Morse v. City of Westport

• Citation: 136 Mo. 276,37 S.W. 932
• Parties: MORSE et al. v. CITY OF WESTPORT et al.
• Decision Date: 01 December 1896
• Court: United States State Supreme Court of Missouri

37 S.W. 932

136 Mo. 276

MORSE et al. v. CITY OF WESTPORT et al.

Supreme Court of Missouri.

December 1, 1896.

MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — REASONABLENESS — ENACTMENT OF ORDINANCES — EVIDENCE OF FRAUD.

1. Where a city council has unlimited power, under the charter in respect to street improvements, the mere passage of a large number of ordinances for the macadamizing of many streets, in anticipation of a proposed change of law whereby such improvements cannot be made at the expense of property owners unless on petition of a majority of such owners in front feet, etc., is not of itself any proof of fraud on the part of the council in enacting such ordinances.

2. An ordinance ordering a surface of ordinary macadam and a stone curb to be laid upon a certain street, the contemplated expense to the owners of property fronting thereon not to exceed $2.10 per front foot along the whole street, is not unreasonable.

Brace, C. J., and Macfarlane and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county; Robert E. Ball, Special Judge.

Action by C. F. Morse and others against the city of Westport and others to restrain said defendants from letting contracts, under two ordinances, for the improvement of a street. Upon the bearing on the merits the injunction was made perpetual, and defendants appeal. Reversed.

The following statement is taken from one prepared by Judge MACFARLANE during the progress of the cause in the supreme court. It sufficiently presents the principal facts on which the judgment is based; all others deemed material being mentioned in the opinion of the majority of the court:

The suit is to restrain the defendants, the city of Westport, its engineer and board of public improvements, from letting contracts under two ordinances to macadamize and curb two blocks of McGee street, from Thirty-Eighth to Fortieth streets, in said city. A temporary injunction was granted, which, after a hearing upon the merits, was made perpetual. From the judgment defendants appealed.

As ground for relief, plaintiffs, who were the owners of property on said street between Thirty-Ninth and Fortieth streets, charged that the amount of the expense of such work that would be apportioned to and charged against the property owned by them, fronting on said street, would be oppressive, and out of all just and reasonable proportion to the value of said property, and that the ordinances requiring said work were utterly unreasonable, and that the doing of said work would be of no public utility or public benefit whatever, and that the same would be a great, unreasonable, and unnecessary burden upon their property. The case was tried by the chancellor, and in a finding and opinion made on rendering judgment the main facts bearing upon the issue were stated as follows: "The ordinances provide for the curbing and macadamizing of McGee street from Thirty-Eighth to Fortieth streets. McGee street is located in the eastern part of the city, and extends from the alley, just north of Thirty-Fifth street, four blocks south of the northern city limits, south to a tract known as `Southmoreland,' and ends a short distance south of Forty-Fourth street. It is the third street east of Main street, which is the thoroughfare from Westport into Kansas City. It is one block east of Warwick Boulevard, a thoroughfare paved with asphalt from Thirty-Fifth street to some distance south of Fortieth street. Thirty-Fifth, Thirty-Sixth, Thirty-Seventh, Thirty-Eighth, and Fortieth streets, running east and west, are paved between McGee and the Boulevard or Main street. McGee is paved and curbed from Thirty-Eighth street to Thirty-Fifth street, and from Fortieth south these improvements are about to be made. From Fortieth north to Thirty-Seventh there are no buildings. From Thirty-Seventh north to the end of the street there are four residences. South of Fortieth, on McGee and on Oak street, the next street east, are some fifty or more residences. Practically the entire travel to and from that section is between Westport and Kansas City, and the most ample and convenient facilities for that purpose are afforded by way of Fortieth street and the Boulevard or Main street. Those facilities would not be appreciably increased by the improvements proposed. So far from the necessities of that travel demanding this improvement, McGee street, between the points in question, would be only casually and to a slight extent used at all. The grading which is about completed between those points will be, for aught that appears, abundantly sufficient for the present and for some time to come. All of the abutting property is vacant and unproductive, and there is little or no demand for it. It will not be enhanced in available value, if enhanced at all, to anything like the cost of the improvement. Some of it has already been abandoned by the owners by reason of assessments for improving Thirty-Eighth street, and on account of the estimated additional cost of grading McGee street. The total assessed value of all the property along the line of the proposed improvement is $7,040, while the cost of the improvement, including grading, will be over $7,600. A part of the newly-graded street has a fill of considerable depth, and the evidence shows that it would not be safe to curb and pave it within a year at least after the fill has been made." Between 50 and 60 witnesses were examined on the trial, their printed evidence making about 700 pages of the record. The evidence bearing upon the public utility of the improvement, the value of the property affected, and the benefits to the property to be charged therewith, was, as is usual, conflicting. The chancellor was familiar with the surroundings, and had the witnesses before him. He was, therefore, much better prepared to draw conclusions of fact from the evidence than we can be. In such case, when the evidence, as in this case, is so evenly balanced as to require careful weighing in order to draw correct conclusions therefrom, this court should defer to the finding of the chancellor. Johnson v. Duer, 115 Mo. 375, 21 S. W. 800. We will therefore accept and adopt the finding of the chancellor that: "So far from the necessities of that travel demanding this improvement, McGee street, between the points in question, would be only casually, and to a slight extent, used at all. All the abutting property is vacant and unproductive, and there is little or no demand for it. It will not be enhanced in available value, if enhanced at all, to anything like the cost of the improvement. The total assessed value of all the property along the line of the proposed improvement is $7,040."

