Rhodes v. Koch

• Decision Date: 08 May 1915
• Docket Number: No. 1481.,1481.
• Citation: 176 S.W. 286,189 Mo. App. 371
• Parties: RHODES et al. v. KOCH et al.
• Court: Missouri Court of Appeals

176 S.W. 286

189 Mo. App. 371

RHODES et al. v. KOCH et al.

No. 1481.

Springfield Court of Appeals, Missouri.

May 8, 1915.

Rehearing Denied May 25, 1915.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Suit by W. S. Rhodes and others against V. E. Koch and the City of Springfield. From an order sustaining defendants' demurrer, plaintiffs appeal. Reversed and re. mantled.

Williams & Galt, of Springfield, for appellants. Pearson & Butts, of Joplin, for respondent Koch.

FARRINGTON, J.

The plaintiffs (appellants) are residents of Springfield, Mo., and owners of certain property fronting on Phillips street. The defendant city is a city of the third class, and defendant V. E. Koch is a contractor with whom the city made a contract to improve Phillips street by paving. The plaintiffs sought to enjoin and restrain the defendants from tearing up the street and placing concrete pavement thereon and from issuing and delivering to the contractor certain special tax bills in payment therefor. A demurrer was filed to the amended petition, which was by the trial court sustained. Plaintiffs refused to plead further, and bring their appeal to this court, contending that the trial court erred in sustaining the demurrer.

The amended petition is quite long, and we will set forth only such facts as are therein disclosed which we deem necessary for the discussion of the questions presented. As before stated, the petition alleged that Springfield is a city of the third class, that Koch is a contractor, and that Phillips street is within the corporate limits and subject to the government of the city. It also sets up the names of the property owners on said street who are plaintiffs in the action, giving the number of front feet owned by each. It charges that defendants are about to tear up, and have torn up, the street in front of their property, and propose to pave the roadway between the curb lines with concrete paving. It is alleged that the length of that portion of the street proposed to be paved is 2,258 lineal feet; also that there are 23 resident property owners who own the abutting property on said street, and that 14 of them, owning 1,573 feet of the abutting property, remonstrated against the improvement. It is then averred that resolution No. 1165 was adopted by the city council on April 29, 1913, and approved on May 3d following, and that it was published in the Springfield, Missouri, Republican from May 6th to May 13th, inclusive; also that the remonstrance was filed with the city clerk on May 12, 1913, which was one day prior to the last insertion in the said newspaper, and that it was presented and read to the council on May 20, 1913, a ad referred to the street and alley committee, and the records of the city council for June 3, 1913, show the following proceedings:

"Mr. Gooch presented and had read the following:

"`Springfield, Mo., May 28, 1913. "`Hon. Mayor and Street and Alley Committee, City of Springfield, Mo.—Gentlemen: In reference to the remonstrance referred to me for opinion as to the validity of the remonstrance, filed May 12, 1913, against the construction of paving on Phillips street, from Campbell to Grant street, will say that the remonstrance is filed out of time and is of no force and effect for that reason. The only way that this remonstrance can become effective and be considered by your committee is for the remonstrators to refile this remonstrance or get a new one.

"`Respectfully, L. Walker, City Attorney.' "In accordance with the above-written opinion of the city attorney, we hereby return the remonstrance to the city council.

                                                  "John Cowell
                                                  "J. B. Gooch
                                                  "G. D. Morgan
                

"On motion the report was adopted."

It is then alleged in the petition that, notwithstanding the fact that the city council arbitrarily and unreasonably ignored the remonstrance, and had no legal power to act after the filing of the remonstrance, it unreasonably and arbitrarily and in violation of law passed an ordinance which was approved on June 3, 1913, containing the following:

"The council hereby finds and declares that a majority of the resident owners of property liable for taxation for the cost of the improvement provided for, and contemplated by this ordinance, and also owning a majority of the front feet owned by resident property owners of this city abutting on said street within the distance proposed to be improved, have not filed with the city clerk of this city, a protest against said improvement within ten days after the completion of the publication of the aforesaid resolution, No. 1165, approved May 3, 1913." (Italics are ours.)

The petition further alleges that the city council then proceeded to make a contract by ordinance with defendant V. E. Koch, and awarded him a contract for doing the work sought to be enjoined, alleging that the making of said contract and all acts performed thereunder were illegal, unreasonable, arbitrary, ultra vires, and void.

The questions which we will discuss are: First, whether a remonstrance, proper in all other respects as to form and substance, complies with the law when it is filed after the first insertion in the newspaper, and before the last insertion, the remonstrance having been filed with the city clerk and remaining on file during the full ten-day statutory period after the last insertion in the newspaper, and which remonstrance was after that time taken up by the city council and acted on; and, second, whether a finding and declaration by ordinance passed by the city council that such a remonstrance, because of the fact that it was filed prematurely, was no remonstrance under the construction given the terms of the statute, and is a conclusive finding as is contemplated by the statute so as to prohibit a majority of the resident owners owning a majority of the front footage from attacking the contract for making the improvement, and makes the " special tax bills immune from invalidity for the reason that a remonstrance sufficiently signed was not filed with the city clerk.

The statutes of this state giving cities of the third class power to pave streets have undergone some changes. It was provided by section 110, p. 92, of the Session Acts of 1893, as follows:

" * * * And if a majority of the resident owners of the property liable to taxation therefor shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause such improvements to be made, and to contract therefor, and to levy the tax as herein provided."

Afterwards, as shown by section 9255, R. S. 1909, a new section was enacted, which, so far as this case is concerned, is similar to the law a 1893, except that it contains the following provision:

"* * * And if a majority of the resident owners of the property, liable to taxation therefor, at the date of the passage of such resolution, who shall own a majority of the front feet owned by residents of, the city abutting on the street, avenue or alley proposed to be improved, shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power to cause a contract for said work to be let to the lowest and best bidder, on the plans and specifications filed as aforesaid with the city clerk by the city engineer or other proper officer, not less than one week's advertisement for bids thereon being made in some newspaper published in the city. * * * When the council shall, by ordinance, find and declare that a majority of the resident owners of the property liable to taxation therefor, who shall also own a majority of the front feet owned by residents of the city abutting on the street or alley proposed to be improved, have not filed with the city clerk a protest against such improvement, such finding and declaration shall be conclusive after the execution of the contract for said improvement, and no special tax bill shall be held invalid for the reason that a protest sufficiently signed was filed with the city clerk."

This law was again amended in 1911 (Sess. Acts 1911, p. 340), but the amendment makes no material change in the law as to what must be done to vest power and jurisdiction in the city council to make the improvement attempted in ...