Kitchen v. City of Clinton

• Citation: 8 S.W.2d 602
• Decision Date: 03 July 1928
• Docket Number: No. 28187.,No. 26836.,26836.,28187.
• Parties: GEORGIA KITCHEN, Appellant, v. CITY OF CLINTON. ROBERT BARRIE v. TINA TOLLER ET AL., Appellants.
• Court: United States State Supreme Court of Missouri

8 S.W.2d 602

GEORGIA KITCHEN, Appellant, v. CITY OF CLINTON. ROBERT BARRIE v. TINA TOLLER ET AL., Appellants.

No. 26836.

No. 28187.

Supreme Court of Missouri, Division One.

July 3, 1928.

Appeal from Henry Circuit Court. — Hon. Charles L. Henson, Special Judge.

AFFIRMED.

D.W. Peters for appellants.

(1) This court has a right to review facts going to the question as to whether or not the city ever acquired jurisdiction to make the improvement. Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 798; Ogden City v. Armstrong, 168 U.S. 235; City Trust Co. v. Crockett, 274 S.W. 807. (2) The property owned by Clinton School District should not be counted in determining the number of resident property owners upon the street. Armstrong v. Ogden City, 12 Utah 494; Board v. Volk, 72 Oh. St. 485; Elliott, Roads & Bridges (2 Ed.) par. 511, p. 522. (3) A life tenant in possession of the property, and against whom the tax bill is issued, is an owner within the meaning of the statute, and the heirs in whom the remainder interest is vested, even though they may reside in the city with the life tenant, should not be counted as owners of property for the purpose of determining the total number thereof on the street. Allen v. Portland, 35 Ore. 445. (a) "The word `owner' is not a legal term, nor of technical signification, but a word of common parlance, and is ordinarily defined as `one having dominion over a thing.'" Benjamin v. Wilson (34 Minn.), 2 A.L.R. 778; Sibbett v. Steel, 240 Mo. 94. (b) "The right to petition or remonstrate may be and frequently is confined to the `free holders' who reside upon the street or part to be improved and are therefore, particularly interested." Kirkland v. Board, 142 Ind. 123; Elliott, Roads & Bridges (2 Ed.), par. 511, p. 522. (4) Husbands and wives owning property jointly should be counted as one person, because the two of them together are but the owner of a single estate. If either one sign a remonstrance, the other should not be counted as in favor of the improvement; if both sign, it should count as one person; if neither sign, they should be counted as only one person. Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 802.

J.A. Gilbreath, C.A. Calvird, Jr. and W.E. Owen for respondents.

(1) Where a city council by ordinance makes a finding of fact that a majority of the resident owners of property abutting on a street paving project (after notice of a resolution calling for such street improvement had been duly published) had not filed a remonstrance against such improvement, such finding and determination by the city council is final and conclusive and binding on the courts. Sec. 8324, R.S. 1919; City Trust Co. v. Crockett, 309 Mo. 705; Findley-Kehl Co. v. O'Connor, 256 S.W. 798; Hinerman v. Williams, 205 Mo. App. 371; Rhodes v. Kock, 189 Mo. App. 382. Under the facts as developed at the trials of these cases a situation is developed that warranted such finding by said city council, and by the court which in all the cases held that no adequate remonstrance had been filed. (2) The cost of permanent improvements to real estate benefiting both the life estate and the remainder, and the amount of special taxes for public improvements chargeable against such real estate and likely to outlast the life estate should be apportioned between the life tenant and the remaindermen. Both are owners and both proper remonstrators against paving improvements. Orr v. Trust Company, 291 Mo. 401; Nanson v. Jacob, 93 Mo. 331; Bobb v. Wolff, 54 Mo. App. 515; Construction Co. v. Withnell. 190 Mo. App. 42. (3) Husbands and wives holding estates by the entirety in properties abutting on a street-paving project are each owners of their several properties, and on the issue as to whether a remonstrance has been signed by a majority of the resident owners of property are each to be counted, those who signed and those who did not sign as two persons, not as one. Rhodes v. City of Springfield, 195 Mo. App. 185; Holmes v. Kansas City, 209 Mo. 513; Findley-Kehl Inv. Co. v. O'Connor, 256 S.W. 802. (4) In the Kitchen case no temporary writ of injunction was applied for or issued, no bond given, hence no duty rested on the city or the contractor to defer this large work of improvement until the case could have been heard in the circuit court and appealed here and determined — a delay of nearly four years. At the hearing in the trial court the work of grading and paving Third Street had been completed, accepted by the city, tax bills issued to pay for part of the improvement, chargeable to private abutting property. It was impossible then for the court to have issued an injunction granting the prayer of the petition. Courts will not do a useless thing nor make an impossible order, and conditions at the time of the trial are properly considered in an injunction case. 16 Am. & Eng. Enc. Law, p. 431; 2 High on Injunctions, sec. 1495; Anno. Cases, 1915D, 1251 and note; 14 R.C.L. 308; Gibson v. Powell, 69 Mo. App. 685; Owen v. Ford, 49 Mo. 436.

