Brown v. Philips
| Decision Date | 05 October 1923 |
| Parties | CATHERINE A. BROWN et al. v. THOMAS PHILIPS et al., Constituting Board of Public Works of Kansas City, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Charles R. Pence, Judge.
Reversed and remanded (with directions).
John B Pew, City Counselor, and J. C. Petherbridge, Assistant City Counselor, for appellants.
(1) Kansas City, under its charter (1908), as amended, July 19 1910, has full power, by action of the Common Council, upon the recommendation of its Board of Public Works, to pave re-pave and otherwise improve its streets, and issue special tax bills against the abutting property to pay for the same in the manner proposed in this case. Clause 11, sec. 1, art. 3, Kansas City Charter 1908; Secs. 1, 3, art. 8, Kansas City Charter, as amended July 19, 1910; Skinker v. Heman, 148 Mo. 349; Farrar v. St. Louis, 80 Mo. 379; Barber Asphalt Pav. Co. v. French, 158 Mo. 547. (2) The action of the Board of Public Works, in determining to re-pave the street in the manner proposed, is final and conclusive, and is not subject to review by the courts in the absence of fraud or gross abuse of authority. Field v. Barber Asphalt Co., 194 U.S. 624; Barber Asphalt Co. v. French, 158 Mo. 534, 181 U.S. 324; Prior v. Const. Co., 170 Mo. 451; Heman v. Schulte, 166 Mo. 415; Moberly v. Hogan, 131 Mo. 23; St. Louis v. Rankin, 96 Mo. 505; Heman v. Allen, 156 Mo. 543. The suit was prematurely brought because the action of the Board of Public Works had not been confirmed by the Common Council, and the motion to dismiss for that reason should have been sustained.
Gossett, Ellis, Dietrich & Tyler for respondents.
(1) The petition states facts sufficient to constitute a cause of action. The acts of a city in respect to making special improvements must be reasonable and, if not reasonable, the courts may enjoin the city's acts on the ground that same are unreasonable and oppressive. Corrigan v. Gage, 68 Mo. 541; St. Louis v. Theatre Co., 202 Mo. 699; City of Lancaster v. Reed, 207 S.W. 868; City of Windsor v. Bast, 199 S.W. 722; Whitsett v. Carthage, 270 Mo. 285. (2) This suit was not prematurely brought. Calvert v. Bates, 44 Mo.App. 626; Maret v. Hough, 185 S.W. 544; Paving Co. v. Fleming, 251 Mo. 223; 22 Cyc. 882. (3) The action of the Board of Public Works in declaring 39th Street a business street was manifestly unfair and unreasonable and made with the evident intention of putting through the proposed asphalt re-pavement against the wishes of the property owners and unnecessary and oppressive and therefore subject to review by the court. Sec. 3, art. 8, pp. 311, 312, Kansas City Charter 1908; St. Louis v. Theatre Co., 202 Mo. 699. (4) The action of appellants in proceeding with the asphalt re-pavement at a cost of approximately seven dollars per front foot when the concrete pavement already upon said street was substantial and could be readily repaired at a cost of approximately one dollar per front foot or less, was plainly unfair, unreasonable and oppressive and subject to review by the court. Stoltman v. City of Clayton, 205 Mo.App. 583; Union Cemetery Assn. v. Kansas City, 252 Mo. 499; Chicago v. Brown, 205 Ill. 568.
This suit was brought by certain abutting property owners to enjoin the Board of Public Works of Kansas City from negotiating a contract to resurface 39th Street, from the Paseo east to Prospect Avenue, and submitting the same to the Common Council for its confirmation and approval.
In 1912 the street in question was substantially paved with concrete six inches thick, at a cost to the abutting property owners of several dollars a front foot. It was kept up under a maintenance agreement with the contractor for a period of five years, until 1917. The expense of this to the contractor was $ 500. Two years later the pavement had gotten into such disrepair that it was then thought advisable to have the street re-surfaced. But the property owners vigorously protested on account of the high cost of labor and material prevailing at that time. The Board of Public Works thereupon let a contract for repairing the street. This was done by filling the holes and depressions with asphalt, the cost of which was $ 1000. In a little more than a year there-after the pavement was again in a deplorable condition. The concrete had continued to disintegrate, crack and crumble, and in many places it was worn through to the earth. In November, 1920, the Board of Public Works passed a resolution providing for the re-paving of the street by using the concrete as a base and covering it with asphalt. A remonstrance was filed by the owners of the majority of the front feet of the lands fronting on the street, which effectually stayed the proceeding for the time being.
In this connection the procedure prescribed by the charter for effecting street improvements should be noted. All proceedings therefor must be initiated by the Board of Public Works. The first step is the passage of a resolution by the board, stating the nature of the improvement and the methods of making assessments to pay therefor. After the adoption of the resolution a day is set for a hearing with respect to the improvement and notice thereof duly published. If resident owners owning a majority of front feet of the land fronting on the proposed improvement file a remonstrance, the proceeding is stayed for at least six months. If the proceeding is not suspended by remonstrance, or determined against for other reasons, the board proceeds to adopt plans and specifications for the proposed improvement, advertises for bids, and lets the contract to the lowest and best bidder -- all subject to approval and confirmation by the Common Council, through an ordinance to be duly enacted. There is a further provision, however, which under the condition therein described eliminates the veto power of the property owners effected through a filing of a remonstrance. It is as follows:
"In case the proposed improvement consists of . . . re-paving, . . . then, in that event, upon the unanimous recommendation of the Board of Public Works, if each house of the Common Council shall, by ordinance, find and declare by a vote of two-thirds of the members-elect of each house that the street . . . on which the proposed improvement is to be made is used or occupied for business purposes, and that the improvement has been unanimously recommended by the Board of Public Works, such finding and declaration shall be final and conclusive for all purposes . . . and the improvement shall proceed regardless of any remonstrance."
On March 8, 1921, the Board of Public Works passed a resolution which recited that it unanimously found and declared that 39th Street from the Paseo to Prospect Avenue was used and occupied for business purposes and that it unanimously recommended that it be re-paved as a business street. The resolution then stated that the proposed improvement consisted of repairing where necessary and cleaning the concrete then on the street and laying thereon a binder course of bituminous concrete one and one-half inches thick and then upon that a wearing surface of sheet asphalt one and one-half inches thick, and that payment of the entire cost was to be made in special tax bills evidencing special assessments against the lots chargeable therewith according to frontage on the street. Subsequently a remonstrance purporting to be signed by the owners of ninety-three per cent of front feet of the lands fronting on the street was offered to be filed with the Board of Public Works, but the board refused to receive it. On the contrary it proceeded to perfect the plans and specifications for the improvement and to advertise for bids. Thereupon, the present proceeding was instituted.
Plaintiffs' evidence offered on the trial may be epitomized as follows:
The portion of 39th Street which it is proposed to re-pave lies in a residential portion of Kansas City and is not a business street. It is already substantially paved with a six-inch layer of concrete, eighty-five or ninety per cent of the total area of...
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