Ruckels v. Pryor

• Decision Date: 06 July 1943
• Docket Number: No. 38159.,38159.
• Parties: C.A. RUCKELS ET AL., Appellants, v. JOHN J. PRYOR ET AL.
• Court: Missouri Supreme Court

174 S.W.2d 185

C.A. RUCKELS ET AL., Appellants, v. JOHN J. PRYOR ET AL.

No. 38159.

Supreme Court of Missouri.

Division One, July 6, 1943.

Rehearing Denied, July 20, 1943.

Motion to Transfer to Banc Overruled, October 4, 1943.

Appeal from Jackson Circuit Court. — Hon. Emory H. Wright, Judge.

REVERSED AND REMANDED (with directions).

I.N. Watson and Johnson & Garnett for appellants.

(1) The charter of Kansas City is a public act of which all courts take judicial notice. Art. XX, Sec. 488, Kansas City Charter; Kansas City v. Vineyard, 128 Mo. 75; In re Independence Avenue Boulevard, 128 Mo. 272; Fleshner v. Kansas City, 348 Mo. 978, 156 S.W. (2d) 706. (2) The issuance of special tax bills for the payment of public improvements is an exercise of the power of taxation involving a high degree of judgment and discretion upon the part of those who exercise it, and it can only be legally exercised by those upon whom it has been expressly conferred. Ruggles v. Collier, 43 Mo. 353; City of Nevada v. Eddy et al., 123 Mo. 546; Stewart v. City of Clinton, 79 Mo. 603. (3) The charter of Kansas City clothed the director of public works with power, judgment and discretion to initiate and carry through the essential proceedings upon which the bills must rest, and neither creates nor authorizes the creation of any other office for the exercise of that power. It was beyond the power of the City Council to create the office of Assistant Director of Public Works. Missouri Const., Art. IV, Sec. 53, Subsection 15; 2 McQuillin on Municipal Corps., secs. 443, 445, 472; 1 Dillon on Municipal Corporations (5 Ed.), secs. 237, 385; Kansas City v. Swope, 79 Mo. 46; Leach v. Cargill, 60 Mo. 316; State v. Butler, 178 Mo. 272; Joplin v. Leckie, 78 Mo. App. 8; Knapp v. Kansas City, 48 Mo. App. 485; St. Louis v. Bell Tel. Co., 96 Mo. 623; State v. Mackie, 82 Conn. 398, 74 Atl. 759; Benson v. Hines, 144 S.E. 287; Hoboken v. Harrison, 30 N.J.L.R. 73; McDonald v. Lane, 90 Pac. 181; 43 C.J. 598, sec. 975; Fluker v. Union Point, 132 Ga. 568, 64 S.E. 648; Peterson v. Town of Penora, 271 N.W. 317; Dabmun v. San Diego, 99 Pac. 983; State v. Kelly, 143 N.W. 153; Jacobs v. Elmira, 132 N.Y.S. 54; Van Fleet v. Walsh, 202 N.Y.S. 745; Fischer v. Mechanicsville, 157 N.Y.S. 518; Peters v. St. Louis, 226 Mo. l.c. 70. (4) The act of Hyland cannot be supported upon the theory that he acted as a de facto officer, because: There can be no de facto officer while the office is occupied by a de jure officer. 