Commerce Trust Company v. Keck
| Decision Date | 19 June 1920 |
| Parties | COMMERCE TRUST COMPANY v. MARY KECK et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.
Reversed and remanded.
Scarritt Jones, Seddon & North and Cooper, Neel & Wright for appellants.
(1) Substantial quantities of land both as to area and value that were required under the Charter of Kansas City to bear ratable shares of the cost of this grading have been omitted from assessment and charge, and so the burden on defendants' property has been materially and unlawfully increased; and so the tax bills are excessive and void. (a) As to the definition of a block or square: Standard Dictionary; Century Dictionary; Gilsonite Co. v. Fair Assn., 231 Mo. 601; Trust Co. v. Blakeley, 274 Mo. 58; City of Ottawa v. Barney, 10 Kan. 270; Olsson v. Topeka, 42 Kan. 709, 21 P. 219; Bowlus v. Iola, 82 Kan. 774, 109 P. 405; Town of Fruita v Williams, 33 Col. 157, 80 P. 132; Slater v. Fire & P. Board, 43 Col. 225, 96 P. 554. (b) As to excessive charge and void bill: Hamilton on Taxation by Spec. Assmts sec. 542; 1 Page & Jones on Taxation by Assmt., secs. 118, 639, 645; In re New York Protestant Eps., 75 N.Y. 324; Spokane Falls v. Browne, 3 Wash. 84, 27 P. 1077; Klein v. Gravel Co., 162 Ind. 509, 70 N.E. 801; Chicago v. Baer, 41 Ill. 306; In re Klock, 51 N.Y.S. 909. (2) The taxing district as arbitrarily determined by the Charter of Kansas City and as applied to this particular proceeding, which leaves out of the taxed area lands in material quantities that are self-evidently benefited to the same degree and extent as lands similarly situated within the taxed area and so permits those lands to escape their share of the burden of paying for the grading and the irrational inclusion and exclusion of lands in and from the assessed area resulting from a taxation district of a crazy quilt outline which has a depth of a foot or two in places and less than fifty feet in others and as much as 290 feet in others, is discriminatory and unconscionable; and so the tax bills are void under the Constitution of this State and under the Fourteenth Amendment to the Federal Constitution requiring that no state shall deprive any person of property without due process of law or deny to any person within its jurisdiction the equal protection of the laws, and so the tax bill is void. Trust Co. v. Blakeley, 274 Mo. 52; Realty & Inv. Co. v. Granite Co., 240 U.S. 55, 60 L.Ed. 525, 245 U.S. 288; Independence v. Gates, 110 Mo. 385; Cole v. Skrainka, 105 Mo. 308; Nevada to use v. Eddy, 123 Mo. 557; Kirksville v. Coleman, 103 Mo.App. 215; Crane v. French, 50 Mo.App. 370; Mister v. City of Kansas, 18 Mo.App. 228. (3) The tax bills purport to bear on their face ten per cent from date, while the Charter of Kansas City 1908, p. 338, art. 8, sec. 24, provides that such tax bills shall bear seven per cent, and so the tax bills are void, or at least the judgment which awarded interest at ten per cent is erroneous. Charter and Ord. Kansas City, 1909, p. 338, art. 8, sec. 24; Const. Mo. Art. 9, sec. 16; Kansas City v. Oil Co., 140 Mo. 471; Barber Asphalt Co. v. Hayward, 248 Mo. 280; Charter and Ord. Kansas City, 1909, p. 478, art. 18, secs. 1, 2, 3; Charter and Ord. Kansas City, 1898, p. 137, art. 9, sec. 2; Page & Jones on Taxation by Assmts., 377. (4) Defendant Plaza Leasehold and Investment Company is not estopped to deny the validity of the assessment district. The other defendants are not affected by this alleged estoppel. Sleeper v. Bullen, 6 Kan. 183; Sedgwick on Stat. and Const. Law, 109; Coffin v. Tracy, 7 Pet. 276; Pav. & Const. Co. v. McGovern, 127 Cal. 638; Hickman v. Kansas City, 120 Mo. 110; McLauren v. Grand Forks, 6 Dak. 397; Mayor v. Porter, 18 Md. 284; Steckert v. East Saginaw, 22 Mich. 104; Grant v. Bartholomew, 58 Neb. 839; Batty v. Hastings, 63 Neb. 26; Birdseye v. Clyde, 61 Oh. St. 27; Ardry v. Dallas, 13 Tex. Civ. App. 442; O'Brien v. Wheelock, 184 U.S. 450, 46 L.Ed. 636; Zeigler v. Hopkins, 117 U.S. 683, 29 L.Ed. 1019.
James E. Goodrich, B. C. Howard and Clarence S. Palmer for respondent.
