34 F.2d 357 (10th Cir. 1929), 38, Kansas City, Mo. v. Fairfax Drainage Dist. of Wyandotte County, Kan.

Docket Nº:38.
Citation:34 F.2d 357
Party Name:KANSAS CITY, MO. v. FAIRFAX DRAINAGE DIST. OF WYANDOTTE COUNTY, KAN. [1]
Case Date:July 29, 1929
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 357

34 F.2d 357 (10th Cir. 1929)

KANSAS CITY, MO.

v.

FAIRFAX DRAINAGE DIST. OF WYANDOTTE COUNTY, KAN. 1

No. 38.

United States Court of Appeals, Tenth Circuit.

July 29, 1929

Phillips, Circuit Judge, dissenting.

Page 358

Fred Robertson, of Kansas City, Kan., and J. C. Petherbridge, of Kansas City, Mo. (John T. Barker, of Kansas City, Mo., on the brief), for appellant.

William Drennan, of Kansas City, Kan., and T. M. Lillard, of Topeka, Kan. (W. C. Rickel and Joseph A. Lynch, both of Kansas City, Kan., on the brief), for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

Fairfax Drainage District of Wyandotte County, Kansas, organized under the laws of Kansas, brought this action in January, 1928, against Kansas City, Missouri, to recover $12,860.50, with accrued interest and penalties, assessed as special benefits by the drainage district on 54 acres owned by the city. The acreage lies along the bank of the Missouri River in Kansas, all within the drainage district. The complaint alleges that on the land so owned by Kansas City, Missouri.

'There is now and was at all times herein mentioned located the waterworks plant of Kansas City, Missouri. That this waterworks plant is at the present time the sole source of water supply for Kansas City, Missouri, and the cost of maintenance of said waterworks plant is paid by charges collected from consumers in proportion to the amount of water consumed.

'Plaintiff alleges that during the years 1923, 1924 and 1925, certain special improvements were made by the Fairfax Drainage District of Wyandotte County, Kansas, for the purpose of protecting said District and the lands contained therein from overflow from the Missouri River and for the purpose of preventing said lands in said District from being flooded by the surface water, and for the further purpose of furnishing drainage to that District.

'That said special improvements consist of the following, to wit:

'(a) A dyke extending around the said Drainage District on the north, east and south.

'(b) What is known as the foot hill ditches and laterals to prevent the surface water from the surrounding territory overflowing the lands in said District and for the purpose of carrying said water through said ditches into the Missouri River.

'(c) The construction of a sewer and laterals and pump house and equipment for the purpose of draining surface water from out of said District, and conveying the same into Jersey Creek and the Missouri River.

'That the cost of the above mentioned special improvements were assessed according to law, against the lands contained in said Drainage District, on an acreage basis. That the aggregate cost of all of said improvements amounted approximately to the sum of $1,074,812.58. That these costs were paid for by the issuance and sale of bonds of said Fairfax Drainage District, said bonds being serial bonds maturing over a period of twenty years from the date of their issue. That each year, beginning with the year 1923, there was certified to the county clerk of Wyandotte County, Kansas, by the Board of Directors of the said Fairfax Drainage District, an amount sufficient to pay the interest and the bonds falling due in that particular year. That these amounts were assessed equally upon all the lands lying within the said Fairfax Drainage District, on an acreage basis, including the lands owned by the defendant, Kansas City, Missouri, as hereinbefore described. That the Board of Directors of said Drainage District continued to certify said assessments to the said County Clerk for the years 1924, 1925, 1926 and 1927. That the defendant, Kansas City, Missouri, has failed, neglected and refused to pay its special assessments as aforesaid assessed against its property located within said District, and that there now is due to the Fairfax Drainage District from the defendant, Kansas City, Missouri, as shown by the tax records in the office of the County Treasurer, a sum aggregating $12,860.50, including interest and penalties as provided by law.'

The complaint was challenged by demurrer, on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled. Defendant objected and excepted to the order of the court overruling its demurrer, and declined to plead further; and thereupon the court, over defendant's

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objection and exception, entered judgment for plaintiff on the complaint for $12,048.50. Then this appeal was asked and allowed.

