Kansas City v. Bacon

Decision Date23 December 1898
PartiesKansas City v. Bacon et al., Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Affirmed.

F. M Black, Warner, Dean, Gibson & McLeod, R. H. Field, Johnson & Lucas, Brown, Chapman & Brown, Ess & Georgen and Langston Bacon for appellants.

(1) The act of the legislature of first of April, 1893, (Acts of 1893, p. 43), should prevail instead of the park amendment of sixth of June, 1895. Ewing v. Hoblitzelle, 85 Mo 76; State ex rel. v. Railroad, 117 Mo. 1; State ex rel. v. Field, 99 Mo. 352; Davies v. Los Angeles, 86 Cal. 39. (2) Special taxes must be assessed in exact accordance with the rule prescribed by the law whether the rule be that of frontage, area, value of the property assessed, or according to benefits. Hays v. Douglass Co., 92 Wis. 429; Limbermann v. Milwaukee, 89 Wis. 336; State ex rel. v. Mayor, 88 Wis. 599; State v. Hudson, 29 N. J. L. 104; State ex rel. v. Mayor, 38 N. J. L. 410; Dillon on Mun. Corps. [4 Ed.], sec. 769. (3) Substantial benefits should have been assessed against the city. State ex rel. v. Brill, 58 Minn. 152; Dillon on Mun. Corps. [4 Ed.], sec. 761; Kansas City v. Morton, 117 Mo. 446. (4) The jury did not assess benefits to property in the assessment district according to actual benefits, but they assessed the same arbitrarily on the basis of the assessed value of the property. (5) Benefits to property of the city should have been included in the assessment of benefits to the city at large. Section 15 of the charter amendment; Extension of Church Street, 49 Barb. 455; Scammon v. Chicago, 42 Ill. 192. (6) Property exempt from general taxation is not exempt from local assessments. Sheehan v. Hospital, 50 Mo. 156; Farrar v. St. Louis, 80 Mo. 379; State v. City of Kansas, 89 Mo. 36; City to use v. Eddy, 123 Mo. 546. (7) Railroad rights of way should have been assessed with benefits. Elliott on Roads and Streets, p. 403; Railroad v. Decatur, 147 U.S. 190; s. c., 126 Ill. 92; Railroad v. Moline, 158 Ill. 64; Railroad v. Kankakee, 164 Ill. 608. (8) The failure to assess church, school and railroad property with benefits is error for which the judgment must be reversed. Scammon v. Chicago, 42 Ill. 192; Chicago v. Baer, 41 Ill. 306; Parmelee v. Chicago, 60 Ill. 267; Dyer v. Harrison, 63 Cal. 447. (9) The jury in this case was not a common law jury, and hence the jurors were competent witnesses to show how and on what theory of law and fact they made up their verdict. Bank v. Mayor, 9 Wend. 244; Railroad v. Probate Judge, 53 Mich. 217; Railroad v. Suydam, 17 N. J. L. 25. (10) The evidence of Scarritt, to which objections were made, should have been excluded. (11) General benefits are such as accrue to all the members of the community and such as attach alike to all property. Special benefits are those which the property in a limited district receives in addition to those received by the community at large -- they can be special only when they enhance the value of the particular property. Neenan v. Smith, 50 Mo. 529; Kansas City v. Morton, 117 Mo. 446; Dillon on Mun. Corps. [4 Ed.], sec. 761. (12) The question whether a given tax is one for a purpose general or local in its character is a question which the courts will determine for themselves, and this too without regard to the name by which it may be called or any declaration of the tax levying power; and a special tax for objects which are general is void. Chicago v. Blair, 149 Ill. 310; State ex rel. v. Leffingwell, 54 Mo. 469; Wells v. Weston, 22 Mo. 384. (13) The courts have the power to declare assessments void when they are unequal, unjust, oppressive or unreasonable. Haplin v. Campbell, 71 Mo. 493; Corrigan v. Gage, 68 Mo. 541. (14) Notwithstanding the overwhelming and uniform evidence noted in this case, that the proposed park is intended for the general public of Kansas City, no more for the use of the real estate owners and their tenants of the benefit district than for other people of the city, and that it will be of no more benefit to the real estate in this district than the general benefit to that in the remaining two thirds of the limits of the city, except to the few blocks in the immediate vicinity of this park, the city is assessed only the nominal sum of $ 1 therefor, and the remaining cost of the same, over $ 600,000, is assessed against the real estate owned by private parties in the one district, and according to its assessed value for general taxing purposes and wholly without regard to whether the charged benefits to the real estate in the district represents the actual or special benefits that it will realize from the proposed park that will not be enjoyed by the lands in the city outside of this district. The ordinance required the whole cost to be assessed against the real estate in this district. Surely in such conditions, as between the real estate owners in this district and those outside of it in this city receiving the same general benefit, the verdict and judgment in this case are an unwarranted and prohibited discrimination and violative of that part of section 1, of the 14th article of the Constitution of the United States which forbids any state to "deny to any person within its jurisdiction the equal protection of the laws." This provision is not only a limitation upon a whole State but it is also a limitation upon every municipal subdivision of a State and upon the manner in which laws are enforced by them, as well as a limitation upon state legislative powers in the enactment of laws, and on appeal from the Supreme Court of the State the Supreme Court of the United States will scrutinize the record in the case as closely to see that the rights guaranteed by this provision of the Federal constitution have been respected by the court and jury that tried the issue, as if it were considering a legislative act of a State charged to be in violation of the same provision. Railroad v. Chicago, 166 U.S. 226.

