Corrigan v. Kansas City

• Decision Date: 13 May 1908
• Citation: 111 S.W. 115,211 Mo. 608
• Parties: BERNARD CORRIGAN et al., Appellants, v. KANSAS CITY and J. SCOTT HARRISON
• Court: Missouri Supreme Court

111 S.W. 115

211 Mo. 608

BERNARD CORRIGAN et al., Appellants, v. KANSAS CITY and J. SCOTT HARRISON

Supreme Court of Missouri

May 13, 1908

Appeal from Jackson Circuit Court. -- Hon. Edward P. Gates, Judge.

Affirmed.

Warner Dean, McLeod, Holden & Timmonds for appellants.

(1) Considered as a general tax, or tax for general purposes this levy is void: 1. Because the city levy of 10 mills on each dollar of the assessed valuation "for general purposes," which was duly paid by plaintiffs, was the maximum of the constitutional limit; and this additional levy of two and a half mills on the dollar is in excess of that limit. Constitution, art. 10, sec. 11. 2. Because the rate is not the same in all the park districts; therefore, it is violative of section 3, article 10, of said Constitution which provides that taxes "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." 3. Because the division of the city into park districts for taxing purposes is void. Morgan v. Comptroller, 44 N.J.L. 572. 4. Because levied on one kind of property only, viz., real estate exclusive of buildings and improvements, thereby exempting all other kinds of property, in violation of section 7 article 10, of said Constitution. 5. Because the answer alleges that this tax "is a special assessment, levied for local purposes, and is legally and properly levied for a purpose for which local and special assessments can be legally levied;" and it is on that ground that defendants seek to uphold its validity. (2) Ordinance number 9674 is void, because in conflict with section 33, article 10, of the charter. By comparison, it will be seen that the charter provides for the assessment of all the real estate, exclusive of improvements thereon, in the park district; while the ordinance does not include or cover all the real estate in the park district. It omits and exempts all real estate which is not "liable for taxation for state and county purposes," and it omits and exempts all real estate not "shown by the books of the city assessor for the assessment of real estate in said West Park District made for general city purposes in said year." By reference to the 3rd paragraph of the agreed statement of facts, it will be seen that in West Park District there are 55 parcels of land, aggregating 37 acres, mostly belonging to churches, charitable institutions, Kansas City school district, etc., one parcel described as being Kansas City engine house, and two parcels described as belonging to Kansas City -- none of which is "charged with any state, county or general city tax for said year, because exempt from the payment of such taxes, and on all of which no park maintenance tax was levied." By reference to the 4th paragraph of said agreed statement, it will be seen that there are various parcels of land in West Park District, which "are owned by various railroad companies, the most of them being used for track and depot purposes, and some of them for shop and roundhouse purposes." These railroad lands "amount in the aggregate to 200 acres." These railroad lands "do not appear on the assessment roll, because assessed by the State Board of Equalization. And they are not charged with any local park maintenance tax." So that while the charter requires that all the real estate, exclusive of improvements thereon, shall bear this local assessment, the ordinance omits and exempts therefrom all real estate not "liable for taxation for state and county purposes," which exemption, as shown in said agreed statement, covers 55 parcels of land, containing in the aggregate 37 acres. No other real estate is to be charged with said assessment. This provision omits and exempts 200 acres of lands belonging to various railroad companies. The charter and ordinances of a city stand in the same relation to each other as the Constitution and statutes of a state. Quinette v. St. Louis, 76 Mo. 402. And the ordinances must be consistent with the charter. Kansas City v. Hallett, 59 Mo.App. 160. That church property and property used for charitable purposes are subject to local assessments, though exempt from general taxation, has been settled in this State. Sheehan v. Hospital, 50 Mo. 155. And railroad property is also subject to local assessments. State