Collins v. A. Jaicks Company

• Decision Date: 07 July 1919
• Citation: 214 S.W. 391,279 Mo. 404
• Parties: W. E. COLLINS et al., Appellants, v. A. JAICKS COMPANY
• Court: Missouri Supreme Court

214 S.W. 391

279 Mo. 404

W. E. COLLINS et al., Appellants, v. A. JAICKS COMPANY

Supreme Court of Missouri

July 7, 1919

Appeal from Jackson Circuit Court. -- Hon. Joseph A. Guthrie, Judge.

Affirmed.

Griffin & Orr and R. B. Middlebrook for appellants.

(1) The allegations in plaintiffs' petition specifically set up that the work in controversy is maintenance and repair and defendant by demurring to this admits the correctness of this statement for the purposes of this argument. (2) The city had no power to issue special tax bills for maintenance work. Payment for maintenance work should be paid for solely out of the maintenance fund of the park district in which Linwood Boulevard is located, which fund is generously provided for by the charter, and the abutting property should not bear the expense of maintenance and repairs. Section 31, Article 13 Charter of 1909, authorizing the issue of special tax bills is general in its nature, covering every conceivable kind of work, including even bridges and culverts, while Sections 33 and 34 of said article are special in their nature, being expressly and specifically designed to regulate and provide for the raising and expending of a maintenance fund to take care of the maintenance and repair of boulevards and to set bounds upon its size. In the case at bar the city proposes to ignore all these special restrictions and maximums and just issue special tax bills to cover the entire cost of repairs. (3) A special provision applicable to a particular subject shall prevail over a general provision that may be inconsistent therewith. Roth v. Gabbert, 123 Mo. 32; Poor v. Watson, 92 Mo.App. 96; Ruchenberg v Railroad, 151 Mo. 85; City of Springfield v. Stark, 93 Mo.App. 76; Camp v. Wabash Railroad, 94 Mo.App. 280; State ex rel. v. Roach, 258 Mo. 552; State ex rel. Lindell Hotel Co., 9 Mo.App. 453. (4) If the charter confers the power to impose special tax bills on some abutting land and to entirely relieve other abutting land similarly situated of that burden as contended by respondent, then the owners of the burdened land are denied the equal protection of the laws within the meaning of Section One, Article 14, Federal Constitution. 8 Cyc. 1073; Cotting v. K. C. Stock Yards, 103 U.S. 107. (5) The charter of 1889, as amended in 1895, contained the following section: "Provided further, that when any parkway or boulevard has been constructed at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the Park District in which the same is situated or out of the general park fund." Charter 1889, art. 10, sec. 31. While this charter was in force, plaintiffs relying on this section, invested in boulevard land and expended large sums for originally constructing this boulevard (said expenditures being set forth in their petition) and tax bills were issued therefor and duly collected by the city and paid by the abutting property. The present city charter, as adopted in 1908, omitted the proviso above quoted, and plaintiffs contend that the attempt in the case at bar to burden their adjoining property with special tax bills for maintenance of a boulevard already constructed, is violation of their constitutional right. Art. 12, sec. 19, Mo. Const. To subject these lands to the cost of maintenance and repairs is to "impose a new liability in respect to considerations already past," and the same can not lawfully be done by adopting a new charter, any more rightfully than it could be done by the Legislature. R. S. 1909, sec. 9710.

Clarence S. Palmer for respondent.

(1) The provisions of the present charter authorizing the re-pavement of a boulevard and assessment of cost against abutting property, is not nullified by reason of the fact that the prior charter gave no such right. The provision of the former charter did not constitute a contract right of plaintiffs: (a) because there was lack of a consideration; (b) because such a contract would have been contrary to the provisions of the Constitution of 1875, relating to the exemption of property from taxation. 4 Dillon on Mun. Corp. (5 Ed.) 2581; Ladd v. Portland, 32 Ore. 272; State v. Mayor of Newark, 37 N.J.L. 424; Carstens v. Fon du Lac. 137 Wis. 465; Tilden v. Mayor, 56 Barb. (N.Y.) 361; Bradley v. McAtee, 7 Bush (Ky.) 667; Rochester v. Ry. Co., 182 N.Y. 99; Houck v. Drainage District, 248 Mo. 394; Miners Bank v. Clark, 252 U.S. 20; Wisconsin & Michigan Ry. Co. v. Powers, 191 U.S. 379; Grand Lodge v. New Orleans, 166 U.S. 143; Paige & Jones, "Taxation by Assessments," sec. 172. (2) The improvement in question was not maintenance but repaving. Jones v. Plummer, 137 Mo.App. 337; Bliss on Code Pleading (2 Ed.), sec. 418; Kleekamp v. Meyer, 5 Mo.App. 444. (3) Plaintiffs waited until the work was completed and they had received its benefits, and are, therefore, estopped from proceeding in equity to ask that the contractor shall receive no pay for his work. The Planet Co. v. Ry. Co., 115 Mo. 620; Jaicks v. Merrill, 201 Mo. 91; Gibson v. Owens, 115 Mo. 258; Hellenkamp v. Lafayette, 30 Ind. 192; Palmer v. Stump, 29 Ind. 329; Lafayette v. Fowler, 34 Ind. 146.

