Sills v. Missouri Securities Corporation

• Decision Date: 03 March 1928
• Docket Number: No. 25944.,25944.
• Parties: A.M. SILLS, KATHERINE J. SHARP, R.L. YANCY, ERNEST E. SMITH, SAMUEL J. BROWN, FINDLAY-MARLBOROUGH REALTY COMPANY, GUY W. HINSEN, CORA B. O'REILLY and KATE R. CLARK, Appellants, v. MISSOURI SECURITIES CORPORATION, STANDARD INVESTMENT COMPANY and ELBERT A. READ.
• Court: Missouri Supreme Court

5 S.W.2d 389

A.M. SILLS, KATHERINE J. SHARP, R.L. YANCY, ERNEST E. SMITH, SAMUEL J. BROWN, FINDLAY-MARLBOROUGH REALTY COMPANY, GUY W. HINSEN, CORA B. O'REILLY and KATE R. CLARK, Appellants, v. MISSOURI SECURITIES CORPORATION, STANDARD INVESTMENT COMPANY and ELBERT A. READ.

No. 25944.

Supreme Court of Missouri, Division One.

March 3, 1928.

Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.

AFFIRMED.

A.N. Gossett and Watson, Gage & Ess for appellants.

(1) There is no misjoinder of parties plaintiff in the petition, inasmuch as the plaintiffs have a common interest in the questions of law and fact involved in the controversy and in the kind and form of relief demanded. Newmeyer v. Railroad, 52 Mo. 81; Briemeyer v. Star Bottling Co., 136 Mo. App. 84; Harris v. Langford, 277 Mo. 527; Stocke v. Edwards, 295 Mo. 402; Story's Equity Pleading (10 Ed.) sec. 271; 1 Pomeroy's Eq. Jurisprudence (3 Ed.), sec. 269. (2) The petition is not demurrable by reason of misjoinder of parties defendant, because plaintiffs base their claim to equitable relief against the several defendants upon one general right, as to which all of the defendants have a common defense. Perkins v. Baer, 95 Mo. App. 70; Donovan v. Dunning, 69 Mo. 436; Waddell v. Waddell, 99 Mo. 338. (3) Where the object of a bill in equity is single and seeks to enforce one general right, it is not multifarious although the plaintiffs and defendants may have different and distinct interests with reference to the questions litigated. Perkins v. Baer, 95 Mo. App. 70; Boggess v. Boggess, 127 Mo. 305; Jacobs v. Cawthorn, 293 Mo. 527; 21 C.J., 311, 316, 416. (4) The action of the Common Council and Board of Public Works set out in the petition was without authority of law, and for that reason the tax bills issued pursuant thereto, casting a cloud upon the title of plaintiffs to the property described, are illegal and void, and the petition states a cause of action against the defendants and each of them. Charter 1908, secs. 7 and 8, art. 8; McGhee v. Walsh, 249 Mo. 266; Herman Const. Co. v. Lyon, 277 Mo. 628; McMurray v. Kansas City, 223 S.W. 615. (5) Assessments for the cost of a single improvement constructed by sections are unlawful where the sectional construction renders the assessments disproportionate as to property within the benefit districts. Eyerman v. Hardy, 8 Mo. App. 311; Weber v. Schergens, 59 Mo. 389; Newman v. Smith, 50 Mo. 525; Dunker v. Stiefel, 57 Mo. App. 379; Nelson v. Chicago, 63 N.E. 738. (6) The procedure set forth in the petition followed by the city authorities, whereby large areas of benefited property within the natural drainage area of the sewer under construction were arbitrarily and without warrant of law eliminated from the joint sewer district and thereby relieved from assessment, throwing the whole burden of this taxation on plaintiffs' properties, deprives appellants of their property without due process of law and denies to them equal protection under the law and equal privileges and immunities under the law, all in violation of the Fourteenth Amendment of the Constitution of the United States. Norwood v. Baker, 172 U.S. 284; Gast Realty Co. v. Schneider Granite Co., 240 U.S. 55; Houck v. Little River Drainage Dist., 239 U.S. 554; Kansas City So. Ry. Co. v. Road Imp. Dist. 256 U.S. 658; Myles Salt Co. v. Iberia Drain. Dist., 239 U.S. 478.

Fyke & Hume and Clarence S. Palmer for respondents.