46 C.J. 1055; Mechem on Public Officers, sec. 322, p. 216; State ex rel. v. Dorton, 145 Mo. 204. (5) Nor can there be a de facto officer of a non-existent office. Ex parte Snyder, 64 Mo. 58; Jester v. Spurgeon, 27 Mo. App. 477; State v. O'Brian, 68 Mo. 153; Adams v. Lindell, 5 Mo. App. 197; Wessner v. Central Natl. Bank, 102 Mo. App. 668; State ex rel. Abbington v. Reynolds, 280 Mo. 446, 218 S.W. 334; Ayres v. Lattimer, 57 Mo. App. 78; Walker v. Phoenix Insurance Co., 62 Mo. App. 209; Norton v. Shelby County, 118 U.S. 425; State v. Gillette, 10 S.W. (2d) 984; Coyne v. State, 22 Ohio App. 262, 153 N.E. 876. (6) Hyland's acts cannot be supported upon the theory that he was delegated by, or acted on behalf of, the director of public works. State ex rel. v. Blake, 110 Fla. 181; People v. Van Wyck, 157 N.Y. 459, 52 N.E. 569; In re Weaver, 131 N.Y.S. 144; In re Fidelity Union Title & Mtg. Guaranty Co., 118 N.J. Eq. 155, 177 Atl. 449; State of Mississippi v. Johnson, 71 U.S. 475; Ruggles v. Collier, supra; St. Louis v. Clemens, 43 Mo. 395; St. Louis v. Clemens, 52 Mo. 133; Meill v. Gates, 152 Mo. 585; St. Louis v. Russell, 116 Mo. 248; St. Louis v. Howard, 119 Mo. 41. (7) A declaration of necessity by the director of Public Works is a jurisdictional prerequisite to the ordinance of the City Council authorizing the issuance of tax bills. Jones v. Paving Co., 174 Mo. App. 393; American Tobacco Co. v. St. Louis, 247 Mo. 374; Nevada v. Eddy, 123 Mo. 546; Smith v. Westport, 105 Mo. App. 221. (8) Hyland had no power to create a joint sewer district, and the ordinance, passed after the contract was let, could not validate Hyland's illegal act. See authorities under (2) and (3), supra; Dickey v. Holmes, 109 Mo. App. 721. (9) The evidence conclusively establishes the fact that the contract and tax bill were the result of an illegal combination and conspiracy designed and intended to control the letting of all contracts for public improvements in Kansas City, including the contract in suit, and, for that reason, are fraudulent and void. Kneegle v. Milling Co., 113 S.W. (2d) 817; Browning v. Browning, 226 Mo. App. 322, 41 S.W. (2d) 860; Brueckle v. Pecham, 21 S.W. (2d) 903; Kirby v. Davis, 91 S.W. (2d) 215; Sec. 3349, R.S. 1939; United States v. Pan American Petroleum Co., 6 Fed. (2d) 43; United States v. Pan American Petroleum Co., 273 U.S. 498; Trist v. Child, 21 Wall. 441; Morgan v. Cove, 275 Pac. 415; First Natl. Bank of Monett v. Wilson, 222 S.W. 381; State v. Bersch, 276 Mo. 397, 207 S.W. 809.

