Brightwell v. Kansas City
| Decision Date | 30 January 1911 |
| Citation | 134 S.W. 87,153 Mo.App. 519 |
| Parties | JOHN A. BRIGHTWELL, Respondent, v. KANSAS CITY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
Judgment reversed.
John G Park, A. F. Smith and I. D. Hook for appellant.
(1) The action should have been brought against the city treasurer a. For damages; b. By mandamus. State ex rel. v Green, 124 Mo.App. 80; 2 Abbott Municipal Corporations, 1613, 1614. State ex rel. v. Ashbrook, 154 Mo. 375; 3 Abbott, Municipal Corporations, 2472; Butler v. Moberly, 131 Mo.App. 172. (2) Kansas City is not liable. 2 Abbott, Municipal Corporations, 1098; Kansas City v. Ward, 134 Mo. 172; Willis v. Lambert, 168 U.S. 611; Shoemaker v. United States, 147 U.S. 282; Grading Co. v. Holden, 107 Mo. 305; Corrigan v. Kansas City, 211 Mo. 608; Young v. Railroad, 126 Mo.App. 69; 20 Am. and Eng. Ency. Law, 1195; 3 Abbott, Municipal Corporations, 2258. (3) The action is barred by the Statute of Limitations. Meyer v. Christopher, 176 Mo. 580; Ash & Gentry v. City of Independence, 103 Mo.App. 299. (4) The action should have been brought against the city treasurer for damages. Plaintiff's action is for damages for failure of the city treasurer to issue him certain certificates of purchase and it is not for money had and received by Kansas City.
B. D. Davis and L. A. Laughlin for respondent.
(1) No declarations of law were asked or given by the trial court. This court has decided that when an action at law has been tried by the court, without a jury, and no declarations of law are asked or given, the finding will not be reviewed by this court when there is any substantial evidence to support it. Corrigan v. Kansas City, 93 Mo.App. 173; Rice, Stix & Co. v. McClure, 74 Mo.App. 383; Life Ins. Co. v. Stone, 42 Mo.App. 383; Wood v. Land, 22 Mo.App. 425. (2) The first point made by defendant in its brief is that this action should have been brought against the city treasurer for damages. We take the position that when the property was knocked off to plaintiff, and he paid the purchase price, it then became the duty of the city to issue to plaintiff certificates of purchase. This was a mere ministerial duty, not requiring the exercise of the city's legislative power, and entirely separate from its duties as a governmental agency.
This is an action to recover damages from the defendant city on the ground that it failed and refused to issue to plaintiff a certificate of purchase for land bought by him at a sale under a delinquent taxbill. In 1899 defendant levied a special assessment "upon all real estate, exclusive of improvements thereon, in the Westport Park District in Kansas City, Missouri, for the purpose of maintaining, adorning, constructing, repairing, and otherwise improving parks, parkways, boulevards and avenues located in Westport Park District," etc. A number of property owners in the district refused to pay the assessments and in November, 1899, the city sold the property of the delinquents and at this sale plaintiff purchased a lot for which he paid the city $ 32.29, and became entitled to a certificate of purchase.
No certificate was issued and in December following, certain property owners in the district brought suit in the circuit court of Jackson county against the city, the city treasurer and the purchaser at the sale to cancel and set aside the assessment and the sales thereunder on the ground that the proceedings were in violation of the Consittution of the state, and obtained a temporary injunction restraining the city and its treasurer from issuing certificates to the respective purchasers. Plaintiff was one of the purchasers against whom the injunction was issued. The suit was not finally tried in the circuit court until 1905, when a trial resulted in a judgment for the defendants and the injunction dissolved. The property owners appealed to the Supreme Court and in 1908, that court affirmed the judgment holding the proceedings constitutional and the assessment valid. [Corrigan v. Kansas City, 211 Mo. 608, 111 S.W. 115.]
Plaintiff made repeated demands of the different city treasurers for a certificate of purchase but these were refused and in 1909, he instituted the present suit for damages against the city alone. A jury was waived and after hearing the evidence the court rendered judgment for plaintiff for $ 131. Defendant appealed.
As we view the case the decisive question at issue is whether the city should be held to respond in damages for the failure of its treasurer to perform the purely ministerial act of issuing a certificate to a purchaser at a sale of property under an assessment levied for the maintenance of parks and boulevards. And the answer to this question, in our opinion, depends on the answer to be given another question, viz.: In levying the assessment was the city acting in a governmental or a ministerial capacity? If it was acting in the former capacity it cannot be held liable for the torts of its officer in refusing to perform a ministerial act the law charges him with the duty of performing, but if the city acted in the latter capacity, it must be held responsible for such torts.
Pertinent statutory provisions are as follows:
The charter of the city provided : "Said board of park commissioners shall have power, and it shall be its duty, to devise and adopt a system of public parks, parkways, and boulevards, for the use of the city and its inhabitants, and to select and designate lands to be used and appropriated for such purposes, within of without the city limits, and to select routes and streets for boulevards, . . . ."
Further the charter and ordinances provided that special assessments for parks and boulevards should be subject to the same rebates on payment, the same penalties for non-payment and should be collected and enforced in the same manner as general taxes levied by the...
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