McKine v. City of Independence

• Decision Date: 05 January 1914
• Citation: 162 S.W. 326,175 Mo.App. 332
• Parties: CARRIE McKINE et al., Respondents, v. CITY OF INDEPENDENCE, Appellant
• Court: Kansas Court of Appeals

162 S.W. 326

175 Mo.App. 332

CARRIE McKINE et al., Respondents, v. CITY OF INDEPENDENCE, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1914

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

Culver & Phillips and Flournoy & Flournoy for appellant.

Culbertson & Crimm for respondents.

OPINION

ELLISON, P. J.

Plaintiff's action was instituted for the purpose of cancelling certain taxbills issued for street paving in the city of Independence. He had judgment in the circuit court.

The ground charged is that the defendant, the contractor who promoted the work, fraudulently and secretly allowed rebates to certain property holders along the street to be paved; and what, in this controversy, is perhaps the same thing, in consideration that certain property holders would withdraw opposition to the improvement and take their names from a remonstrance which had been filed, they would be paid a sum of money. The amount did not equal the entire charge which would be assessed against the property of these owners, but, in one instance at least, it was a considerable part of it. If this charge is sustained by the evidence taken, it is conceded the taxbills would be void. [Childers v. Holmes, 95 Mo.App. 154, 68 S.W. 1046; Kentz v. Knapp, 127 Mo.App. 608, 612; Rider v Parker-Washington Co., 144 Mo.App. 67, 128 S.W. 226; Platt v. Parker-Washington Co., 161 Mo.App. 663 670, 144 S.W. 143; Field v. Barber Asphalt Co., 117 F. 925, 928; Brady v. Bartlett, 56 Cal. 350; Maguire v. Smock, 42 Ind. 1, 4, 5; 2 Elliott on Roads & Streets, sec. 729; 1 Page & Jones Taxation, 764.]

Under the law, if a majority of the property owners remonstrate against an improvement it could not be made. The evidence showed that Mrs. Crane was a property owner who had signed a remonstrance and that she withdrew from that paper in consideration that she was to be paid fifty dollars. It was shown that this payment was made through one Lyttle. He undertook to show that he was disinterested except as he acted for himself as an owner of a small property on the street; but he made a lame and unsatisfactory effort. It was shown that he was a very busy and persistent advocate of the improvement and that he took a trip to St. Joseph at the expense of the defendant to see its president. It was further shown that he had no surplus means to be paying parts of the tax of others, and his own account. He had to support a family and was working for a gas company on a salary of sixty-five dollars per month. He was much in...