Dennison v. City of Kansas

• Citation: 8 S.W. 429,95 Mo. 416
• Parties: DENNISON et al. v. CITY OF KANSAS.
• Decision Date: 04 June 1888
• Court: United States State Supreme Court of Missouri

8 S.W. 429

95 Mo. 416

DENNISON et al. v. CITY OF KANSAS.

Supreme Court of Missouri.

June 4, 1888.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — PAVING STREET — ORDINANCE.

Under the charter of Kansas City, (Acts Mo. 1875, p. 250,) which provides that streets shall not be improved at the expense of property holders thereon, until a majority thereof, in front feet, petition therefor, after which such petition shall be published, when persons liable for the expense of the proposed improvement may make objections thereto, which the council shall hear and decide, and that when the ordinance providing for such improvement declares that the requirements, as to petition and notice, have been complied with, such declaration shall be conclusive for all purposes, if the council refuse a hearing, when demanded, to interested persons making objections, the execution of such ordinance will be restrained until such hearing is had.

2. SAME — INJUNCTION — PARTIES.

One property holder may maintain a suit, on behalf of himself and others similarly situated, to restrain the execution of an ordinance, illegally passed, for the improvement of a street at the expense of said property holders.

3. APPEAL — PRACTICE — INJUNCTION

Upon appeal from a decree dismissing a bill for an injunction to restrain the execution of an ordinance for the paving of a street, the supreme court will not consider affidavits to the effect that, since the appeal was taken, the paving has been completed, and will not for that reason dismiss the bill, but will act upon the record as it came from the court below.

BLACK and BRACE, JJ., dissenting.

Appeal from circuit court Jackson county.

Suit in equity by M. L. Dennison, who sues on his own behalf, as well as for other owners of real estate fronting on Grand avenue, a street in the city of Kansas, against said city, to restrain the execution of an ordinance for paving said avenue at the expense of said real-estate owners. A demurrer to the bill was sustained, and the plaintiffs appeal.

C. F. Ballingall and Botsford & Williams, for appellants. Lathrop & Smith and Wash. Adams, for respondent.

NORTON, C. J.

This is a bill in equity instituted by plaintiffs, who are the owers of certain lots abutting on Grand avenue, a street in the city of Kansas. The suit is brought in the name of plaintiffs, for themselves and all property owners on said street similarly situated; and the object of it is to restrain and enjoin defendants from executing a certain ordinance passed by the city council, providing for paving said Grand avenue between Twelfth and Twentieth streets, with cedar blocks set on hydraulic cement, concrete foundation, nine inches thick. The petition was demurred to, the demurrer sustained, bill dismissed, and judgment entered in favor of defendants, from which plaintiffs have appealed. So much of the petition as raises the points discussed by counsel is as follows: That on the 2d July, 1884, there was presented to the common council of Kansas City, at a special meeting thereof, and filed in the office of the city clerk, a petition signed by resident and non-resident owners of real estate to have Grand avenue, a street in said city, paved to the full width thereof, exclusive of sidewalks, from the south line of Twelfth street to the north line of Twentieth street; said paving to consist of cedar blocks set on a foundation of concrete hydraulic cement, nine inches in thickness; that said petition had been published in the Kansas City Times, a newspaper of general circulation in said city, for 10 days previous to its presentation to the said council, and that a certificate of the city engineer was appended thereto that the names signed to said petition represented a majority of the front feet of real estate owned by residents of said city fronting on Grand avenue from Twelfth to Twentieth streets; "that, at the same time of the presentation of said petition, remonstrances were presented to said common council against such a project. And your petitioners charge that said petition did not have signed thereto a majority of the names of property holders owning a majority of the front feet of property owned by residents of said city, and fronting on the said part of Grand avenue proposed to be paved as aforesaid; and that, prior to and at the time of the presentation of said petition, a large number of the resident property holders owning property fronting on said part of Grand avenue, signing said petition, had withdrawn their names therefrom, and remonstrated in writing against said paving, which said written remonstrance and withdrawals were presented to said city council at the time of the presentation of said petition, aforesaid; and that names of the resident property owners owning real estate fronting on said avenue remaining on said petition represented only a minority of the front feet of property owned by residents of said city, and fronting on said part of Grand avenue proposed to be paved as aforesaid; and that the certificate of said city engineer that said petition represented a majority of such resident property holders was and is wholly false. Twelfth. That thereupon, and notwithstanding that said petition did not represent a majority of the property holders owning a majority of the front feet of property owned by residents of said city, and fronting on said avenue proposed to be so paved as aforesaid, at said called session of said common council, an ordinance, number 27,461, to pave said Grand avenue from Twelfth to Twentieth streets, in accordance with said petition, was introduced into said common council by said defendant Hovelman, one of the members thereof, which said ordinance was taken up, read the first time, and referred to the street and alley committee of said council, and to said city engineer, with all said papers, for report at the next meeting of said common council; and that afterwards, and on the 18th day of July, 1884, at a special meeting of said common council, said street and alley committee reported back said ordinance with the recommendation that the same do not pass, which said report was taken up, received by said council, and filed; and the said ordinance, and the papers, petition, and remonstrances, was then and there referred to the aldermen of the Second ward and the city engineer. And plaintiffs charge that said reference to said aldermen and city engineer was wholly without authority on the part of said common council; that said common council is, by the charter of said city, required to hear and determine all objections...