Collins v. Vernon

• Decision Date: 01 July 1974
• Docket Number: No. KCD,KCD
• Citation: 512 S.W.2d 470
• Parties: David COLLINS, Administrator, Estate of Thomas J. Collins, deceased, and Mrs. E. T. Collins, Appellants, v. Wallace VERNON et al., Respondents. 26056.
• Court: Missouri Court of Appeals

Page 470

512 S.W.2d 470

David COLLINS, Administrator, Estate of Thomas J. Collinsdeceased, and Mrs. E. T. Collins, Appellants, v.Wallace VERNON et al., Respondents.

No. KCD 26056.

Missouri Court of Appeals, Kansas City District.

July 1, 1974.

Hendren & Andrae, Alex Bartlett, Jefferson City, for appellants.

Norman J. Williams, Eldon, Edwards, Seigfreid, Runge & Hodge, Inc., Jerome W. Seigfreid, Mexico, for respondents.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD, WASSERSTROM and SOMERVILLE, JJ.

SWOFFORD, Judge.

This is an appeal from a judgment wherein the court below sustained defendants' motion to dismiss plaintiffs' Second Amended Petition for failure to state a cause of action.Plaintiffs did not plead further and therefore the pertinent record before us on appeal consists solely of the Second Amended Petition and the defendants' Separate Motion to Dismiss.¹

The following facts appear from the record:

The defendant, City Council of Eldon, a fourth class city, passed an ordinance which authorized the sale of approximately ten (10) acres of land, which had been used as an airport and designated as a 'park'.The defendantEldon Food Corporation bid $200,200.00 for the land at a public offering and the bid was accepted.

The plaintiffs object to the proposed sale of the land upon the grounds that such action was illegal and they filed a petition in the Circuit Court seeking an order of prohibition, an injunction against such sale, and a declaration that such sale was illegal, or in the event of such sale, an order of reconveyance of the property to the City of Eldon, or to impose a constructive trust or equitable lien upon the property.The Second Amended Petition named as defendants the City of Eldon, the Mayor, the members of the City Council, and the Eldon Food Corporation.The petition stated that the plaintiffs were residents, citizens and taxpayers of the City of Eldon, but they do not claim any title or ownership to the land involved.

The defendants moved to dismiss for the reason that the Second Amended Petition failed to state a claim upon which relief could be granted and because the Second Amended Petition was filed out of time allowed by the court to file such petition.In sustaining defendants' motion, the court did not indicate on which basis the motion was sustained.That portion of the Motion to Dismiss alleging that the Second Amended Petition was filed out of time is not before this court.Both the court below and counsel treated such Second Amended Petition as properly filed.Since neither party briefed this issue on appeal, it is not before us for our consideration.

The plaintiffs urge reversal on the following grounds: First, it was error to dismiss the petition because the plaintiffs had standing to sue.Second, the proposed sale was illegal because the property had been dedicated to airport and park purposes; the City lacked statutory authority to sell the property; such plan is illegal because the property is under the exclusive control of the Park Board of Eldon and not the City Council; and the City does not have clear title to all of the property in question.

This appeal was originally heard in Division No. 2 of this Court and an opinion adopted on February 4, 1974, affirming the judgment, without dissent.On February 11, 1974the Supreme Court handed down a decision in the case of John F. Weeks v. Missouri Pacific R.R. Co., 505 S.W.2d 33(Mo.1974) wherein the title to certain abandoned railway property in Eldon, Missouri was directly in issue and which decision it was felt might have some bearing on the case before us.Also, the apppellants had proffered as a part of their Suggestions in Support of Motion for Rehearing or in the Alternative to Transfer to the Supreme Court, the petitions and answers in pending litigation in the Circuit Court of Miller County, Missouri, together with a reproduction of a newspaper and photographs published in the 'Eldon Advertiser' on December 7, 1944.

We granted the motion for rehearing and transferred the case to the court en banc, so as to permit the parties to brief and argue their positions as to the effect of Weeks and of the above-mentioned documents proffered by appellants in their Suggestions.The case was reargued and resubmitted on May 20, 1974.In the interim, our order issued permitting the substitution of the administrator of one of the original plaintiffs, Thomas J. Collins.

