Abernathy v. Fidelity Nat. Bank & Trust Co.

• Decision Date: 28 June 1921
• Docket Number: 163,215.,207
• Citation: 274 F. 801
• Court: U.S. District Court — Western District of Missouri
• Parties: ABERNATHY et al. v. FIDELITY NAT. BANK & TRUST CO. et al. HAGERMAN v. SAME. SWOPE et al. v. SAME.

274 F. 801

ABERNATHY et al. v. FIDELITY NAT. BANK & TRUST CO. et al. HAGERMAN v. SAME. SWOPE et al. v. SAME.

Nos. 163, 207, 215.

United States District Court, W.D. Missouri, Western Division.

June 28, 1921

Warner Dean, Langworthy, Thomson & Williams, of Kansas City, Mo for complainants Abernathy.

Marley & Reed, of Kansas City, Mo., for complainant Hagerman.

Scarritt Jones, Seddon & North, of Kansas City, Mo., for complainants Felix H. Swope and others.

Justin D. Bowersock, of Kansas City, Mo., for defendant Fidelity Nat. Bank.

Miller Camack & Winger, of Kansas City, Mo., for defendants Standard Inv. Company, Delap, and Meriwether.

Clarence S. Palmer, of Kansas City, Mo., for defendant Kansas City, Mo.

VAN VALKENBURGH, District Judge.

These cases involve the validity of certain tax bills issued against the property of complainants to pay for the grading of Meyer boulevard, from the Paseo east to Swope Park. These bills are based upon proceedings instituted under section 28 of article 8 of the charter of Kansas City, Mo. This section provides that where, in the grading of a street, there is an unusual amount of filling, or cutting or grading away of earth or rock, so that the expense imposes too great a burden on land situated in the benefit district, consisting of property abutting upon the street to be improved, as provided in section 3 of article 8, then the cost may be assessed against the property located within a larger benefit district to be fixed by the city council.

Section 28 further provides for the enactment of an ordinance authorizing the improvement, and that the city shall file a proceeding in the circuit court of Jackson county, Mo., in the name of the city, against the respective owners of land chargeable, and that the prayer of the petition shall be that the court find and determine the validity of the ordinance, and the question of whether or not the respective tracts of land within the benefit district shall be charged with the lien of the work. Service of process shall be governed by the provisions of section 11 of article 13 of the charter, which provide for service by publication. After such court proceedings have been disposed of, it is provided that the city may then enter into a contract for the work contemplated, and that after the work has been completed the estimate of the cost thereof, and the apportionment of the same against the various lots, tracts, and parcels of land within the benefit district, shall be made by the board of public works according to the assessed value thereof, exclusive of improvements, with the assistance of the city assessor, who shall, on demand of the board of public works, cause an assessment to be made of the value of the lands to be charged with the cost of such grading, and shall deliver such assessment to the board of public works, who shall apportion the cost according to the value thereof fixed by the city assessor.

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 one mile in length, and lies between Sixty-Third and Sixty-Seventh streets, a width of approximately four blocks, which area includes the land taken for the boulevard itself. The grading cost, for which the tax bills were issued, was substantially $97,000. The total assessed valuation of the benefit district, specially made for the purposes of this improvement, was $378,955. The rate of assessment to total assessed value is thus found to be approximately 26 per cent.

It appears from the evidence that the city assessor, in assessing the value of the property in the benefit district, assessed all of the property at substantially the same value per acre, and that all the property was assessed for this special purpose at a value several times that at which it is and was assessed for general tax purposes. This will appear concretely from a consideration of the tracts belonging to complainants.

Tract No. 2, belonging to Gertrude M. Brown, was assessed for general tax purposes in the year 1915 at $4,750, for 1916 at $4,750, and for 1917 at $5,000; in 1916, for the purposes of this grading, at $25,960. The tax bill against this property for this grading was $6,693.40. Tract No. 3, belonging to Felix H. Swope, was assessed for general tax purposes in the year 1915 at $6,240, for 1916 at $6,240, and for 1917 at $6,240; in 1916, for Meyer boulevard, at $25,440. The tax bill against this property for this grading was $6,558. Tract No. 8, belonging to Felix H. Swope, was assessed for general tax purposes in the year 1915 at $4,470, for 1916 at $4,470, and for 1917 at $4,320; in 1916, for Meyer boulevard, at $29,250. The tax bill against this property for this grading was $7,540.20. Tract No. 11, belonging to B. Haywood Hagerman, was assessed for general tax purposes in the year 1915 at $12,480, for 1916 at $12,480, and for 1917 at $10,350; in 1916, for Meyer boulevard, at $48,535. The tax bill against this property for this grading was $12,511.60. Tract No. 14, belonging to Carrie S. Abernathy, was assessed for general tax purposes in the year 1915 at $6,400, for 1916 at $6,400, and for 1917 at $6,400; in 1916, for Meyer boulevard, at $24,920. The tax bill against this property for this grading was $6,424. Tract No. 15 belonging to Carrie S. Abernathy, was assessed for general tax purposes in the year 1915 at $6,000, for 1916 at $6,000, and for 1917 at $6,000; in 1916, for Meyer boulevard, at $24,570. The tax bill against this property for this grading was $6,333.80.

It will thus appear that for the year 1916 these tracts, in the aggregate, were assessed for general tax purposes at a value of $40,340; that in the following year, after the Meyer boulevard improvement, which is claimed to have added value in the way of benefits, had become a fixed fact, the same assessor assessed this same ground for general tax purposes at an aggregate of $38,310, more than $2,000 less than the previous year; that in 1916 these same tracts, in the aggregate, for the purposes of this grading, were assessed at $188,680, a little less than five times the value at which they were assessed during the same year for general tax purposes. It further appears that the tax bills issued against these tracts, for this improvement, aggregate $46,061, nearly $6,000 more than the assessed valuation for general tax purposes in 1916, and nearly $8,000 more than they were assessed for the same purposes in 1917. It further appears that these tracts, practically unimproved suburban property, were assessed to pay almost one-half of this entire improvement, at an average rate of over $350 an acre.

Meyer boulevard, with its heroic proportions, was conceived for the purpose of establishing an inspiring approach to Swope Park, the great playground of Kansas City, and incidentally as a thoroughfare into which, directly and indirectly, the boulevard system of Kansas City might discharge the throngs of pleasure seekers and pleasure drivers who visit that park. It is altogether an appropriate and desirable enterprise for the gratification of the public at large, and its chief value is to the public at large, and to the city property to which it is tributary, and only very incidentally to the locality through which it passes. Notwithstanding this fact, the board of public works assessed no part of the benefits against the city at large, nor against the property of the city, which would indirectly effect the same purpose, although that seems to have been contemplated by section 28, by the ordinance authorizing the improvement, and by the petition filed in the circuit court. That court, as shown by its order, may well have contemplated, and undoubtedly did contemplate, that a portion of the whole cost would be charged against the city. The board of public works, however, imposed the entire burden upon the private property within the benefit district.

Many points are urged by complainants against the regularity of the proceedings and the validity of the tax bills. It is claimed that the method of apportionment provided for in section 28 of article 8 of the charter is fundamentally so unfair and unjust as to result in the taking of property without due process, in violation of the Fourteenth...