Schwabe v. Moore

• Decision Date: 01 February 1915
• Parties: JAMES W. SCHWABE, Respondent, v. W. P. MOORE et al., Defendants; W. P. MOORE, JOHN S. BICKNELL and W. E. SMITH, Appellants
• Court: Kansas Court of Appeals

172 S.W. 1157

187 Mo.App. 74

JAMES W. SCHWABE, Respondent, v. W. P. MOORE et al., Defendants; W. P. MOORE, JOHN S. BICKNELL and W. E. SMITH, Appellants

Court of Appeals of Missouri, Kansas City

February 1, 1915

Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.

Judgment reversed and cause remanded. (with directions).

W. M Dinwiddie and McBaine & Clark for appellants.

Walker & Walker for respondent.

OPINION

TRIMBLE, J.

-Respondent as a taxpayer of Columbia, brought this suit in behalf of himself and other taxpayers caring to join with him, against the mayor, city clerk, and city treasurer of Columbia, and against the city councilmen of said city, to enjoin the first three named officers from issuing and paying a warrant for $ 278.25 to Hamilton-Brown Shoe Company, duly authorized and appropriated by ordinance, as a payment upon account of the purchase price of a sewer bought by the city of Columbia from said Shoe Company, March 19, 1907; and also to enjoin all of the defendants, as such city officers, from passing any ordinances in the future authorizing warrants or appropriating money to pay for said sewer; which future ordinances, the petition alleges, the said officials are threatening to pass in order to appropriate the large sum of $ 3000 to be used in completing payment for said sewer.

The only grounds alleged in the petition as a basis for plaintiff's right to an injunction are that the passage of said ordinances and the issuance and payment of said warrants will work an irreparable injury to plaintiff and other taxpayers, and that "said sewer is a sewer constructed about the year 1907, by and at the expense of the Hamilton-Brown Shoe Company, a private corporation for its private use; that the said sewer was constructed by authority of the city council of the city of Columbia as a private sewer; that said sewer was by deed, dated March 5, 1907, dedicated to the city of Columbia by said Hamilton-Brown Shoe Company; that said sewer does not fall within any other classification of sewers made by the statutes of this State, relating to cities of the third class, and there is no authority of law for payment out of the revenue of said city of the cost of its construction:" that "the aforesaid ordinance was, and the proposed ordinance will be, passed without authority of law; that said city council had and has no authority to pass an ordinance for such purpose; that it is, and will be, an appropriation of the public revenues for private benefit contrary to law; " that "unless defendants Moore, mayor, and Bicknell, clerk, are restrained and enjoined from issuing, and said Smith, treasurer, from paying said warrant, said amount will be so paid and diverted from the public revenues."

The three first named officials, who are the appellants herein, filed a separate demurrer to the petition on the general ground that it did not state a cause of action. The other defendants demurred also. Both demurrers were overruled. All the defendants, including appellants, then answered setting up the ordinances purchasing the sewer and authorizing the issuance of the warrant and the payment of said $ 278.25. In said answer it was admitted that, unless restrained by injunction, the officers would pay said warrant to the Shoe Company.

Upon a trial of the case, the chancellor dismissed the petition as to the members of the city council, but rendered judgment making the temporary writ of injunction final as to appellants, the mayor, clerk, and treasurer, and they were perpetually enjoined from signing, issuing, and paying the warrant described in the petition or any other warrant for like purpose. These three officials have duly appealed.

The respondent has not thought it worth while to furnish us any assistance in the case by filing a statement and brief in support of his side. We do not know whether this failure to file briefs arises from respondent's belief that the correctness of the judgment is so apparent and self evident as to require no effort on his part, or whether such failure is born of a settled conviction that the judgment cannot be maintained. In either case, however, his silence adds much to our labors in dispatching the business of the court and affords him no compensation for thus standing mute.

Upon receiving a petition from the Hamilton-Brown Shoe Company for permission to lay a sewer over certain streets, the city council, on February 5, 1907, by ordinance, granted said company permission and authority to construct a private sewer with all necessary manholes, lampholes, handholes, flushtank, and other appurtenances, beginning and emptying into the manholes in the main trunk sewer at the intersection of Hickman avenue and Fifth street, thence over certain other specified streets to the center of Fay street at its intersection with Wilkes boulevard. The ordinance provided that the sewer should be constructed in accordance with plans and specifications prepared by the city engineer; that it should be of a certain diameter, and constructed of a particular kind of earthenware sewer pipe; and that the Shoe Company should keep said sewer in good order and restore the streets along its route to the satisfaction of the street commissioner. The last section of said ordinance reads as follows:

"Sec. 3. The city of Columbia may at its option purchase the said sewer provided said sewer is adequate for public sewer purposes.'

Shortly thereafter the Shoe Company let the contract for the construction of the sewer for $ 3300, and it was constructed in strict accordance with the requirements of the ordinance and under plans prepared by the city engineering department. The sewer was 3540 feet in length. The contract for its construction included nothing for connections to private property, but was merely for the construction of the sewer, with necessary appurtenances, from the beginning point in a public street to the sewer's termination in a public street. The Shoe Company paid for said sewer the price called for in the contract which was shown to be reasonable and just.

On March 19, 1907, the Shoe Company executed a deed conveying the sewer to the city and filed it with the city clerk to be delivered to the city. It was laid before the city council on March 19, 1907, and on that date an ordinance was passed accepting the deed. Said ordinance further recited that "in consideration of the dedication of said sewer to the city for public sewer purposes, the city of Columbia, Mo., hereby binds itself to re-imburse the said Hamilton-Brown Shoe Company for the amount expended by said Company in constructing said sewer, to-wit, the sum of $ 3278.25, said amount to be paid out of first money, which in the opinion of the city council is available for sewer purposes."

On December 2, 1913, the council passed an ordinance appropriating $ 278.25 out of the General Revenue Fund not otherwise appropriated, "to be applied as a payment on Hamilton-Brown sewer, and that a warrant be drawn upon said fund for the purpose of paying same."

As stated before, we are not furnished with a statement of respondent's views on the validity of the warrant and hence we can consider only such objections thereto as may be gleaned from a consideration of the petition, or which may occur to us in our...