Goodson v. City of Ferguson
| Decision Date | 14 November 1960 |
| Docket Number | No. 2,Nos. 47977-47979,s. 47977-47979,2 |
| Citation | 339 S.W.2d 841 |
| Parties | Roy A. GOODSON and Pauline A. Goodson, his wife, and Curtis L. King and Bonnie M. King, his wife, et al., Individually and as Class Representatives, Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Robert C. Storey, City Manager of City of Ferguson, and John A. Thompson, Gerald C. Reid, Clarence F. Bartelsmeyer, John V. Shepardson, Tom Alwood, Robert G. Haddenhorst and Raymond Dussold, as Council Representatives of the City of Ferguson, Respondents. Ben F. WRIGHT and Ida M. Wright, his wife, and Oliver F. Dahi and Pearl K. Dahl, his wife, Individually, and as Class Representatives, Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Robert C. Storey, City Manager of City of Ferguson, and John A. Thompson, Gerald C. Reid, Clarence F. Bartelsmeyer, John V. Shepardson, Tom Alwood, Robert G. Haddenhorst and Raymond Dussold, as Council Representatives of the City of Ferguson, and Municipal Contractors, Inc., a Corporation, Miller Brothers Excavating Company, Respondents. Glenn V. HOOKER and Grace R. Hooker, his wife, and Richard C. Hardesty and Laura M. Hardesty, his wife, Individually and as Class Representatives, Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Robert C. Storey, City Manager of City of Ferguson, and John A. Thompson, Gerald C. Reid, Clarence F. Bartelsmeyer, John V. Shepardson, Tom Alwood, Robert G. Haddenhorst and Raymond Dussold, as Council Representatives of the City of Ferguson, and Municipal Contractors, Inc., a Corporation, Respondent |
| Court | Missouri Supreme Court |
William R. Schneider, St. Louis, for plaintiffs-appellants.
Carleno & Nick, Ferguson, Wehrle & Wehrle, Clayton, Michael J. Aubuchon, St. Louis, for respondents.
STOCKARD, Commissioner.
In each of these three cases (consolidated for purposes of appeal) the trial court dismissed plaintiffs' petition for failure to state a claim upon which the requested relief may be granted. If this court has jurisdiction of these appeals it is only because the petitions properly and sufficiently allege facts which present an issue involving the construction of the Constitution of the United States or this state within the meaning of Section 3, Article V, Constitution of Missouri. The substance of the petitions is the same. We shall refer to the allegations of the petition in case number 47,978.
Plaintiffs allege that the City of Ferguson is a special charter city organized under Section 19, Article VI, Constitution of Missouri, V.A.M.S., and that certain named defendants are its city manager and the members of its council; that plaintiffs are the owners of real property abutting on Derinda Avenue between Elizabeth and Barat Avenues and that they bring this action for themselves and as a class representative for other resident property owners. Plaintiffs attach to the petition and incorporate therein by reference copies of Sections 68, 69 and 70 of Article VIII of the charter of the City of Ferguson, and allege that these sections were 'in effect at all times material hereto.' Section 68 provides that any public improvement, except in emergencies, shall be begun by the adoption of a resolution, and when payment therefor is to be by special tax bills, the resolution shall state the proposed method of making assessments to pay for the improvement and the estimate of the probable cost. Section 69 provides that any public improvement which is to be paid for in whole or part by special tax bills shall be authorized and executed as follows: The council shall publish the resolution declaring the necessity for such improvement and cause a copy of the resolution to be mailed to each resident property owner and hold a public hearing thereon; if at least eighty percent of the resident property owners who also own eighty percent of the front feet abutting on the proposed improvement shall file protests against such improvement, 'then the council shall authorize such improvement only by an ordinance passed with the affirmative vote of at least six members of the council;' but if such protests are not filed the improvement may be authorized by the passage of an ordinance in the ordinary manner. Section 70 provides for the finality of the determination by the city council that no valid protests to the improvement were filed.
Plaintiffs then allege that on January 28, 1958 the council of the City of Ferguson passed a resolution 'declaring the necessity of grading and paving Derinda Avenue' and that 'a portion of the cost thereof to the extent of approximately $6.50 per front foot, be levied as an assessment in the form of special tax bills against all privately owned real property abutting both sides of said Derinda Avenue'; that 'pursuant to Section 69 of the charter of said City' the defendants did cause notice of the passage of said resolution and of the holding of a public hearing thereon on February 11, 1958 to be published and mailed to the owners of real property abutting Derinda Avenue; that within ten days after the public hearing there was lodged with the clerk of the City of Ferguson protests in writing by all the resident owners of all the property abutting said street against making the street improvements and against assessing the costs thereof against the property abutting Derinda Avenue; that on February 28, 1958 a bill was introduced in the council which 'on March 11, 1958 was passed and approved as Ordinance No. 228' providing for the grading and paving of Derinda Avenue and for the payment of the cost thereof by assessing such cost against the real property abutting both sides of said street in the form of special tax bills against such property at a rate not to exceed $6.50 per front foot; that on July 7, 1959 the council passed an ordinance approving plans and specifications for repaving of Derinda Avenue and authorizing the city manager to advertise for bids; and that bids were requested by advertisement and a bid was submitted by Municipal Contractors, Inc. subject to acceptance by the council. A copy of Ordinance No. 228 is attached to and made a part of the petition. Plaintiffs then allege that payment for the work will be made by the issuance to the contractor of special tax bills which will constitute a lien and cloud upon the title of the real property owned by plaintiffs and those constituting the class represented by plaintiffs, and 'That the letting of said bids and the advertisement therefore is invalid and in violation of the terms of the charter of the City of Ferguson and Article VI, Section 19 of the constitution of the State of Missouri;' and also 'that Ordinance No. 228 as aforesaid, insofar as it authorizes the cost of the paving of Derinda Avenue as aforesaid to be levied as an assessment in the form of special tax bills against the respective parcels of real property abutting Derinda Avenue as aforesaid, is void and unconstitutional, in that the issuance of special tax bills thereunder against the real property abutting said Derinda Avenue as aforesaid, will deprive these plaintiffs and others whom they represent as a class, of their property, without due process of law, in derogation and contravention of Article I, Section 10 of the Constitution of the State of Missouri, and of Amendment No. V of the Constitution of the United States of America.'
Plaintiffs next allege, in paragraph 9 of their petition, that 'Derinda Avenue * * had been resurfaced and paved with macadem within a short time prior to the passage of said Ordinance No. 228,' and that at the time of the passage of the ordinance and at the time the suit was filed 'the surface of said Derinda Avenue is in an excellent state of repair and has so been for a long time prior thereto;' that there was and is 'no immediate necessity or reason for the resurfacing and repaving of said Derinda Avenue;' that the finding of the city council that it was necessary to pave Derinda Avenue with concrete was made 'without reasonable cause or excuse and had no relation to the facts concerning the condition of said Derinda Avenue.' They further allege that the finding of the city council 'regarding the necessity of repaving Derinda Avenue * * * was part and parcel of a plan or scheme of the members of said Council to repave with concrete all of the streets in said City regardless of their condition or the necessity for said repaving.' Plaintiffs then conclude with general allegations to the effect that Ordinance No. 228 in respect to the finding therein of necessity for the repaving of Derinda Avenue is arbitrary, oppressive and unreasonable, and any tax bills issued in respect...
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