Frazier v. City of Rockport

• Decision Date: 01 April 1918
• Docket Number: No. 12787.,12787.
• Citation: 202 S.W. 266,199 Mo. App. 80
• Parties: FRAZIER v. CITY OF ROCKPORT et al.
• Court: Missouri Court of Appeals

202 S.W. 266

199 Mo. App. 80

FRAZIER v. CITY OF ROCKPORT et al.

No. 12787.

Kansas City Court of Appeals. Missouri.

April 1, 1918.

Appeal from Circuit Court, Atchison County; John M. Dawson, Judge.

Bill by Eunice E. Frazier against the City of Rockport and others. Demurrer to bill sustained, and plaintiff appeals. Affirmed.

E. G. Frazier, of Rockport, for appellant. Wm. C. Ellison, of Maryville, for respondents.

TRIMBLE, J.

Plaintiff brought a bill in equity to enjoin the execution of a contract made by the city authorities of Rockport, a city of the fourth class, with the Western States Construction Company for the making of a certain public street improvement, theretofore authorized, payment for which was to be made by special assessments levied upon the tracts of real estate abutting upon and benefited by the said improvement. Plaintiff, as the owner of one of these tracts, is directly interested in and affected by said contract, and is therefore entitled to ask a court of equity to pass upon the validity thereof. A demurrer to the bill was interposed and sustained, whereupon plaintiff stood upon her bill and appealed.

As the demurrer admits all the facts alleged and properly pleaded in the bill, we must look to it for the facts upon which the case rests. From the statements therein contained it appears that the legislative authorities of said city deemed it necessary that a number of streets and portions of streets, all carefully and explicitly designated, and connected together so as to form one continuous improvement of the same character throughout, should be brought to the established grade and then curbed and guttered so as to make the improved part of the said streets of certain specified widths and of a smooth and even finished surface, and such as would permit the drainage of water on the improved portion of said streets into said gutters. In accordance therewith, said legislative authorities enacted the necessary ordinances and resolutions, expressing such necessity and providing for the proposed improvement. The various steps required by law to effectuate this purpose were taken, and the proceedings culminated in the advertising for bids for the work, and the acceptance of the bid of the Western States Construction Company as the lowest and best bid. The city executed a contract pursuant to said bid, and the same was about to be put into effect when further proceedings were suspended by the institution of this suit.

It is unnecessary to set forth in detail the necessary ordinances, resolutions, adoption of plans and specifications, the filing of the engineer's profiles, estimates, etc., and the other procedure required to authorize a municipal street improvement, since, in the absence of a particular challenge thereof by the allegations of the bill, it will be presumed that the municipal authorities complied with the statutory requirements. And, indeed, the bill herein seems to concede, impliedly if not expressly, that all the various steps were taken and are in proper form and valid except in respect to the specified particulars hereinafter mentioned.

Aside, then, from the particular complaints and objections leveled by the bill against the legality of the contract and proposed improvement, we assume that the city authorities have the power to provide for the construction of the public improvement aforesaid and for the payment by special assessments on the property abutting upon the proposed improvement and benefited thereby. Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, 568, 38 S. W. 458; City of Excelsior Springs v. Ettenson, 120 Mo. App. 215, 96 S. W. 701.

The first objection in plaintiff's brief against the validity of the contract and in support of her bill to enjoin its execution appears to have two branches: First, that since the proposed improvement covers a number of streets and parts of streets, it cannot be regarded as one improvement, no matter what the circumstances are and notwithstanding the recitals in the ordinances and resolutions that it is one improvement and that it is necessary to be dealt with as one improvement; second, that as the streets are to be improved to different widths, and, in being brought to grade, will have to be excavated to varying depths at different places, and since the estimate of the cost of the entire improvement filed by the city engineer is in a lump sum, and not according to the unit measure; i. e., by the cubic yard or lineal foot, there is no way by which the cost of that part of the improvement to which plaintiff's property really belongs, and only for which it should be assessed with its pro rata share, can be ascertained.

With reference to the first branch of this objection, it should be observed that then are no allegations of fact in the bill which show that, notwithstanding the declarations in the ordinances to the contrary, the improvement proposed is in reality more;than one improvement, or that it would be inequitable, unjust, or a fraud upon plaintiff to require plaintiff's property to contribute its pro rata share of the cost of improving the specified streets as one single and entire improvement. The bill alleges that Rockport, the county seat of Atchison county, has a population of 1,200; that none of its streets are paved, macadamized, curbed, or guttered. And while it alleges that the station of its one railroad is about three-fourths of a mile from the principal business portion of the town, and that they are connected by one continuous street, called Main street, which runs north and south through the entire corporate limits of the city, and that the courthouse, the high school, the station, and the several churches are separated from one another by distances varying from 2 to 16 city blocks, and further alleges certain other statements as to the topography of the city, yet the petition admits that all of the above-named public places of the city "are connected by public streets of said city within the limits of the proposed improvement." The petition elsewhere again concedes that all parts of said proposed street improvement are connected together so as to form a continuous line of improvement of the same material and character throughout, and that each piece of property within the district to be improved is connected thereby with every other piece and with the high school, churches, business section, and railroad station, and the streets proposed to be improved parallel and cross each other in such manner as to form blocks and squares. And the objection seems to rest upon the bare fact that the streets constitute such a large portion of the town, and upon the further fact that the filling and excavating to be done according to the plans and specifications vary materially in quantity throughout the line of the proposed improvement, being more on some streets and less on others.

There are therefore no facts alleged in the petition which show, or which will enable the court to say, that the city authorities have declared that to be one improvement which is in fact more than one; while, on the contrary, the facts that are stated seem to indicate that the improvement is in fact one improvement and necessary to be treated as such, as declared by the authorities in their various enactments. In Church v. People, 179 Ill. 205, 206, 53 N. E. 554, 555, it is said:

"The extent of an improvement, and what shall be included within it, rests in the legislative discretion of the city council, and the courts will interfere only to correct a clear abuse of the discretion. Davis v. City of Litchfield, 145...