Findley-Khel Inv. Co. v. O'Connor

• Decision Date: 20 November 1923
• Docket Number: No. 23533.,23533.
• Citation: 256 S.W. 798
• Parties: FINDLEY-KEHL INV. CO. et al. v. O'CONNOR et al.
• Court: Missouri Supreme Court

256 S.W. 798

FINDLEY-KEHL INV. CO. et al. v. O'CONNOR et al.

No. 23533.

Supreme Court of Missouri, in Banc.

November 20, 1923.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by the Findley-Kehl Investment Company and others against James O'Connor and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

John B. Pew, J. C. Petherbridge and Clarence S. Palmer, all of Kansas City, for appellants.

Her, Meservey, Michaels, Blackmer & Newkirk, of Kansas City, for respondents.

GRAVES, P. J.

This is an action by property owners seeking to cancel some $8,000 in tax bills issued by Kansas City to the contractors for remacadamizing Troost avenue from Sixty-third street to the south city limits. Appellants are the contractors who did the work, and Kansas City, as well as the city treasurer of said city. Appellants say in their statement that the petition of respondents charged the following defects in the proceedings covering the work out of which the tax bills grew:

"The grounds upon which the cancellation of the tax bills were asked in the petition are as follows:

"First. Because the pretended resolution No 8304 was void, in that it did not in any place show on its face that the street which it was proposed to pave was within the limits of Kansas City, Mo.

"Second. Because the published notice to property owners did not correctly recite the substance of the resolution, and was not published for the full time required by law.

"Third. Beause the alleged contract actually entered into between defendant Kansas City, Mo., and defendants James O'Connor and James R. O'Connor was not the same improvement as that provided for by the said resolution No. 8304.

"Fourth. Because a majority of the resident owners of the city owning a majority of the front feet of all of the lands belonging to such residents and fronting on said Troost avenue, having filed their remonstrance against such paving or macadamizing, the power of the board of public works ceased.

"Fifth. Because the work of remacadamizing said street was not completed in accordance with the plans and specifications called for by the resolution provided by the board of public works, in that said resolution provided that the work should be done in accordance with plans and specifications on file in the office of the board of public works on October 11, 1918, whereas the actual plans and specifications under which said work was attempted to be done were not approved by the board of public works until November 15th, 1918.

"Plaintiffs state that the defendants James O'Connor and James B. O'Connor failed to macadamize said street according to the terms of said alleged contract; that they used inferior material to that provided for in the contract, and failed to lay the macadam the thickness called for in said contract, and failed to construct the macadam pavement in the manner provided for by said contract; all to the great loss of the plaintiffs."

Plaintiffs (respondents here) say in their brief here that, although their petition was broader; and contained more charges of defects in the proceeding, yet upon the trial they relied upon but three matters, thus:

"While several other grounds were alleged in the petition, at the trial below plaintiffs insisted only upon the following grounds for relief:

"(1) That the resident owners of the city owning a majority of the front feet of the lands fronting on Troost avenue had filed a remonstrance against the remacadamizing, and that as a consequence the power of the board of public works to make the improvements in controversy ceased, but that the board of public works, arbitrarily, willfully, and without consideration rejected said remonstrance, and arbitrarily undertook to proceed with the improvement, notwithstanding the fact that its power to make the alleged improvement ceased from the date of the filing of the remonstrance.

"(2) That the resolution of the board of public works and the notice of publication did not recite that the street proposed to be remacadamized is within the limits of Kansas city.

"(3) That the notice to property owners, published pursuant to the paving resolution, did not recite the substance of the resolution, and did not fully comply with the provisions of the charter with respect to such resolutions."

Having before us this admission of counsel for respondents, we can well conclude that all other charges were abandoned nisi, and of course are not here.

One of the principal questions is whether or not the resident owners of a majority of the frontage upon the street improved filed a remonstrance. As was to be expected, the parties here have contrary views as to the sufficiency of this remonstrance. The trial resulted in the cancellation of the tax bills, and all of the defendants have appealed. The pertinent facts can best be stated in connection with the points made.

