Shackleford v. City of Jefferson

• Decision Date: 11 November 1912
• Citation: 150 S.W. 1123,167 Mo.App. 59
• Parties: D. W. SHACKLEFORD, Respondent, v. CITY OF JEFFERSON, Appellant
• Court: Kansas Court of Appeals

150 S.W. 1123

167 Mo.App. 59

D. W. SHACKLEFORD, Respondent, v. CITY OF JEFFERSON, Appellant

Court of Appeals of Missouri, Kansas City

November 11, 1912

Appeal from Cole Circuit Court.--Hon. John M. Williams, Judge.

AFFIRMED.

Judgment affirmed.

James H. Lay for appellant.

D. W Shackleford for respondent.

OPINION

BROADDUS, P. J.

--Injunction. The plaintiff's suit is to restrain the defendant city from changing the grade in two blocks on Monroe street between Miller and Elm streets. The petition alleges that the grade of the street was established by ordinance in 1903; that in June, 1906, the city council passed an ordinance changing the established grade of said street; and again in September, 1908, the city council passed another ordinance changing the established grade of said street.

It is alleged that both of said ordinances are null and void because at the time of their passage and approval "all of the owners of real property fronting upon said part of said Monroe street had not consented to the change of grade, and proceedings had not been instituted as provided by law for ascertaining and determining the damages resulting from said change;" that defendant is about to cause said part of said street to be brought to the grade as established by ordinance last named, and to pay the costs of the same out of the revenues of said city of Jefferson; that such expenditures would be unlawful and result in an increase of the burdens of taxation upon the taxpayers of said city; and that they are without any adequate remedy at law.

Plaintiff, as a taxpayer, on behalf of himself and others similarly situated, prays that the two ordinances be declared void, and that the city be forever restrained from expending any portion of the revenues of said city for the purpose of bringing any part of said street to the grade as established by the ordinance of September, 1908.

The defendant city filed a demurrer to the petition, which the court overruled. The defendant, declining to further plead, the court rendered judgment as prayed for, declaring that said ordinances were not legally enacted and, therefore, invalid; and enjoined the city from improving said street under the provisions of either of said ordinances. The city appealed.

The law applicable to cities of the third class is as follows Section 5861, R. S. 1899, now section 9258, R. S. 1909, provides, among other matters, that "when the grade of any street or alley shall have been once established by ordinance, it shall not be lawful to change such grade without making compensation to all persons owning real estate on such street . . . who...