Calvin & Kimbrell for respondents.

(1) The appeal herein, and also this cause, should be dismissed by this court, because and for the reasons: (a) That the appellants, as plaintiffs below, had no legal right or capacity to maintain this action, as they were not parties in interest within the purview and meaning of Section 849, Revised Statutes of Missouri, 1939; (b) That the appellants, as plaintiffs below, and as the appellants here, could not, legally, have been aggrieved by the judgment and decision of the court in this cause; nor are they, upon this appeal, a "party to a suit aggrieved," within the meaning and purview of Section 1184, Revised Statutes of Missouri, 1939; and, (c) That, inasmuch as it was shown, upon the trial of this cause, by the witness, John H. Frew, Secretary of J.J. Pryor Construction Company, that, on September 16, 1941, the date upon which he was testifying therein, that the sum of $59,377.81 had, theretofore, been paid upon the aforesaid special tax bills, leaving as the total face amount then due and owing thereon, the sum of $72,637.81; and, since it was not shown, upon the trial of this cause, nor does the record herein disclose, that the special tax bills, which had been issued against the property of the plaintiffs below, the appellants here, were not among those which had been paid prior to September 16, 1941, then, regardless of the provisions of the aforesaid statutes, the appellants here, who were the plaintiffs below, are not entitled to maintain this appeal since, upon the record here, they are not shown to have any material interest in the subject matter of this action. Secs. 849, 1184, R.S. 1939; Love v. White, 154 S.W. (2d) 759. (2) The acts of N.W. Hyland, as Assistant Director of Public Works of Kansas City, Missouri, while publicly holding such office, after the same had been created by ordinance passed by the Common Council of Kansas City, Missouri, claiming to be Assistant Director of Public Works, acting under color of authority and openly exercising the functions of the office were valid and binding upon all parties to this action, the public generally, and third parties, and are not subject to collateral attack. State v. Rich, 20 Mo. 393; Harbaugh v. Winsor, 38 Mo. 327; State v. Douglass, 50 Mo. 593; Franklin Avenue German Savs. Institute v. Board of Education, 75 Mo. 408; Wilson v. Kimmel, 109 Mo. 260, 19 S.W. 24; State v. Miller, 111 Mo. 542, 20 S.W. 243; Perkins v. Fielding, 119 Mo. 149, 24 S.W. 444; In re Oak Street, 308 Mo. 494, 273 S.W. 105; Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W. (2d) 834; State ex rel. City of Clarence v. Drain, 335 Mo. 741, 73 S.W. (2d) 804; State ex rel. City of Republic v. Smith, 345 Mo. 1158, 139 S.W. (2d) 929; Hilgert v. Barber Asphalt Co., 107 Mo. App. 385, 81 S.W. 496; 43 C.J. 640, sec. 1054. (3) Points (1)-(8) of appellants' Points and Authorities constitute and are collateral attacks upon the official acts of N.W. Hyland, Assistant Director of Public Works of Kansas City, Missouri, and cannot be maintained by the plaintiffs. Authorities cited under Point (2). (4) The existence of an office de jure is not a prerequisite to the existence of a de facto officer under the law of Missouri. State v. Douglass, 50 Mo. 593; Adams v. Lindell, 72 Mo. 198; approving in toto the decisions in State ex rel. v. Sutton, 3 Mo. App. 388; Adams v. Lindell, 5 Mo. App. 197; Perkins v. Fielding, 119 Mo. 149, 24 S.W. 444; City of Boonville v. Stephens, 238 Mo. 339, 141 S.W. 1111; Fleming v. Mulhall, 9 Mo. App. 71; Simpson v. McGonegal, 52 Mo. App. 540; Hilgert v. Barber Asphalt Paving Co., 107 Mo. App. 385, 81 S.W. 486. (5) Until it has been adjudicated, by the judicial authority of this state, that the Common Council of Kansas City, Missouri, under its Charter, did not have the power or authority to create the office of Assistant Director of Public Works; and, that Ordinance No. 3850, attempting to create such office, was invalid, it should be held that the official acts of N.W. Hyland, as Assistant Director of Public Works, with reference to the construction of the second section of Brookside sewer, were acts of a de facto officer, and that such acts were, and are, presumably valid; and, such should be the holding of this court, even though it be granted (which the respondents vigorously deny) that the Common Council did not have the power or authority, under the Charter, to create the office of Assistant Director of Public Works. State v. Douglass, 50 Mo. 593; Wiles v. Williams, 232 Mo. 56, 133 S.W. 1; State ex rel. v. Johnston, 234 Mo. 338, 137 S.W. 595; State v. Carroll, 38 Conn. 449; State v. Poulin, 104 Me. 224, 74 Atl. 119, 24 L.R.A. (N.S.) 408; Lang v. Mayor of City of Bayonne, 74 N.J.L. 455, 68 Atl. 90, 15 L.R.A. (N.S.) 93; State ex rel. Tamminen v. City of Eveleth, 189 Minn. 229, 249 N.W. 84, 98 A.L.R. 294; Michigan City v. Brossman, 105 Ind. App. 259, 11 N.E. 538; Wendt v. Berry,...