C. O. Tichenor and R. J. Ingraham, for appellants. Hugh C. Ward, Wash Adams, and Karnes, Holmes & Krauthoff, for respondents.

BARCLAY, J. (after stating the facts).

The leading facts appear in the statement first prepared by our learned Brother MACFARLANE, which will be printed as an introduction to this opinion. It may, however, be properly added that the proposed street improvements were to cost $5,274, making the special tax amount to no more than $2.10 per front foot at any part of the improved street. The local municipal body had by ordinance ordered the improvements. The injunction granted in this cause in the circuit court put a stop to them. It will not be needful on this occasion for the court in banc to go into the question whether or not the judiciary may properly declare void, because unreasonable, any ordinance duly passed by the municipal body in pursuance of a definite and express legislative grant of power to impose special taxes for street improvements; for the majority of our number hold that, even conceding the propriety or reasonableness of the exercise of the taxing power by the city (for the improvement of highways therein) open to review by the courts, there would yet be no difficulty in reaching a judgment in the actual case at bar. Surely, the particular ordinance now under review is not an unreasonable exhibition of municipal power. The fact that many ordinances were enacted about the same time for improvements similar to those in issue in this case is wholly irrelevant. The learned special judge rightly excluded that fact at the trial. It may well be that the other ordinances were requested by all the property holders affected thereby. Each ordinance may be intrinsically just and necessary. Moreover, the reasonableness of each and every one of said enactments could not, we apprehend, conveniently be gone into in the present suit. Nor does it matter (so far as concerns the right to make this particular improvement) that a change in the charter was impending, so long as the municipal power to make the improvement still remained, and was regularly exercised. Acts of a city no doubt may be shown to be fraudulent by its official enactments where such proof is competent and relevant to some proper issue to be tried. But the mere passage of a large number of ordinances for street improvements in anticipation of a change of law (which would necessitate a change of procedure in regard to those improvements) is not of itself any proof of fraud on the part of these municipal authorities. The improvement proposed for McGee street was of the simplest character, — a mere surface of ordinary macadam on the roadway, and a curb or margin of stone. It would be hard to suggest a cheaper or more primitive effort to put the street into condition for use as a thoroughfare. The contemplated expense was not to exceed $2.10 per front foot along the whole street affected by the ordinance. At some points the tax was to be less than the figures named. Such an expense cannot justly be held unreasonable, unless on the theory that there should be no improvement of that part of the street at all, at the present time. To so hold would be to put a judicial veto upon the municipal powers of Westport in regard to the present...