McQueen v. Van Deusen

• Decision Date: 24 May 1915
• Citation: 176 S.W. 1057,189 Mo.App. 492
• Parties: LIZZIE McQUEEN, Appellant, v. R. W. VAN DEUSEN et al., Respondents
• Court: Kansas Court of Appeals

176 S.W. 1057

189 Mo.App. 492

LIZZIE McQUEEN, Appellant, v. R. W. VAN DEUSEN et al., Respondents

Court of Appeals of Missouri, Kansas City

May 24, 1915

Appeal from Buchanan Circuit Court.--Hon. Wm. H. Haynes, Judge.

AFFIRMED.

Judgment affirmed.

W. B Norris for appellant.

(1) Special ordinance number 6873 is invalid because it provides for more than one improvement in the same ordinance, and contains more than one subject which is not clearly set out in the title. Sec. 8555, R. S. 1909; Boorman v. City of Santa Barbara, 4 P. 31; Mayall v. City of St Paul, 15 N.W. 107; Weckler v. Chicago, 61 Ill 142; Mendenhall v. Clugish, 84 Ind. 94. (2) Said ordinance is invalid because it provides that the total expense and cost of improvement shall be levied and assessed on all of the property fronting and abutting upon all of the portions of the streets to be so improved; and that the cost shall be apportioned according to the frontage of each lot thereon to the whole amount of frontage of all of the property. Secs. 8709, 8710, R. S. 1909. (3) That said ordinance is invalid because it provides for the taking away of the power from the owners of a majority of front feet abutting on the part of any street sought to be improved, to select the materials to be used and the method of construction of the improvement. Sec. 8839, R. S. 1909. (4) If this court should hold that said ordinance does not violate the provisions of said section 8555, and that the ordinance does not contain more than one subject, and that the subject as stated therein is clearly set out in the title, then the ordinance is invalid, because it violates sections 8709 and 8710, in that the costs of the improvement is to be taxed, levied and assessed against the real estate which does not abut upon the improvement to be made. City of Covington v. Matson, 34 S.W. 897; Mayor v. Weed, 23 S.E. 900.

John E. Dolman and F. B. Fulkerson for respondents.

(1) Special ordinance number 6873 does not offend against the mandates contained in Sec. 8555, R. S. 1909. Weber v. Johnson, 37 Mo.App. 601; St. Louis v. Liessing, 190 Mo. 468; Bergman v. Railroad, 88 Mo. 678; 2 McQuillin Municipal Corporations, sec. 681; 1 Jones & Paige on Taxation, sec. 854. (2) The method adopted in this case is in harmony with method outlined in Secs. 8709 and 8710, R. S. 1909. Stanley v. Stanley, 11 N.E. 261; Wilbur v. City of Springfield, 14 N.E. 871; Bloomington v. Reeves et al., 52 N.E. 278; Ton v. City of Chicago, 74 N.E. 1044; Sears v. Board of St. Coms. of Boston, 62 N.E. 397; State ex rel. v. District Court of Ramsey Co. (Minn.), 23 N.W. 222; Adams County v. City of Quincy, 6 L.R.A. 155; Sears v. Board of Street Coms., 62 L.R.A. 144.

OPINION

TRIMBLE, J.

Appellant brought suit to enjoin the respondents, city of St. Joseph and contractors, Van Deusen and Peters, from paving a certain highway in said city. A temporary restraining order was issued and thereafter the case was tried resulting in a finding and judgment against the injunction and dissolving the temporary writ.

There is nothing wrong with the various steps taken to authorize the construction of the improvement or the submission of the contract therefor to the contractors. The evidence introduced at the trial supports the finding of facts made by the chancellor and it is conceded that on the facts of the case the finding was correct.

The objection made by appellant is that the city has no power to secure a continuous improved street or highway by uniting parts of differently named streets into one continuous improvement.

It seems that by reason of the topography of a certain section of territory in the city it was necessary to create a continuous highway along the following route: Beginning at the north line of Highland avenue at Seventh street, thence north along Seventh street to Independence avenue, thence west along Independence avenue to Fifth street, thence north along Fifth street to Hamburg avenue, thence west along Hamburg avenue to the east line of Second street. The Board of Public Works, therefore, upon its own motion unanimously decided to recommend a bill providing that a highway along and over the above described route be paved with portland cement concrete and that concrete curbing, etc., be constructed thereon. Notice of the action contemplated was duly given as the law required, opportunity was afforded for filing objections thereto, and all objections were overruled, though no objections were made by appellant. The proposed ordinance was submitted to the city council and that body duly enacted and passed it and thereafter the contract therefor was duly let. Appellant is the owner of two lots which front on that portion of Seventh street included in the route sought to be improved as one continuous paved highway. The court found that the above-mentioned portions of the streets, in fact, constitute one continuous highway and street and have, for more than ten years, been used by the city and the public as one continuous thoroughfare, and during that time have been so treated by the city in its use and control of the same. The court further found that by reason of the topography of the surrounding country it was impracticable to use the above-described portions of said streets in any other way than as one continuous street or highway, in order to afford a reasonable and practicable thoroughfare to serve that portion of the city, and that said highway is composed of those portions of said streets as provided for in the said ordinance, and is, in fact, one street though designated by different names.

It is urged that the ordinance authorizing the improvement is invalid because it contains more than one subject which is not clearly set out in the title and provides for more than one improvement in violation of sections 8555, Revised Statutes 1909, concerning cities of the first class, which provides that "No bills . . . shall contain more than one subject which shall be clearly set forth in the title."

So far as the title is concerned, it is clearly sufficient since it says it is an ordinance to provide for the concrete paving and curbing of a certain highway, describing it. And the body of the ordinance contains nothing except what pertains to the specified improvement of that highway. The only theory on which it can be claimed the ordinance contains more than one subject is that the paving of that portion of each of the streets included in said highway constitutes a separate and distinct subject, that of paving that particular part of that particular street, notwithstanding the designated portions of said streets constitute, in fact, one continuous highway used as such, and which the city has legislatively determined shall be improved as a single highway. But the object of the city was not the improvement of the various streets as such, but only the creation of one continuous improved highway made up of, or running over, those portions of said streets. And the selection of that one highway was not an...