City of Sedalia v. Montgomery

• Decision Date: 15 March 1904
• Citation: 88 S.W. 1014,109 Mo. App. 197
• Parties: CITY OF SEDALIA ex rel. GILSONITE CONST. CO. v. MONTGOMERY et al.
• Court: Missouri Court of Appeals

88 S.W. 1014

109 Mo. App. 197

CITY OF SEDALIA ex rel. GILSONITE CONST. CO. v. MONTGOMERY et al.

St. Louis Court of Appeals. Missouri.

March 15, 1904.

1. STREET IMPROVEMENTS — CITY COUNCIL— ADOPTION OF REPORT OF COMMITTEE.

A city council, authorized by Laws 1892-93, p. 92, § 110, to make a street improvement for which a special tax bill is to be issued only where a majority of resident property owners liable for the tax do not file their protest against the improvement, adopts the report of a committee that a remonstrance was insufficient by introducing and passing an ordinance for the improvement after the report was received and placed on file, though this is not in strict accord with a parliamentary code adopted by its rules for guidance of its deliberations.

2. SAME—JURISDICTION — CONCLUSIVENESS OF COUNCIL'S FINDING.

Under Laws 1892-93, p. 92, § 110, providing that if, within 10 days after publication of a resolution by a city council declaring necessary a street improvement for which a special tax is to be levied, a majority of the resident owners of the property liable for the tax shall not file their protest, the council shall have power to cause the improvements to be made, no jurisdiction to make the improvements vests in the council, except on assent of the majority of the property owners manifested by failure to dissent; and the council's finding of such assent is not conclusive.

3. SAME—WITHDRAWAL FROM PROTEST.

Under Laws 1892-93, p. 92, § 110, giving a city council jurisdiction to make street improvements for which a special tax bill is to be issued only if a majority of the resident owners of the property liable for the tax shall not, within 10 days after publication of the council's resolution that the improvement is necessary, file their protest against the improvement, signers of a protest filed may withdraw therefrom within the 10 days.

4. SAME—ACTION ON SPECIAL TAX BILL—EVIDENCE.

Under Laws 1892-93, p. 93, § 113, providing that special tax bills for a street improvement shall in an action thereon be prima facie evidence of the regularity of the proceedings, defendants, while having the burden of proof, may show the absence of material steps therein.

5. SAME—IMPEACHING PROTEST.

A protest, which, under Laws 1892-93, p. 92, § 110, if signed by a majority of property owners, deprives a city council of jurisdiction to make a street improvement, may, in an action on a special tax bill for the improvement, be impeached by evidence controverting the ownership and authority of the signers.

6. SAME—WITHDRAWAL FROM PROTEST.

One who, before the filing of a protest, under Laws 1892-93, p. 92, § 110, against the improvement of a street at the expense of property owners, files a letter withdrawing therefrom, is not to be counted as protesting.

7. SAME—PROTEST BY ADMINISTRATOR.

The administrator of a deceased owner of land is not the owner of the land, so as to be entitled, under Laws 1892-93, p. 92, § 110, to protest against the improvement of a street.

8. SAME—OFFICERS OF CORPORATION.

Officers of a corporation owning land may not, unless specially authorized by the directors, make the protest provided by Laws 1892-93, p. 92, § 110, against improvement of a street at the expense of the property owners.

Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

Action by the city of Sedalia, on the relation of the Gilsonite Construction Company, against John Montgomery, Jr., and others. Judgment for defendants. Plaintiff appeals. Reversed.

This, an action on special tax bills, 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 the Rollingsford Savings Bank, as joint defendants. The petition was subdivided into three counts upon a like number of tax bills, each count, with appropriate modification and passing by the formal statements, averring that on the 10th 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 & 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 Ordinance No. 207 July 19, 1897, providing for the pavement of the street, and 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 tax bills 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 tax bills 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 tax bills had issued, a verified suggestion and motion as amicus curiæ, 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 tax bills 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 suggestion 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 curiæ 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 nonjury trial resulted in judgment for defendants, from which this appeal followed.

The improvement was made and the tax bills were issued under sections 108, 109, and 110 of an act of the Thirty-Seventh General Assembly, repealing article 4, c. 30, Rev. St. 1889, and substituting a new article providing for the government of cities of the third class (Laws 1892-93, 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 10-day 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 41 parcels of realty appeared to be subscribed. It was admitted that one signer, Fannie Hartshorn, withdrew her name from the...