(1) The district assessed with the cost of the grading is correctly determined under the Kansas City Charter. In every case the district extends back half way of the block where the land is "laid off on lots or blocks." Sec. 5, art. 9, p. 142, Charter 1889; Sec. 3, art. 8, p. 315, Charter 1908; Crane v. French, 50 Mo.App. 367; Collier Estate Co. v. Paving Co., 180 Mo. 362, 383; Granite Co. v. Gast Realty Co., 259 Mo. 153, 165; Const Co. v. made in the benefit district and some land had been omitted which should have been assessed, the appellants had the right and it was their duty to show how much their assessment should have been reduced. Having failed to do this they cannot complain of the amount of the judgment against them. Sec. 18, art. 9, Charter 1889; Sec. 24, art. 8, Charter 1908; Neenan v. Smith, 60 Mo. 292; First Nat. Bank v. Arnoldia, 63 Mo. 229; First Nat. Bank v. Nelson, 64 Mo. 418; Neil v. Ridge, 220 Mo. 233. (2) The taxing district established by the city charter and applied in this case is not subject to constitutional objections. Granite Company v. Gast Realty Co., 259 Mo. 153, 240 U.S. 658; Const. Co. v. Withnell, 269 Mo. 546; Withnell v. Const. Co., 259 U.S. 70; L. & N. Ry. Co. v. Barber Paving Co., 197 U.S. 430. (3) The proceedings for grading Main Street were begun under the charter of 1889, and by the terms of the Charter of 1908 the work was to be carried on and the tax bills issued in the manner provided by the prior charter. This continuance of the proceedings was not by virtue of a "superseded charter" but by the mandate of the new charter. Sec. 3, art. 18, Charter 1908; Sec. 2, art. 9, Charter 1889; 2 Dillon on Municipal Corporations, sec. 571, pp. 894, 895; Central Railroad v. Bayonne, 52 N. J. L. 503; Los Angeles v. Waldron, 55 Cal. 283; Hellman v. Shoulters, 114 Cal. 135. But if the tax bills should have been issued under the Charter of 1908, the only difference would be that the interest would be 7 per cent instead of 10 per cent. Unless there was a tender appellants could not claim to be absolved from the payment of interest. Neenan v. Smith, 60 Mo. 292; Neil v. Ridge, 220 Mo. 233. (4) Plaza Leasehold & Investment Company was clearly stopped from claiming that the contract of Spitcaufsky & Wagner was invalid when they signed it, and this appellant and Mary Keck are estopped from alleging that the provisions of the Kansas City Charter violate any constitutional guarantees. Plaza Leasehold and Investment Company expressly requested the contractors to sign the contract and proceed with the work. Mary Keck claimed and was awarded damages under the charter. O'Brien v. Wheelock, 184 U.S. 491; Daniels v. Tienney, 102 U.S. 414; Ferguson v. Landrum, 5 Bush, (68 Ky.) 230.
OPINION
In Banc
The petition in this case is in seven counts of similar tenor on as many special tax bills, issued against lots belonging to the defendants for the cost of grading Main Street, from Twenty-third Street on the north to Grand Avenue on the south. The taxed lots are numbered 28, 29, 30, 31 and 32, in Corrected Plat of City View Park, an addition to Kansas City, lying south of the south line of Twenty-fourth Street, and two other lots described by metes and bounds in the same addition. One of the last mentioned lots was made by vacating an alley ten feet wide, and as thus formed, it fronts on the east side of Main Street and extends for one hundred and twenty feet along the rear ends of the numbered lots which front on Twenty-fourth Street. The other lot described by metes and bounds lies south of the alley lot and faces the east side of Main Street for a width not given, but indicated on the map in the record to be from thirteen to fifteen feet, and the depth to be one hundred and thirty-five feet. The location of those parcels of land is shown on the sketch map which goes with this statement, but is not a copy of the record map. Together the lots comprise a tract nearly square, at the southeast corner of Twenty-fourth and Main Streets, the whole of it lying south of Twenty-fourth Street. The numbers of the tax bills in suit and declared on in the different counts of the petition are: In the first count Bill No. 144, against Lot No. 28, for the amount of $ 1259.58; in the second count, Bill No. 145, against Lot No. 29, for the amount of $ 1259.58; in the third count, Bill No. 146, against Lot No. 30, for $ 1102.13; in the fourth count, Bill No. 147, against Lot No. 31, for $ 1102.13; in the fifth count, Bill No. 148, against Lot No. 32, for $ 925.66; in the sixth count, Bill No. 149, against the said alley lot for $ 143.02; in count 7, Bill No. 150, against the second tract described by metes and bounds, for $ 392.96; all of said tax bills bearing the date, October 21, 1913.
The main defendant is the Plaza Leasehold & Investment Company, a corporation, hereafter referred to as the Plaza Company. The other defendants are Mary Keck, Louise Marold, Amelia Rollert, Frederick Keck, D. M. Allen, G. H Davis, Hugh F. Tighe and James O. Griggs. The different interests of the various defendants are nowhere shown in the record; but in the joint answer filed by all the defendants except the Plaza Company, they say they own or claim some interest in the real estate described in the different counts, and then adopt the answer and cross-petition of the Plaza Company. Said company was the conceded owner of the aforesaid lots when this action was begun. The answer and cross-petition of the Plaza Company set up eleven distinct defenses in as many paragraphs; but only four of them have been renewed on this appeal and, therefore, no attention...
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