We have concluded that the case of Weeks v. Missouri Pacific R.R. Co., supra, is not decisive of this case.In Weeks, the title to a portion of the abandoned railroad right of way through the City of Eldon, Missouri was directly in issue in a suit between the heirs of the original grantors who claimed part of this property by reversion and part as abutting landowners.Intervenors, were other abutting landowners.The case was tried and upon the evidence adduced the trial court found generally for the defendant and against the plaintiffs, thus denying title to plaintiffs, and sustained intervenors' claim as abutting owners.

It is obvious from the Weeks opinion that only part of the abandoned railroad right of way was there involved.Upon appeal the Supreme Court affirmed and remanded with directions to permit other abutting landowners who might claim an interest in the title to the land involved and awarded to intervenors, to, in turn, intervene to assert such claims.In so doing, the court held, in essence, that the grant of land to be used for railroad purposes was a grant of an easement and not a fee and that upon the abandonment of such right of way no right of reversion to the heirs of the grantor existed but that the then abutting landowners succeeded to the abandoned property.While these principles are sound and are applicable to the land involved in the case before us, there is nothing apparent in Weeks that the same land was in any way involved.We do not consider Weeks in any way determinative of the issues involved in this action.We are here concerned with problems of pleading, not proof.

The documents attached to and other factual matters set forth in the appellants' suggestions were not pleaded nor before the court below; are not a part of the transcript on appeal herein; and cannot be considered by us in our decision.The cases which appellants cite as authority for us to do so, are clearly distinguishable.In State v. Public Service Commission, 291 S.W.2d 95(Mo. banc 1956) it was held that judicial notice could be taken of orders of the commission in other cases involving related or interdependent problems.In the case of Sierk v. Reynolds, 484 S.W.2d 675, 682(Mo.App.1972)andHall v. Smith, 355 S.W.2d 52(Mo.1962), the doctrine of res judicata was involved and it was held that the court could take judicial notice of prior judgments affecting the application of this doctrine.This theory, of course, is the heart and sinew of res judicata.No court orders or judgments affecting the merits of the matter before us are involved, but merely pleadings in other pending litigation and newspaper material.We seek in vain for any application of such material appropriate to this case or record.

The other matter reargued and again emphasized by the plaintiffs is that the City of Eldon had no title to part of the land sought to be conveyed.This element of the case will be discussed later in this opinion.

The threshold issue in this case is whether the plaintiffs have standing to bring and maintain this action.

It is a well-recognized rule that an aggrieved taxpayer may institute a suit against a governmental unit to seek relief for an alleged illegal or improper act.This rule was first recognized in the jurisprudence of this state in Newmeyer v. Mo. & Miss. R.R. Co., 52 Mo. 81(1873).The rationale for such a rule is that a taxpayer has an 'equitable ownership' of public funds and any illegal expenditure of such funds will subject the taxpayer to a liability to '. . . replenish any deficiency resulting from the misappropriation.'Everett v. County of Clinton, 282 S.W.2d 30, 35(Mo.1955).

Since the plaintiffs made no claim of ownership of the property involved, it follows then they were required to plead with specificity such damages in their posture as taxpayers.In Fugate v. McManama, 50 Mo.App. 39(1892), two plaintiffs sought injunctive relief against the individual members of the school board to prevent them from opening a separate school.The court affirmed the judgment for the defendants'. . . for the reason that the plaintiffs failed to show the extent of their interests, which (if at all) were injuriously affected by the irregular action of the directors.' loc. cit. 42.

Such interests may be in the form of an increased tax burden on a plaintiff to replenish the public funds illegally dissipated.Hight v. City of Harrisonville, 328 Mo. 549, 41 S.W.2d 155(banc 1931).SeeSmith v. Hendricks, 136 S.W.2d 449, 454(Mo.App.1939), where a judgment for defendant was affirmed because the plaintiff failed to show special injury in the form of an increased tax burden.

However, an appellate court can look beyond the bare facts of the petition to determine if the ultimate fact of damages arises as a necessary conclusion from facts stated in the petition.Miller v. Ste. Genevieve County, 358 S.W.2d 28(Mo.1962).In Castilo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673(banc 1925), the court said, '. . . the necessary conclusion from the facts pleaded is that the burden of taxation on resident taxpaying citizens will be increased . . ..Failure to allege the ultimate fact that plaintiffs' taxes will be increased when this conclusion necessarily arises from facts sufficiently pleaded is not material.' l.c. 675 (emphasis added)

In Miller v. City of St. Joseph, 485 S.W.2d 688(Mo.App.1972), a fireman, a citizen and taxpayer of the City, brought an action to enjoin the City from entering into oral agreements with...