City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery
| Decision Date | 15 March 1904 |
| Parties | CITY OF SEDALIA ex rel. GILSONITE CONSTRUCTION COMPANY, Appellant, v. MONTGOMERY, JR., et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Franklin Circuit Court.--Hon. Wm. A. Davidson, Judge.
This an action on special taxbills, part of the issue in payment for paving West Sixth street, in the city of Sedalia originated January, 1902, in the circuit court of Pettis county primarily against John Montgomery, Jr., and Rollingsford Savings Bank, as joint defendants.
The petition was subdivided into three counts upon a like number of taxbills, each count (with appropriate modification and passing by the formal statements) averring that on the tenth of February, 1898, the authorized officers as officials of the city of Sedalia, issued the bill, under the ordinance referred to against the realty described, to the Gilsonite Roofing and Paving Company, assignor of the relator describing the interests of defendants in the realty and asking judgment. The defendants entered their appearances to the action on the day it was brought, and filed a stipulation signed by them for judgment at the ensuing December term, if prior payment of the bills had not been made, and in event of payment before such December term, the case was to be dismissed. In April, 1902, by consent, the stipulation was withdrawn and defendants, by attorney, filed a joint answer admitting the usual conventional affirmations of the petition, but averred that within the period provided by law a majority of the resident owners of property on the street liable for taxation for the proposed improvement, duly filed their remonstrance against it, whereby the city council of Sedalia had no power to cause such improvement to be made that notwithstanding such protest and want of authority, the council unlawfully passed an ordinance No. 207, July 19, 1897, providing for the pavement of the street, the contract was awarded to relator and the work completed by it at the contract price and accepted by the city council, which passed an ordinance directing the issuance of special taxbills in payment and against the parcels of realty abutting on the street improved. The answer proceeded to set out the respective interests of defendants severally as owner and mortgagor and mortgagee of the realty, and terminated with apt allegations of the invalidity of the taxbills and prayer for their cancellation.
The reply of plaintiff specifically denied the remonstrance by a majority of the resident owners of property, on Sixth street liable for taxation for the improvement against such improvement and the consequent absence of power in the city council to cause the improvement, and averred that the pretended remonstrance was not signed by such majority, that many of the signers were not owners of abutting property, at the time of signing such remonstrance or when it was filed; that within the period legally fixed and before the remonstrance was filed, after the remonstrance was filed and before the expiration of the time appointed, six of the parties signing, by writing filed with the city clerk, withdrew their names and petitioned to have the street improved as provided by the resolution of the council. At the same time there were filed a stipulation for change of venue to the circuit court of Franklin county, and also by the attorney of various other owners of parcels of realty fronting on the reconstructed street, against which similar taxbills had issued, a verified suggestion and motion as amicus curiae, averring and charging that there were no adverse interests involved in such action, but the interests of the opposite parties were identical and the plaintiff and defendants had conspired to impose upon the court a pretended controversy, that the action was a fictitious proceeding in which the parties collusively sought, by medium of removal of the cause to a county within the jurisdiction of the St. Louis Court of Appeals, to obtain a decision of the latter court, overturning the decision of the Kansas City Court of Appeals, adjudging the same special taxbills invalid and thereby ultimately secure a certification of the case to the Supreme Court, wherein defendants would seek to insure judgments against themselves, thus defeating defendants in other cases affecting the validity of like bills. The motion and suggestions concluded with a prayer to have the cause stricken from the docket, or a refusal to transfer the cause to any court outside of the jurisdiction of the Kansas City Court of Appeals. The court withheld any immediate action and in the interim, W. E. Bard, Jr., by attorney, interposed for leave to become a party, as successor to interest of the defendant Montgomery; January 1903, the court overruled the motion of the amicus curiae and awarded a change of venue to the circuit court of Franklin county, where, in July, 1903, Bard was made party and entered his appearance as defendant, and on the same day Lee Montgomery, alleging he had succeeded Bard in interest in lot numbered 3, described in the petition, was admitted as defendant and with Bard, adopted the answer of the original defendants, and a non-jury trial resulted in judgment for defendants, from which this appeal followed.
The improvement was made and the taxbills were issued under sections 108, 9 and 10 of an act of the Thirty-sixth General Assembly, repealing article 4, chapter 30, Revised Statutes 1899, and substituting a new article providing for the government of cities of the third class [Laws 1892-3, p. 65] especially section 110, providing that, "When the council shall deem it necessary to pave, etc., any street within the limits of the city for which a special tax is to be levied, as herein provided the council shall, by resolution, declare such work or improvements necessary to be done, and cause such resolution to be published in some newspaper published in the city for two consecutive weeks; and if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvements to be made and to contract therefor and to levy the tax as herein provided." The publication of the resolution of the council was completed June 6, 1897, thus confining the ten days' limit within which the remonstrance should be presented to June 16th, and June 14th such instrument was filed with the city clerk, to which names of owners of forty-one parcels of realty appeared to be subscribed. It was admitted that one signer, Fannie Hartshorn, withdrew her name from the remonstrance before it was filed, and that six of those remaining had filed with the clerk the day following its filing, their written withdrawals and request for erasure of their names from the protest before its consideration by the council; at regular session June 21st, the remonstrance together with the communications of withdrawal of signers was read, referred to a special committee composed of the city counselor, the city engineer and the street and alley committee of the council, whose report signed by the city engineer and two of the three members of the street and alley committee with opinion of the city counselor attached was returned June 28th, received and placed on file; the ordinance for the reconstruction was thereupon introduced and subsequently duly passed. The report of the committee announced that the total number of resident property-owners was sixty-one, the number of signers to the remonstrance, thirty-two, deducting names withdrawn, five, left twenty-seven, counted on the remonstrance and number left in favor thirty-four, and further embodied that the names of the parties, competent to be counted for or against the paving, had been determined upon the advice of the city counselor, as shown in the letter appended; the opinion of the city counselor addressed to the city engineer in reply to the questions pertinent hereto, particularly what constituted a resident owner of property, whether a person signing a remonstrance could change the effect of his signature, so as to be counted for instead of against the pavement, when made in form of a written request signed and filed before the time for the remonstrance expired, and whether an administrator could sign a remonstrance and be counted where property of the estate fronted on the street, contained his opinion defining resident ownership, replying in the affirmative to the second inquiry and expressing the conclusion that an administrator for reasons assigned was without authority to sign in favor of or remonstrate against such improvement.
At trial plaintiff rested after tender in evidence of the special taxbills, their assignment to plaintiff being admitted, and defendants introduced the testimony following the resolution of the council to improve the street, proof that the two weeks' publication terminated June 6, 1897, the minutes of the council to the effect that a remonstrance against paving Sixth street was read, also communications from Fannie Hartshorn and other property-owners named, six in number, asking that their names be erased from the remonstrance, were read and on motion referred to the city counselor, the street and alley committee and city engineer for investigation; the remonstrance bearing names of forty-three subscribers, the report of the above-named committee, the letter or opinion of the city counselor, the letters of withdrawal from the remonstrance, one of Fanny Hartshorn and one with six signatures dated June 14th and filed June 15th; the minutes of the council of June 28, 1897, showing...
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