SEDDON, C.

The above entitled and numbered causes were consolidated by order of this court, and were argued, briefed and submitted by the respective parties as a consolidated cause. Both causes involve the same facts and questions of law, and consequently the separate appeals in both causes may properly be ruled by one opinion. For brevity, we will refer to the first cause as the Kitchen case, and to the other as the Barrie case.

The Kitchen case is an action in equity, in which the plaintiff, Georgia Kitchen, an owner of real property abutting on Third Street in the city of Clinton, sought to permanently enjoin said city from letting a contract for the grading, curbing and paving of said Third Street between Wilson and Elm streets. A temporary restraining order or injunction was not asked by plaintiff or granted by the circuit court, nor was an injunction bond filed in the cause, whereupon the city proceeded to let the contract for said street improvement, and the improvement provided for by the contract was in due time completed by the contractor, accepted by the municipal officials, the several tracts of land liable for the cost of the improvement were assessed therefor, and special tax bills, evidencing such assessments, were issued by the city and delivered to the contractor. Thereafter, plaintiff amended her petition and sought to have the tax bill, evidencing the local or special assessment against her real property, declared invalid and void, and that the city, and all persons into whose hands said tax bills may fall, be enjoined from attempting to collect or enforce the same as a lien against plaintiff's real property.

The plaintiff in the Barrie case is the assignee and owner of the special tax bills issued by the city of Clinton for the grading, curbing and paving of Third Street in said city between Wilson and Elm streets, as provided by the contract aforesaid. As assignee and owner of said tax bills, plaintiff commenced seventeen separate suits in the Circuit Court of Henry County to enforce the liens and payment of certain of said tax bills against the respective owners of the real property respectively described in said tax bills. By order of the Circuit Court of Henry County, the seventeen separate suits were consolidated and tried as one consolidated cause, under the title, Robert Barrie, plaintiff, v. Tina Toller et al., defendants.

Both the Kitchen and Barrie cases were tried to the court without the aid of a jury, resulting in separate judgments against the several property owners, and in favor of Barrie, the assignee of the tax bills, and the city of Clinton. After unsuccessful motions for new trial and in arrest of judgment, the respective parties against whom such judgments were entered were allowed appeals to this court. The aggregate amount of the special tax bills involved in said consolidated causes exceeds the sum of $7500, exclusive of court costs, and we retain jurisdiction of the appeals therein for the reason that the amount in dispute, exclusive of costs, in the consolidated causes exceeds the minimum of our pecuniary jurisdiction. [Art. 6, sec. 12. Const. Mo.; Aufderheide v. Polar Wave lce & Fuel Co. (Mo. Sup., En Banc), 319 Mo. 337, 4 S.W. (2d) 776, l.c. 801.]

It is contended by appellants that the city of Clinton was ousted of jurisdiction to proceed with the improvement of Third Street in question, and to let a contract therefor, because of the filing by a majority in number, and in frontage of abutting property, of the resident property owners interested in the improvement of said Third Street between the intersecting streets aforesaid. Respondents insist that the remonstrance so filed was insufficient and ineffective in that it was not signed by a majority in number of the resident owners of property abutting on said street, and therefore that the city of Clinton was not ousted of jurisdiction to proceed with the improvement in question; and, furthermore, that the council of said city, by ordinance duly enacted by the council and approved by the mayor of said city, made the specific finding of fact that "a majority of the resident owners owning a majority of the abutting front feet of property liable to taxation for said work did not file with the city clerk any protest against said improvements." which finding and determination by the city council is final, conclusive and binding upon the courts of this State. The appellants make no other attack herein upon the form, substance or regularity of the proceedings of the city council under which the improvement in controversy was made, or respecting the manner of letting and the manner of performance of the contract for said improvement, the acceptance of said work by the municipal officials, the amounts of the several special assessments levied against the respective tracts of real property abutting upon the street improved, or the form and sufficiency of the special tax bills evidencing such...