(1) The petition was fatally defective on demurrer because of misjoinder of plaintiffs and defendants and because of misjoinder of causes of action. No alleged cause of action was set out in favor of some of the plaintiffs against some of the defendants. It is not proper to unite in the same petition alleged causes of action arising from the act of the Common Council under four different ordinances, passed at different times. Sec. 1153, R.S. 1919; Priddy v. Mackenzie, 205 Mo. 181; Sec. 1221, R.S. 1919; Beattie Mfg. Co. v. Gerardi, 166 Mo. 142. (2) The failure to include sewer districts 488 and 489 in any of the joint sewer districts, does not render the special tax bills invalid. The petition fails to allege any facts regarding the relation of these districts to those which were included which would convict the Common Council of fraudulent, oppressive or arbitrary action. Barber Asphalt Paving Co. v. Field, 194 U.S. 624; Mt. St. Mary's Cemetery Assn. v. Mullins, 248 U.S. 501; Prendergast Const. Co. v. Goldsmith, 273 Mo. 184; Goldsmith v. Const. Co., 252 U.S. 12; Neil v. Ridge, 220 Mo. 233. (3) The Charter authorizes the Common Council to unite sewer districts into different joint sewer districts from time to time as the occasion arises. The limitation in Sec. 7, Art. 8, on changing a sewer district after district sewers have been constructed therein does not apply to Sec. 8, Art. 8, authorizing the creation of joint sewer districts. Collins v. Jaicks, 279 Mo. 404; Prior v. Construction Co., 170 Mo. 439; McGhee v. Walsh, 249 Mo. 283; Johnson v. Duer, 115 Mo. 366; South Highland Land & Imp. Co. v. Kansas City, 172 Mo. 523; Heman Const. Co. v. Lyon, 277 Mo. 628. (4) The Common Council, in its discretion, had the right to provide for the creation of four separate joint sewer districts and construct four separate joint district sewers. In determining the districts to be included in the successive joint sewer districts the Common Council had no right to include sewer districts which could not receive benefits from the joint district sewer to be constructed. There is no allegation in the petition of any fact showing that any of the districts omitted in any of the ordinances would or could be benefited by the joint district sewer provided for thereby. Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478; McGhee v. Walsh, 249 Mo. 266; Skinker v. Heman, 148 Mo. 349; South Highland Land & Imp. Co. v. Kansas City, 172 Mo. 523; Prior v. Construction Co., 170 Mo. 439; Heman Const. Co. v. Lyon, 277 Mo. 628.

ATWOOD, J.

This is a suit in equity to cancel certain special tax bills issued by Kansas City, Missouri, in payment for the construction of four joint district sanitary sewers in Sewer Division Number 5, in Kansas City, Missouri, under four different ordinances. The defendants filed separate demurrers alleging in common that the petition did not state facts sufficient to constitute a cause of action, and that there was a misjoinder of causes of action. The trial court sustained all the demurrers upon the single ground that the petition failed to state a cause of action against any of the defendants. Plaintiffs declining to plead further, final judgment was rendered against them from which they have appealed. The amount alleged to be in dispute gives us jurisdiction.

Plaintiffs' petition is in two counts. The first count challenges the validity of the tax bills as a whole, and the relief sought is a decree holding them invalid, providing for their proper cancellation, and enjoining the prosecution or commencement of any suit or suits thereon. The second count seeks a pro tanto cancellation of said tax bills because of the alleged omission from the assessment of various tracts of land properly within the benefit area of the improvement in payment for which the tax bills in question were issued, and for corresponding injunctive relief.

The first count of the petition alleges that the Board of Public Works of Kansas City, Missouri, on or about August 3, 1917, adopted Resolution No. 7647 recommending the construction of a joint district sewer which should extend from a point in the Paseo from the center of 66th Street to an outlet constructed under Ordinance Number 13959; that due publication thereof was made, bids were received, and contract for the construction thereof was awarded to one Michael Walsh for $165,188; and that thereafter said board rescinded said contract, and no joint district sewer was ever constructed under said resolution. The petition further alleges that plaintiffs are severally the owners of certain tracts of land therein described; that defendant Elbert A. Read is the owner of two series of special tax bills for the construction of joint district sewers, one series under Ordinance Number 32305, approved February 21, 1918, the other series under Ordinance Number 32488, approved March 21, 1918; that defendant Missouri Securities Corporation is the owner of tax bills issued for joint district sewer constructed under Ordinance Number 33133, approved June 25, 1918; and that defendant Standard Investment Company is the owner of tax bills issued for joint district sewer under Ordinance Number 39183, approved December 2, 1920.

It further appears from the petition and exhibits thereto annexed that Ordinance Number 32305, enacted pursuant to Resolution Number 7964, provided for the construction of a joint district sewer extending "from a point north from 55th Street to an outlet in a joint district sewer constructed under Ordinance No. 13959, approved Sept. 15, 1912," to be known as "Section No. 1, Town Fork Sewer," composed of sewer districts numbered 403, 407, 366, 367, 457, 458, 459, 460, 463 to 480 both inclusive, 484 and 485, and the construction cost thereof was levied against the real estate in said district at the rate of $.0007395421 per square foot, tax bills being issued against said property in the sum of $80,912.37; that Ordinance Number 32488, enacted pursuant to Resolution 7965, provided for the construction of a joint district sewer "the course of which was generally from a point easterly in 60th Street from a point west of Prospect Avenue" to an outlet in the sewer constructed under above Ordinance 32305, to be known as "Sec. 2, Town Fork Sewer," composed of the same sewer districts as those numbered in Ordinance Number 32305, except sewer districts numbered 477 and 478, which were omitted, and the construction cost thereof was levied against the real estate in said district at the rate of $.00090207 per...