Fidelity Nat. Bank & Trust Co. v. Swope

• Decision Date: 17 November 1924
• Docket Number: No. 6136.,6136.
• Citation: 2 F.2d 676
• Parties: FIDELITY NAT. BANK & TRUST CO. OF KANSAS CITY et al. v. SWOPE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 676 (1924)

FIDELITY NAT. BANK & TRUST CO. OF KANSAS CITY et al. v. SWOPE et al.

No. 6136.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1924.

Justin D. Bowersock and R. E. Ball, both of Kansas City, Mo. (Samuel J. McCulloch, Frank P. Barker, G. V. Head, Bowersock

& Fizzel, and Miller, Camack, Winger & Reeder, all of Kansas City, Mo., on the brief), for appellants.

Elliott H. Jones, of Kansas City, Mo. (William C. Scarritt, H. M. Langworthy, A. S. Marley, Edward L. Scarritt, and O. H. Dean, all of Kansas City, Mo., on the brief), for appellees.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

JOHNSON, District Judge.

Appellees, hereinafter called plaintiffs, residents and citizens of the state of Tennessee, brought suit in the court below to have declared null and void certain tax bills issued by Kansas City assessing plaintiffs' lands their alleged pro rata share of the cost of grading Meyer Boulevard in said city. The trial court granted the relief prayed for, canceled the tax bills, and adjudged plaintiffs' lands free of any and all liens of or on account of the same. The defendants have appealed the case to this court. It was claimed in the court below, and it is claimed here, that the assessments were unreasonable, discriminatory, and arbitrary, and amounted to the taking of property without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The validity of the tax bills was not attacked by plaintiffs on the ground of lack of notice. Indeed, a defense to the action, and the one standing at the threshold of the consideration of the case, is that the matters complained of are res judicata by reason of the proceeding had in the circuit court of Jackson county in which Kansas City is situated.

Section 28 of article 8 of the Charter of Kansas City provides:

"The public work (street improvements) * * * shall be provided for by ordinance, and the city may provide that after the passage of the ordinance and after an approximate estimate of the cost of the work shall have been made by the board of public works, the city shall file a proceeding in the circuit court of Jackson county, Missouri, in the name of the city, against the respective owners of land chargeable under the provisions of this section with the cost of such work. In such proceeding the city shall allege the passage and approval of the ordinance providing for the work, and the approximate estimate of the cost of said work; and shall define and set forth the limits of the benefit district, prescribed by the ordinance, within which it is proposed to assess property for the payment of said work. The prayer of the petition shall be that the court find and determine the validity of said ordinance, and the question of whether or not the respective tracts of land within said benefit district shall be charged with the lien of said work in the manner provided by said ordinance."

There was at least an attempted compliance with this provision of the statute which resulted in a judgment of the circuit court declaring the ordinance to grade Meyer Boulevard valid, and adjudging that the proposed lien of assessments for the cost of the work provided for in the ordinance should be a valid and legal lien against the respective lots and tracts of land within the benefit district created by the ordinance, when duly assessed, apportioned, and charged as provided in the ordinance and the charter of the city.

It is not necessary to consider the alleged defects in the procedure. In our opinion, as between parties situated as the parties to this action, it was not the intention of the Legislature to authorize the state court to pass upon the constitutionality of the tax bills (under the Fourteenth Amendment) which might be issued under a contract to be thereafter entered into by the common council for the contemplated work, because to attempt to confer such authority upon the court would be beyond its power. Federal courts at least are constitutional tribunals for the determination of actual controversies between parties having some interest in the subject-matter. The questions in controversy in this case at the time of the hearing in the state court could only be moot and a finding by the state court upon these questions, even if authorized by the Legislature and specifically made in its judgment, would not in a federal court be binding upon the parties to this action. Tregea v. Modesto Irrigation District, 164 U. S. 179, 17 S. Ct. 52, 41 L. Ed. 395; Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246.

The facts of the case are as follows:

Some 25 years ago Swope Park, consisting of about 1,300 acres, was donated to Kansas City by Col. Thomas H. Swope to be used as a public park. The entrance to the park is about 8½ miles from the business center of the city. Meyer Boulevard from the Paseo to Swope Park, is a broad highway, being 220 feet wide at its narrowest point, and 500 feet wide as it approaches the park. Provision is made for parkways between the driveways, so that of the total area of the boulevard only about 11 acres are taken up by the driveways, and the remaining 20 acres consist of grass parkways. The grading includes the entire area. The benefit district extends approximately 1 mile in length and is something less than a half mile in width. It consists of about 250 acres of suburban unimproved and unplatted lands lying adjacent to the park and between it and the city, and at its nearest point the benefit district is about 7 miles distant from the business center.

Section 3 of article 8 of the Charter of Kansas City provides the proceedings to be observed by the city in authorizing street improvements, including grading, and provides further that:

"The cost of all grading * * * shall be charged as a special tax on all lands on both sides of the street * * * graded within the following limits, viz.: * * * In case any land fronting on such street * * * graded, be not laid off into lots or blocks, then the land not so laid off, and the land in the rear thereof on the line of the street * * * graded, back 150 feet, shall be so charged, whether fronting on the street or not; and land liable for such grading shall be charged according to the value thereof, exclusive of improvements thereon, as herein provided."

It is well settled that the cost of local improvements such as street grading and paving, curbing and guttering, and laying of sidewalks may be assessed against the abutting property running back a reasonable distance and apportioned upon the frontage, the area, the value of, or the estimated benefit to, the several parcels. Houck v. Little River District, 239 U. S. 254, 36 S. Ct. 58, 60 L. Ed. 266; Gast Realty & Investment Co. v. Schneider Granite Co., 240 U. S. 55, 36 S. Ct. 254, 60 L. Ed. 523; Bauman v. Ross, 167 U. S. 548, 590, 17 S. Ct. 966, 42 L. Ed. 270.

While such improvements are for public use, the assessment of the cost thereof against the abutting property is not inequitable. In the...