C. O. Tichenor, D. J. Haff, C. S. Palmer and R. B. Middlebrook for respondent.

(1) The people of Kansas City are alone authorized to amend its charter. Kansas City ex rel. v. Scarritt, 127 Mo 642; Kansas City v. Ward, 134 Mo. 172; Kansas City v. March Oil Co., 140 Mo. 458; Kansas City ex rel. v. Field, 99 Mo. 352. (2) Use of land for a park is a public use and a local improvement, justifying special assessments against private property benefited to pay compensation therefor. Kansas City v. Ward, 134 Mo. 172; Shoemaker v. U.S. 147 U.S. 302; Owners of Ground v. Mayor, 15 Wend. 376; Holt v. City Council, 127 Mass. 413; Foster v. Park Comm., 133 Mass. 338; Matter of Comm. Central Park, 63 Barb. 282; State v. Dist. Court, 33 Minn. 235; Kedzie v. West Chicago Park Comm., 114 Ill. 280; Brooklyn Park Comm. v. Armstrong, 45 N.Y. 234; Briggs v. Whitney, 34 N.E. 179; Briggs v. Whitney, 159 Mass. 97; People v. Brislin, 80 Ill. 423; Dunham v. People, 96 Ill. 331; R. S. of Ill. 1874, chap. 105, p. 733. (3) The quantity of land to be taken for public use is not a judicial, but a legislative question. U. S. v. Railroad, 160 U.S. 669; Kansas City Grading Co. v. Holden, 107 Mo. 310; Kansas City v. Morton, 117 Mo. 453; City of Kansas v. Baird, 98 Mo. 221; Kansas City v. Smart, 128 Mo. 294. (4) The determination as to whether private property within the benefit district is specially benefited and the amount of such benefits are mere questions of fact for the jury. City of Kansas v. Baird, 98 Mo. 215; Kansas City v. Morton, 117 Mo. 446; Shoemaker v. U.S. 147 U.S. 306; Mills on Eminent Domain, 246; Owners of Ground v. Mayor, 15 Wend. 377; Matter of Extension of Church Street, 49 Barb. 455. (5) Constitutional restrictions relating to revenue and taxation have no application to special assessments for local improvements. Farrar v. St. Louis, 80 Mo. 387; St. Joseph to use v. Owen, 110 Mo. 453; City of Clinton ex rel. v. Henry Co., 115 Mo. 565; Lamar Water and Electric Light Co. v. Lamar, 128 Mo. 218. (6) The methods pursued by the jury are in accordance with the charter and are constitutional. Garrett v. St. Louis, 25 Mo. 513; Kansas City Grading Co. v. Holden, 107 Mo. 305; Kansas City v. Ward, 134 Mo. 186; Kansas City v. Baird, 98 Mo. 215. (7) Powers of the common council of Kansas City are not infringed by the duties and powers imposed upon the park commissioners. The powers exercised by the park commissioners are administrative and not legislative. Kansas City v. Ward, 134 Mo. 186; Kansas City v. Marsh Oil Co., 140 Mo. 458; St. Louis v. Gleason, 93 Mo. 33; s. c., 15 Mo.App. 30. (8) It is no objection to the verdict of the jury that only $ 1 was assessed against the city. Kansas City v. Smart, 128 Mo. 274; Cooley on Taxation [2 Ed.], 164; Kansas City v. Holden, 107 Mo. 312. (9) The verdict of the jury is in harmony with the expert testimony given by nearly all, if not all, the witnesses. (10) An appellate court will not interfere with the verdict of a jury of commissioners except in cases of gross error showing prejudice or corruption. Shoemaker v. U.S. 147 U.S. 306; Railroad v. Richardson, 45 Mo. 468; St. Louis v. Lanigan, 97 Mo. 178. (11) The jury had no authority to assess property within the benefit district which they did not deem benefited, nor does the charter contemplate that all property within the benefit district may necessarily be benefited. Kansas City v. Morton, 117 Mo. 453; City of Kansas v. Baird, 98 Mo. 220. The assessment of railroad rights of way with benefits would have been illegal and not enforcible. City to use v. Eddy, 123 Mo. 563; Sweany v. Railroad, 54 Mo.App. 265; Philadelphia v. Philadelphia, W. B. & R., 33 Pa. 41; In re Comm. Central Park, 63 Barb. 286; Bridgeport v. Railroad, 36 Conn. 255; Muscatine v. Railroad, 88 Ia. 291;...

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