Dennison v. City of Kansas

• Court: Missouri Supreme Court
• Writing for the Court: Norton, C. J.
• Citation: Dennison v. City of Kansas, 95 Mo. 416, 8 S.W. 429 (Mo. 1888)
• Decision Date: 04 June 1888
• Parties: Dennison et al., Appellants, v. City of Kansas et al

8 S.W. 429

95 Mo. 416

Dennison et al., Appellants, v. City of Kansas et al

Supreme Court of Missouri

June 4, 1888

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

G. F Ballingal and Botsford & Williams for appellants.

(1) Under the allegations of the original and amended and supplemental petitions, a court of equity has jurisdiction to prevent the enforcement of the illegal ordinance of the City of Kansas for the paving of Grand avenue in said city, and injunction is the appropriate remedy. State v. Saline County Court, 51 Mo. 350; Newmeyer v. Railroad, 52 Mo. 81; Mathis v. Town, 62 Mo. 504; Ranney v Bader, 67 Mo. 476; Baltimore v. Radecke, 49 Md 247; Miller v. Mobile, 47 Ala. 163; Town v. Nelson, 35 Ind. 532; Dunwiddie v. Russellville, 37 Ind. 66. (2) The petition charges a palpable and flagrant abuse by the city authorities of Kansas City of the power conferred by the city charter of paving the streets and avenues of said city at the expense and charge of the property fronting thereon; and an arbitrary and illegal assumption of power by the common council in forcing the passage of the ordinance complained of in disregard of the rights and remonstrances of appellants and others as the owners of such property; and a court of equity has the undoubted power to restrain, prevent, and correct such abuse from operating to their injury by declaring such ordinance null and void. 2 Dill. on Mun. Corp. [4 Ed.] secs. 908, 911, 914, and cas. cit. (3) And the suit is properly brought in the names of appellants, on behalf of themselves and all other owners of property situate on said street, similarily situated and injuriously affected by the proceedings under said ordinance, sought to be restrained by the injunction prayed for in appellants' said petition. Newmeyer v. Railroad, 52 Mo. 81, and cases cited; Overall v. Ruenzi, 67 Mo. 203; Ranney v. Bader, 67 Mo. 476; Ewing v. Board, 72 Mo. 436; 2 Dillon Mun. Corp. [4 Ed.] sec. 914, and cases cited. (4) The power of the circuit court of Jackson county to subject to its authority municipal corporations within its jurisdiction, and to declare ordinances passed in violation of their charter void, is inherent, and cannot be taken away without express negative provisions. Const. of Mo. 1875, art. 6, sec. 23; R. S., 1879, sec. 72; State ex rel. v. Fitzpatrick, 44 Mo. 425; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220; Ex parte Heath, 3 Hill [N. Y.] 51; Rex v. Moreley, 2 Burr, 1040; King v. Commissioners, 2 Keeble, 43; Rogatz v. Dubuque, 4 Iowa, 343. (5) The power of the city council of Kansas City to create a lien on the property of its citizens for street paving, is founded solely on the provisions of the city charter, and rests exclusively in an adherence to the methods prescribed thereby. City v. Franks, 78 Mo. 42; City v. Swope, 79 Mo. 446; Dillon on Mun. Corp. [4 Ed.] sec. 769, and cases cited. (6) The requirements of the city charter that no street or avenue, or any part thereof, shall be paved at the expense of the property-holders owning the property fronting on such street or avenue, unless a majority of the real-estate owners of front feet on such street or avenue or part thereof proposed to be paved, and are residents of the City of Kansas, shall petition the common council therefor, is jurisdictional, and an ordinance providing for such paving, without such petition, will be declared void in a direct proceeding for that purpose. Sess. Acts 1875, sec. 1, p. 250; City v. Franks, 78 Mo. 41; City v. Gleason, 89 Mo. 67; 2 Dillon Mun. Corp. [4 Ed.] sec. 800, and cases cited; Mulligan v. Smith, 59 Cal. 206; Starr v. Burlington, 45 Ia. 87. (7) The conclusiveness of the finding and declaration in the ordinance for the paving of Grand avenue that the work had been petitioned for and the petition published according to law, depends upon the compliance of the common council with the mandate of the city charter that they shall hear and decide on all objections to such petition. Sess. Acts 1875, sec. 14, p. 203; sec. 8, p. 254; Clark v. Mitchell, 64 Mo. 564, and cases cited; Windsor v. McVeigh, 93 U.S. 274, and cases cited; Rogatz v. Dubuque, 4 Iowa, 343; Granger v. Buffalo, 6 Abbott's N. C. [N. Y.] 238; People v. Rochester, 21 Barb. 656; Mulligan v. Smith, 59 Cal. 206; City v. Pinckney, 3 Brev. [S C.] 217. (8) If section 8, of article 8, of the charter of the City of Kansas making the finding and declaration of the common council in the paving ordinance, that the work had been petitioned for and the petition published according to law, conclusive for all purposes, precludes the courts of this state in a direct proceeding for that purpose from inquiring into and redressing the illegal and arbitrary action of the council in making such finding and declaration contrary to the fact, without evidence, in refusing to hear any objections to the petition, and in violation of the requirements of the charter, thereby creating indisputable and conclusive liens on the property of the citizens, by which they may be deprived of the same and leaves them without any redress in its courts of justice, as contended for by respondents, and as decided by the court below, then such section in this regard is in violation of section 30, of article 2, of the constitution of Missouri, and is, and ought to be declared, null and void. Abbott v. Lindenbower, 42 Mo. 162; Clark v. Mitchell, 64 Mo. 564; Cooley Const. Lim. [5 Ed.] 453, 454, and cases cited; Sedgwick on Stat. & Const. Law [Pomeroy's notes], 138-142. (9) The requirements of the city charter are that the common council shall hear and determine objections to the petition, and shall find and declare whether the same had been signed by a majority of the resident owners of real estate fronting on the street sought to be paved, and this power could not be delegated to the city engineer or to a committee of the council and such engineer. Thompson v. Boonville, 61 Mo. 283; Mathews v. Alexandria, 68 Mo. 119; Macon v. Patty, 57 Miss. 378; 2 Dillon Mun. Corp. [4 Ed.] sec. 779, and cases cited; Hager v. City, 42 Iowa 661. (10) The action of the common council, at the special session thereof, in permitting a new paving petition and ordinance, for the paving of Grand avenue, to be presented before it, and in the passage of such ordinance without having been called together by the mayor for any such purpose, was illegal and the ordinance so passed was and is null and void. Sess. Acts 1875, sec. 8, p. 211.

