not forming a part of the record ed in the petition, that his said term expired in the case, ready for transmission to the on the 1st day of January, 1903, and that clerk of the Schuyler circuit court, when he he did not, while such clerk, transmit to was informed by defendants' attorney of recthe circuit clerk of said Schuyler county the ord in the case that the parties to the suit transcript and original papers of said cause. had under consideration a proposition to But defendant says that, immediately upon submit the cause, with six or eight other the entry of said order of change of venue pending suits between the parties, to arbitraupon the records of said court, he made out tion, and that the parties did not want to ina full transcript of the proceedings in said cur additional costs, and for these reasons cause before said court, and prepared the asked him as a favor to hold up the transame, together with the original papers in script until the pending proposition for arbisaid cause, for immediate transmission to tration should be settled one way or the oththe clerk of said Schuyler county circuit er; that in compliance with this request he court, but that such transmission was with- (defendant) did not transmit the transcript, held by the orders and directions of the at- but held the same until January 1, 1903, when torneys of record in said cause, upon their he was succeeded in office by F. M. Hart, to assurance and representation that a compro- whom he turned over the transcript and pamise of said suit was then pending, and that pers in the case. J. A. Whiteside, Esq., the the matters involved in said suit would all attorney of George Llewellyn, testified that be settled and adjusted between said parties he was requested by his client to see Charles long before the said May term, 1903, of said Llewellyn (plaintiff herein) and find out if Schuyler county circuit court, and that the he would not agree to submit the partition making of additional costs and expense there- suit and other suits then pending to arbitrain was unnecessary; that defendant's term as tion; that he saw him about the matter, but clerk of said Clark county circuit court end- got no definite answer from him at the time, ed on the 31st day of December, 1902, and nor until about the last of December, 1902, he was succeeded in said oflice by F. M. when plaintiff said he would agree to the Harr, the present incumbent, to whom said proposed arbitration. After having the first transcript and original papers in said cause conversation with Charles Llewellyn about were delivered by defendant on the 1st day the arbitration, but before he had received & of January, 1903, nearly four months prior definite answer from him as to whether or to the time when the said transcript and pa. not he would agree to submit to arbitration, pers could have been filed with the clerk of Whiteside told the defendant of the proposisaid circuit court of Schuyler county, in time tion to arbitrate the case, and asked him as for the said May term, 1903, of said court; a favor to the parties to withhold the tranthat during the remainder of said term of de- script. The evidence shows that the proposi. fendant as such clerk no further notice or tion to arbitrate was held under advisement instruction was given him concerning said until about January 15, 1903, when Charles cause by said parties, or either of them, or Llewellyn called it off. The transcript did their attorneys of record. Defendant states not reach the Schuyler circuit court until that at the time aforesaid a compromise of April 29, 1903, too late to appear on the folsaid cause was being considered by said par- lowing May term docket, Plaintiff's evities, and that said parties did not reach a de- dence shows that neither he nor any one autermination therein until in January, 1903, thorized to represent him at any time reafter defendant's said term of office had ex- quested or instructed the defendant to with. pired; whereas, defendant is informed and hold the transcript. Plaintiff testified that believes by mutual consent all propositions the proposition to arbitrate was never subof compromise between said parties were mitted to him until December 29, 1902, and then withdrawn. Wherefore defendant, hav. that he was not aware that the transcript ing fully answered, prays to be dismissed, had been withheld until April 29, 1903. with his costs."

The court refused to give a peremptory There was a reply denying the new mat- instruction to find for plaintiff, asked by ter in the answer. The issues were submit. him at the close of defendant's evidence.

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