I. By appellants it is first contended that the ruling and finding of the board of public works is conclusive and final. The petition charges arbitrary action upon the part of this board in its finding that no sufficient remonstrance was filed. That a remonstrance was filed is conceded. The contention that the finding and ruling of this board was and is final is based upon section 21 art. 8, of the charter of Kansas City, which reads:

"Whenever a remonstrance of property owners against public improvements, purporting to be executed under the authority of this charter, is filed with the board of public works, the board shall canvass the same and determine and certify whether or not such remonstrance is legally sufficient, under the requirements of this charter, and such certificate shall be final and conclusive as to the legal sufficiency of such remonstrance, and the determination of the said board that no legal remonstrance has been filed shall be conclusive of that fact."

Respondents say that, upon the filing of sufficient remonstrance, the power of the board to order the improvement ceased, and no further steps could be taken for six months, after which the proceeding must be started anew by the adoption of a new resolution. Their contention is based upon section 3 of art. 8 of the Kansas City charter, which reads:

"In case the improvement or part thereof consists of paving or repaving, macadamizing or remacadamizing the roadway of a street, avenue, alley, or part thereof, which shall not have been found and declared to be used and occupied for business purposes, as hereinafter specified, and the resident owners of the city owning a majority of the front feet of all the lands belonging to such residents and fronting on the street, avenue, alley, or part thereof to be paved or macadamized,, shall file with the said board, on or before the day fixed for such hearing, a remonstrance against such paving or macadamizing, the power of the board to make the improvement shall cease for the period of six months from the date of the filing of such remonstrance, after the lapse of which period the proceeding may be begun by the adoption of a new resolution."

The board of public works is one of the administrative departments of Kansas City. It is neither a court nor a legislative body; it is simply an administrative body. It has the power of prescribing rules for the conduct of the business to be transacted by it, hut this power does not change the situation. It also has the power and duty of giving its approval to proposed ordinances for public improvements before the legislative branch of the city government can act. This, however, is but a limitation upon legislative power. Mere (by section 21 of art. 8 of the charter) it is given power to pass upon the legal sufficiency of a remonstrance, and give a certificate of its finding, "and such certificate shall be final and conclusive as to the legal sufficiency of such remonstrance, and the determination of the said board that no legal remonstrance has been filed shall be conclusive of that fact."

Note that the charter provision does not make the finding prima facie proof of the fact, but makes it conclusive and final proof of the fact. If the provision is a valid one, then the parties are deprived of their right to have a court pass upon the question, because a mere administrative board has found the fact against them, which finding in this case involves, not only a consideration of evidentiary facts, but the legal sufficiency of those facts. Thus in this case some of the signatures to the remonstrance were not written by the property owners, but by an agent or attorney. Corporate signatures were there without action by the board of directors, but merely by some executive officer. The ultimate thing to be determined was the legal sufficiency of the petition, and this ultimate fact could not be found except by determining the legal sufficiency of the evidentiary facts. Quere; Can such power (that of final and conclusive determination) be granted without infringing upon constitutional rights? The Public Service Commission is an administrative board of the state, yet we have ruled that for a statute to make its findings "conclusive evidence of the facts therein stated," to be clearly unconstitutional. State ex. rel. v. Atkinson, 271 Mo. loc. cit. 42, 195 S. W. 741, and cases therein cited. In fact a court review of the acts of this administrative board was established in order to give it standing under our Constitution. The framers of the charter could not make the findings of the board of public works conclusive and final upon the fact of there being no legal remonstrance. Such a board is not a court so as to make its findings res adjudicata. Neither is it a legislative body so as to make its findings binding. It is a mere administrative board upon which no such power could be granted without doing violence to both state and federal Constitutions. See Atkinson's Case supra, and the cases collated therein.

The action of the board of...