The chief point raised by the demurrer is the claim that a compact and agreement between the two States, made with the consent of Congress (Const. U.S. art. 1, Sec. 10), exempted defendant's property from the assessment, thus:

'Be it resolved by the Legislature of the State of Kansas, the Govenor concurring, that

'Whereas, The cities of Kansas in Wyandotte County, Kansas, and of Kansas City in Jackson County, Missouri, are contiguous and adjoining and each own and operate waterworks plants, the intake portions of which are on the banks of the Missouri River in Kansas City, Kansas, and contiguous to each other; and

'Whereas, For the protection of each city in the event of a breakdown of its plant, a conflagration, epidemic, or other exigency, it is vitally important that its water plant have connection with and access to the facilities of the other; and it is, and has been in the past, of material benefit to each city that both contribute to a common fund in protecting the banks of the Missouri River in the vicinity of said plants and further upstream from breaking over and destroying the plants, or changing its course so as to leave the intake so far from the stream as to render it impossible to obtain an adequate flow of water therefrom; and

'Whereas, The water plants of both cities are connected at various points so that they can, in the future as they have in the past, supply each other with water, thereby preserving the health and protecting the property of each; and

'Whereas, The plant of the City of Kansas City, Missouri, is now, and will of necessity continue to be for a long period in the future, the only source of water supply to the City of Rosedale, in Wyandotte County, Kansas, and the maintenance of this supply is of vital importance to the health and property protection of the citizens of said municipality; and

'Whereas, The contour of the territory of each city is such that, to reach and serve certain districts, it is necessary that portions of the service mains and plants occupy or run through the territory of the other State; and

'Whereas, Kansas City, Missouri, is about to invest many millions of dollars in the betterment of its plant in the immediate future, and the City of Kansas City, Kansas, will invest in the future large sums in extending its plant; said extensions of each municipality necessitate large investments in the territory of the adjacent state, and to raise the funds for the purpose of making these investments it is vital to each city that each plant be free from assessment and taxation in the other state:

'Now, Therefore, by reason of the advantages accruing to the municipalities of each state and the inhabitants thereof hereinbefore recited, and other advantages not herein enumerated, the states of Kansas and Missouri hereby enter into the following compact and agreement:

'(1) The State of Kansas, nor any county, township or municipality located within said state, or any official thereof shall ever assess, levy or collect any taxes, assessments or imposts of any kind or character whatsoever on the portion of the waterworks plant of the municipality of Kansas City, Missouri, now or hereafter located within the territory of the State of Kansas.

'(2) That the State of Missouri, nor any county, township or municipality located within said state, or any official thereof shall ever assess, levy or collect any taxes, assessments or imposts of any kind or character whatsoever on the portion of the waterworks plant of the municipality of Kansas City, Kansas, now or hereafter located within the territory of the State of Missouri.

'The right of eminent domain for the purpose of acquiring property, rights and easements for a waterworks plant, including mains, water pipe lines or extensions, or any part thereof, in either state, is hereby given and granted to each state and to Kansas City, Kansas, and Kansas City, Missouri, and may be exercised by Kansas City, Kansas, in the State of Missouri, and by Kansas City, Missouri, in the State of Kansas, for said purposes.

'To the faithful observance of this compact and agreement each state, by the adoption of this resolution, pledges its good faith.

'This compact and agreement shall be in force and take effect from and after its passage by the House and Senate, approval by the Governor of the State of Kansas, and publication in the official state paper, and its proper adoption and approval by the legislative and executive authority of the State of Missouri, and upon its receiving the consent of the Congress of the United States of America.

'Approved March 18, 1921.'

The resolution, set forth above, adopted

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by the Kansas Legislature and approved by the Governor on March 18, 1921, is identical in form with a resolution adopted by the Missouri Legislature and approved by the Governor on April 15, 1921. The Congress, by Joint Resolution approved September 22, 1922 (42 Stat. 1058), gave its consent to the compact and agreement. Prior thereto the supreme court of Kansas held, in State ex rel. v. Holcomb, 85 Kan. 178, 116 P. 251, 50...

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