Sierk v. Reynolds

• Decision Date: 24 August 1972
• Docket Number: No. 9151,9151
• Citation: 484 S.W.2d 675
• Parties: Jack L. SIERK, Plaintiff-Respondent, v. Charles S. REYNOLDS, Defendant-Appellant, and Sally K. Rice et al., Defendants.
• Court: Missouri Court of Appeals

Page 675

484 S.W.2d 675

Jack L. SIERK, Plaintiff-Respondent, v. Charles S. REYNOLDS, Defendant-Appellant and Sally K. Rice et al., Defendants.

No. 9151.

Missouri Court of Appeals, Springfield District.

Aug. 24, 1972.

Charles C. Shafer, Jr., Howard Chamberlin, Kansas City, for defendant-appellant.

Wayne T. Walker, Walker & Salveter, Springfield (Mayte Boylan Hardie, Springfield, on the brief), for plaintiff-respondent.

HOGAN, Judge.

This is a suit on a special tax bill issued by the City of Springfield, a constitutional charter city, against the property of defendant Charles S. Reynolds for the cost of constructing sanitary sewers. Trial to the court has resulted in a judgment in favor of the plaintiff and against the defendants, and defendant Charles Reynolds has appealed.

The appellant, to whom we shall refer as the defendant, owns a tract of land (approximately 27 acres) located in a predominantly industrial area in the northwest part of the City of Springfield. Early in 1966, inferably in response to some request or petition, the city directed its city manager and its Public Works Department to prepare a preliminary report in connection with the construction of sanitary sewers 'in the area of but not restricted to' property located on both sides of the St. Louis-San Francisco Railway between East Trafficway and Blaine Street. On April 11, 1966, the council received a report on the investigation it had ordered. By resolution the council found the report acceptable and directed its Public Works Department 'to proceed with such engineering as may be necessary in order to prepare plans and specifications for the construction of sewers in this area.' On June 20, 1966, the city manager was authorized to enter into a 'pipe line contract or contracts' with the St. Louis-San Francisco Railway in order to facilitate the construction of the sewers. On July 5, 1966, the city by ordinance redefined the boundaries of its Joint Sanitary Sewer District No. 121 of Section No. 2 of the main sewers to include defendant's property. On August 15, 1966, by resolution the city declared it necessary to construct joint sanitary sewers in Joint Sanitary Sewer District No. 121. This resolution: 1) stated the necessity for construction; (2) stated the proposed method of payment; 3) referred specifically and by number to plans, specifications and an estimate of cost on file; 4) provided that all costs of construction, including incidental costs, were to be paid by special tax bill issued against all the property in the joint sewer district 'in proportion to the square footage of said property,' and 5) provided that notice of the resolution be given by publication and by posting. No question was raised in the trial court, nor is any raised here, concerning the propriety of declaring the work necessary by resolution, nor is the sufficiency of publication in issue.

Defendant's evidence was that on the day this resolution was passed, the attempted to file a remonstrance, but was not allowed to do so because the remonstrance was not notarized. The defendant then either prepared or had prepared a second protest in writing, which is as follows:

'We, the undersigned, represent parties of Joint Sanitary Sewer District No. 121 of Section 2 in the City of Springfield, Missouri. We again petition the city council to remove us from the sewer district. Most of us have spent many years of our lives in the present district. Some of our acreages have been in our families for generations.

'Our acreages have been annexed by the city, zoned industrial, and now have proposed against them a levy, a special tax to pay for joint sanitary sewers to service the new factories recently or now being built in the sewer district.

'The proposed Estimate of Cost No. 3341--S on file in the office of the Director of Public Works of Springield, Missouri is in excess of $100,000. Allocation of the tax by proportion of all (sic) acreage in the district means residents will pay a large proportion of the construction cost. Such a tax is an undue, unfair financial burden upon residents.

'The city council has declared the construction of the proposed sewer necessary in its August 15, 1966 meeting. The sewer may be necessary for factories--but it is not necessary for residents. Most residents already have septic tanks.

'It is unethical to twist the present law which was designed for residential areas with small lots to our unsubdivided acreages. For this reason we again petition the city council to remove us from the burden of paying for sewers we don't need and for which we are not ethically liable.'