Lathrop & Smith and Wash Adams for J. B. Smith et al., respondents.

(1) So far as the bill invokes the process of injunction, it must fail for the reason that all the acts sought to be restrained have been performed. (2) It was settled at a very early day in this state that an appeal will not lie from an order refusing a temporary injunction. Tanner v. Irwin, 1 Mo. 49; Johnson v. Board, 65 Mo. 47. (3) It appears on the face of the bill that there is a defect of parties and a misjoinder of causes of action. Neither plaintiff is interested in all the lots nor in the lien to affect any of the lots except his own. Barrie v. Beloit, 19 Wis. 93; Miller v. Grandy, 13 Mich. 540; Bliss on Code Pleading, sec. 126; Doan v. Holly, 25 Mo. 357; Statcup v. Garner, 26 Mo. 72. (4) The requirements of the charter of the City of Kansas, that the petition for paving may be published for five days in the newspaper doing the city printing; and that a petition signed by a majority of real-estate owners of front feet be required, and objections thereto be heard and determined, are merely directory. Farrar v. St. Louis, 80 Mo. 379; Palmyra v. Martin, 25 Mo. 593; City v. Fowler, 34 Ind. 140; Raley v. Gwinn, 76 Mo. 263; Adams v. Lindell, 72 Mo. 198; People v. City, 21 Barb. 656. (5) The power to hear and decide, which constitutes jurisdiction, being vested in the common council, its decision respecting such subject-matter could not be void; at most it could be merely irregular and erroneous. Gray v. Bowles, 74 Mo. 419. The complainants can have their day in court when sued on the tax bills. St. Louis v. Richeson, 76 Mo. 470; Corrigan v. Gage, 68 Mo. 541; Cape Girardeau v. Riley, 72 Mo. 220. (6) The alleged fact that the "Kansas City Reporter" was not a "newspaper for the collection and dissemination of general news," is not material, because in such cases a general newspaper is not required, and because the decision of the council as to publication was conclusive, as shown supra. Kellogg v. Carrico, 47 Mo. 157; Kerr v. Hitt, 75 Ill. 51. (7) Even if it be conceded that these requirements of the city charter are mandatory, and that a failure to observe the same renders the proceeding void, it does not follow that plaintiffs are entitled to the relief prayed, because (a) there is ample remedy at law. 1 High on Inj., secs. 28, 29, 30, 543, 544, 545, 546. When the proceeding is void for want of jurisdiction, injunction is not the proper remedy. Railroad v. Reynolds, 89 Mo. 146; Bank v. Meredith, 44 Mo. 503; Steines v. Franklin Co., 48 Mo. 176; Barrow v. Davis, 46 Mo. 394; McPike v. Pew, 48 Mo. 525; Sayre v. Tompkins, 23 Mo. 443; State v. Parker, 32 Mo. 496; Deane v. Todd, 22 Mo. 90. (b) If the council, acting in a judicial capacity, arbitrarily denied complainants a hearing in a proceeding where they were entitled to be heard, the obvious remedy was mandamus. (c) Or, if they departed from the charter requirements, the appropriate mode of reviewing their action was certiorari. 1 High on Inj., sec. 543; State ex rel. v. Dowling, 50 Mo. 136; State ex rel. v. Powers, 68 Mo. 323; Dillon Mun. Corp., secs. 806, 926. (8) Where certiorari lies, injunction is denied. 1 High on Inj., secs. 173, 230; Gaetner v. Fon Du Lac, 34 Wis. 497; People v. Van Alstyne, 32 Barb. 136; ...