WALKER, J. Woodson, J., absent.

OPINION

In Banc

WALKER J.

This is an action brought by property owners against a contractor for the cancellation of certain tax bills issued by Kansas City for paving Linwood Boulevard from Troost Avenue to Prospect Avenue. The pleadings consist of the petition, the answer and the reply. At the trial, the defendant filed a motion for judgment on the pleadings, which was sustained; and plaintiffs appealed. As the reply denied the allegations of the answer, the sole question was whether the petition stated a cause of action entitling the plaintiffs to the relief asked.

The petition, after pleading the corporate existence of certain parties plaintiff, alleges their respective ownership of certain tracts of land therein described, and that tax bills have been issued to the defendant in payment of improvements made on Linwood Boulevard. The date of the issue of these tax bills is not stated, nor their respective numbers or amounts. The existence of Linwood Boulevard from Troost Avenue to Prospect Avenue, the portion of the boulevard paved, is alleged to have been at all times under the control and management of the board of Park Commissioners of Kansas City; that, in 1900, the city authorized the pavement of Linwood Boulevard from Troost Avenue to Michigan Avenue, and, in 1909, provided for the pavement of Linwood Boulevard from Michigan Avenue to Benton Boulevard (a point farther east than Prospect Avenue), and that said work was done and tax bills issued in payment thereof, which were paid by the owners of land fronting on the boulevard. Section 31 of the Charter of 1899, as amended in 1895, which authorized the improvements made in 1900 is set out; that on August 4, 1908, Kansas City adopted a new charter. Certain provisions of this charter are pleaded; among others, Section 33, Article XIII, which provides that the maintenance fund for parks and boulevards may be assessed against all the land, exclusive of improvements in the respective park districts, and that all vehicle taxes collected in Kansas City shall be used exclusively for the construction, maintenance, repairs, etc., of parks, boulevards, etc., under the control and management of the Board of Park Commissioners.

Section 34, Article XIII, of the Charter, is also set out, which provides for a maintenance fund of ten cents per front foot on all the land fronting on boulevards or parkways.

It is further pleaded that the levy of two and a half mills upon each dollar of valuation of the real estate in Kansas City was levied for the year 1914; that certain sums from the vehicle license were received for that year, and that a special assessment of ten cents per front foot on the land fronting upon all boulevards was levied, and in addition, that the Common Council for the year 1914 appropriated the sum of $ 62,980 for improving parks and boulevards for the year 1914, and for general expenses, as provided by Section 35, Article 13, of the Charter, and that the maintenance tax and the ten-cent tax and the general taxes were all contributed to by the plaintiffs, as owners of real estate. This is followed by a conclusion of law that the funds specified were the only funds available for the improvement of Linwood Boulevard.

Plaintiffs then allege that in violation of the Charter of 1908, the Board of Park Commissioners adopted a resolution, April 27, 1914, providing "that Linwood Boulevard from a line eighteen inches east of the east line of the street car track in Troost Avenue, to a line eighteen inches west of the west rail of the street car track in Prospect Avenue, be paved the full width thereof with bituminous pavement macadam, and that the approaches to the cross streets be paved with asphalt," and that said work be paid for by the issue of special tax bills; that the Common Council, by Ordinance No. 11918, approved June 23, 1914, ordained that Linwood Boulevard should be paved as provided in said resolution, and that the work be paid for by special tax bills; that Section 12, Article 18, of the Charter of 1908, relating to the effect of the adoption of the new charter upon existing rights or liabilities, and that the issue of tax bills against plaintiffs' property was in violation of said Section 12, and further alleges that plaintiffs purchased their property relying upon the rights, privileges and exemptions supposed to be contained therein.

That the work as actually done "consists of putting a top dressing on said boulevard," and that this is what is properly, ordinarily and regularly known and designated as maintenance and repairs, as that...