This remonstrance is signed by Charles S. Reynolds, Beatrice Reynolds, John M. Reynolds, Elizabeth Mason, Sherman Bradley, Gladys I. Bradley, Ronald G. Rice, Sally K. Rice, Bonny Loftis, Doin Loftis, Anthony J. Kaisler, Erma E. Kaisler, Milton G. Smart, Betty L. Smart, Ada J. Reynolds, Madge Cunningham and Roy E. Reynolds. According to defendant's testimony, only four of the signatories owned property in the redefined joint sewer district. Others, unspecified, were identified as occupants of rent homes and mortgagees.

The defendant further testified that he attended the August 22, 1966 meeting of the Springfield City Council and filed the quoted remonstrance. 'Very little was said', but '(t)here was hands raised.' None of the remonstrators addressed the council, because, as defendant put it, '(w)e had our petition over there to state our cause.' The defendant raised his hand against the sewer, because he 'didn't want to hold back progress', but 'wanted to be taken out of the district'.

On August 29, 1966, the city council by ordinance adopted the specific plans and cost estimate prepared by its Director of Public Works, again declared it necessary for sanitary purposes to construct joint sanitary sewers in Joint Sanitary Sewer District No. 121, and provided that all costs of construction were to be paid by special assessment levied against all the property in the district. The ordinance further provided for the issuance of special tax bills payable in five equal annual installments. On September 12, 1966, the city accepted the bid of the Hedges Construction Company to construct the sewers and authorized its city manager to enter into a contract for their construction.

On September 16, 1966, the defendant and four other landowners whose land had been included in the redefined joint sewer district filed an action in the Circuit Court of Greene County, seeking to enjoin the city from including their tracts in the redefined district. Defendants and others as plaintiffs alleged, among other things, the existence and corporate capacity of the city; the definition or redefinition of the boundaries of the joint sewer district and the inclusion of plaintiffs' property therein the resolution by the city that construction of sewers was necessary and that the proposed estimate of cost was in excess of $100,000. Plaintiffs recited their filing of a remonstrance and alleged that they were never afforded a hearing on it; they further alleged that they had been informed that the sewer would be paid for by levy of a special assessment, and that the proposed levy was $.0084 per square foot. The plaintiffs further averred that officials of the city had advised them that their properties could be excluded from the joint sanitary sewer district, but had refused to do so; that the construction of sanitary sewers as proposed was in fact existing, adequate and properly functioning existing, adequate and proeprly functioning septic tank, and that the city's action in including plaintiffs' properties was oppressive because of its cost, and was capricious, unreasonable, and discriminatory in that the sole purpose for the construction of the sewers was to serve industrial users thereof at an unreasonable cost to the plaintiffs. Plaintiffs prayed the court to enjoin the city from including them in the joint sanitary sewer district and for general equitable relief. Upon the city's motion, this petition was dismissed after oral argument for failure to state a claim upon which relief could be granted, as provided by Rule 55.33. ¹ Plaintiffs filed an amended petition, in substance the same as the first, except that the prayer of the petition was to require the city to contribute to the cost of construction, and this petition was also dismissed for failure to state a claim upon which relief could be granted. No appeal was taken from the order dismissing the amended petition.

Thereafter, construction of the sewers was completed and on February 22, 1967, the city levied a special assessment against all the property in the district to cover the cost of construction. Defendant was assessed the sum of $7,400.70 and the special tax bill here in controversy was issued on February 26, 1967. It was assigned for value to Mr. Sierk, the plaintiff in this action. No payment was made upon the bill, and on April 28, 1970, this action was commenced. As noted, the case was tried to the court sitting without a jury, but no findings of fact were requested and the case was decided without any indication of the theory upon which the trial court acted. We therefore take the appeal as presented, but must affirm the judgment if it is correct on any theory supported by the pleadings and the evidence. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318(12); Lossing v. Shull, 351 Mo. 342, 351, 173 S.W.2d 1, 5(1); McIntosh v. White, Mo.App., 447 S.W.2d 75, 78(5).

The defendant's principal point in this court is that the city's assessment was wholly void, and the tax bill sued upon is therefore invalid, because the city did not follow and comply with its charter provisions concerning public improvements. The charter provisions specifically in issue are Sections 10.5, 10.6 and 10.7 of the Springfield City Charter as amended in 1955. They are set out verbatim marginally. The defendant's position, as we follow his brief and...