Rhodes v. Koch

• Decision Date: 22 December 1916
• Citation: 189 S.W. 641,195 Mo.App. 182
• Parties: W. S. RHODES et al., Respondents, v. E. KOCH and THE CITY OF SPRINGFIELD, Appellants
• Court: Missouri Court of Appeals

189 S.W. 641

195 Mo.App. 182

W. S. RHODES et al., Respondents, v. E. KOCH and THE CITY OF SPRINGFIELD, Appellants

Court of Appeals of Missouri, Springfield

December 22, 1916

Appeal from Greene County Circuit Court, Division Number One.--Hon Guy D. Kirby, Judge.

AFFIRMED.

Judgment affirmed.

Neville & Gorman and Pearson & Butts for appellants.

Williams & Galt for respondents.

FARRINGTON J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

This case is here on a second appeal. Our former opinion (same title) is reported in 189 Mo.App. 371, 176 S.W. 286, wherein we held that the bill for an injunction stated a cause of action; also that the proceedings before the city council by which it held that the remonstrance filed was insufficient, where based on an erroneous conclusion of law and not on a question of fact; and further, that if there was a proper remonstrance, sufficient in number of property owners and amount of front footage and filed within the time contemplated by law, the action of the council subsequent to that time with reference to these proceedings was null and void for want of jurisdiction. The cause was reversed and remanded and on re-trial the court, in the judgment now appealed from, found that a majority of the owners of property abutting the street, residing in Springfield, owning a majority of the front footage on the proposed improvement, had signed the remonstrance and granted the relief asked for in the bill.

Defendants have appealed, contending, among other things, that our former decision on the question of the right or jurisdiction of the council to proceed is erroneous. However, we have not been convinced of the soundness of their argument and adhere to the ruling heretofore made.

On the question of the sufficiency of the remonstrance in point of number of remonstrators and amount of front footage represented by such remonstrators, appellants urge several objections to the counting of certain signers as lawful remonstrators as well as to the front feet owned by the remonstrators.

It is first contended by appellants that the statute contemplates that only owners living on the street have a right to remonstrate. The statute should not be given any such restricted construction. The Supreme Court in the case of Miners' Bank v. Clark, 252 Mo. 20, 158 S.W. 597, has held that "The statute in question gives the privilege of protesting to all persons within the city and owning property abutting the street sought to be improved." We therefore hold that any resident owner in Springfield, whether residing on or off the street to be improved, owning lands abutting the street, has a right to remonstrate under the statute. [Sec. 9255, R. S. 1909, as amended, Laws 1911, p. 340.]

It is next contended that the O'Day Real E. & I. Company, the name of which appears on the remonstrance as owner of 224 feet, should not be counted, because, appellants argue, the president of this corporation did not have legal authority from the board of directors to sign. The facts are, as shown by the evidence, that all the stock of this corporation was owned by A. C. O'Day and John O'Day, except one share which, it was stated, was placed in the name of their mother in order that there should be three shareholders to comply with the incorporation statute. The evidence shows that the persons circulating the remonstrance went to John O'Day and that he wanted it signed for the corporation and sent the bearers of the remonstrance to A. C. O'Day, the president of the corporation, who signed the corporate name. It further appears, that the mother of these two brothers had stated to them, generally that the entire management of the corporation was in their hands and that whatever they concluded to do in carrying on the business was entirely satisfactory to her. And it also appears that this was the ordinary way in which these three persons conducted this corporation. The signing, under the law, was clearly the act of the corporation; and the president of such a corporation had a lawful right to sign the remonstrance. [Pasche v. South St. Joseph Town Co., 174 Mo.App. 614, 161 S.W. 322.]

It appears by the record that there were some six or seven lots owned on this street by husbands and wives as estates by the entirety. Appellants contend that as to these respective lots there could be counted but one owner; that is, that the husband could not be counted as an owner and the wife as an owner so as to make two owners of the same piece of property; in other words, that in counting the owners of land the statute above referred to the husband and wife are to be counted as but one owner and not as two owners. We disagree with appellants on this point, holding that a husband and wife owning an estate by the entirety are each owners within the contemplation of the statute under which this proceeding was brought and by which the remonstrance must be measured.

The statute requires a majority of the resident owners of lands it does not require a...