ex rel. v. City of Kansas, 89 Mo. 34. And so are railroad rights of way subject to local assessments. Elliott on Roads, 403; Railroad v. Decatur, 147 U.S. 190, 126 Ill. 92; Railroad v. Moline, 159 Ill. 64; Railroad v. Kankakee, 164 Ill. 608. The arbitrary exclusion, or exemption, of these properties amounts to oppression on the owners of the property assessed, and avoids the assessment. Scammon v. Chicago, 42 Ill. 192; Chicago v. Baer, 41 Ill. 306; Parmelee v. Chicago, 60 Ill. 267; Dyer v. Harrison, 63 Cal. 447. (3) This assessment is void, because there was no park, parkway, or boulevard in that district on which this fund could be lawfully expended. The theory underlying these local assessments is mutuality -- a quid pro quo; and yet here is a case in which the city is undertaking to levy a local assessment to raise a fund for the purposes of maintaining, etc., a four-acre tract, called a park, which the city "reserves the right at any time, by ordinance, to use for other purposes or to sell or dispose of." In other words, the city proposes to assess the real estate in West Park District to raise a fund "for the purposes of maintaining, adorning, constructing, repairing and otherwise improving" a fouracre tract of land, called a park, which it may at any time use for city hall, market, water works, jail or other purpose, or which it may at any time sell to any person or corporation, and be used for brick yards, slaughter houses, packing houses, churches, schools, railroad depots or roundhouses, stores, warehouses, cold storage plants, hotels, private residences, or anything else. Furthermore, the only other so-called park in that district is a parcel of land consisting of one-tenth of an acre -- a tract about 65 feet square, which has never been placed under the control of the park board. Now, turning to section 6, article 10, of the charter, it will be seen that the park board only has control of such parks, parkways and boulevards as may, by ordinance, be placed under their control and management. Again, section 33, article 10, of the charter authorizes an assessment of this kind only for maintaining, etc., parks, parkways, etc., "which are under the control and management of the board of park commissioners." So we have an ordinance passed April 21, 1898, levying this assessment for the purpose of maintaining, etc., parks, parkways, etc., when the record shows conclusively that there was no park, parkway or boulevard in that district under the control or management of such board, except the four acres above referred to; and the city has reserved the right to use that for other purposes or to sell it. Hansen v. Omaha, 11 Neb. 37; Leach v. Cargill, 60 Mo. 316; Guinotte v. Egelhoof, 64 Mo.App. 356; Kirksville v. Coleman, 103 Mo.App. 215. (4) Ordinance No. 9674 is void, because it omits and exempts many parcels of land from the assessment. Childers v. Holmes, 95 Mo.App. 154. The city has no right, power or authority to exempt property from either general taxes or special assessments. Vrana v. St. Louis, 164 Mo. 146; State v. Railroad, 75 Mo. 208; St. Louis v. Meier, 77 Mo. 13; 25 Am. and Eng. Ency. Law, 1193; Dillon, Mun. Corp. (4 Ed.), sec. 781; Cooley on Taxation (2 Ed.), 200, 215; Beach on Pub. Corp. sec. 1443; Elliott on Roads and Streets, 377. Where lands liable to assessment are not assessed, and the whole expense of the improvement is assessed on the remaining property, the assessment is void. Gray's Limitation of Taxing Power, sec. 1902; 25 Am. and Eng. Ency. Law, 1199; People v. Lynch, 51 Cal. 15; Chicago v. Cummings, 144 Ill. 446; Kizer v. Winchester, 141 Ind. 694; State v. Union, 53 N. J. L. 67; People v. Buffalo, 159 N.Y. 571; Huntington v. Cincinnati, 3 Ohio Dec. 126; Masters v. Portland, 24 Ore. 161; Scranton v. Levers, 200 Pa. St. 56; Savage v. Buffalo, 131 N.Y. 568. (5) The ordinance is void, because the purposes for which the assessment is made are too general, indefinite and uncertain. Wells v. City of Weston, 22 Mo. 384; Chouteau v. Leffingwell, 54 Mo. 467; Orphan Asylum Appeal, 11 Pa. St. 135; Chicago v. Blair, 149 Ill. 310. Ordinances levying local assessments must be specific as to the improvements to be made; otherwise, they will be held void. Sheehan v. Gleeson, 46 Mo. 100; Haegele v. Mallinckrodt, 46 Mo. 577; Moran v. Lindell, 52 Mo. 229; Independence v. Gates, 110 Mo. 374; Construction Co. v. Loevy, 64 Mo.App. 430; State v. Hoboken, 47 N. J. L. 268. An ordinance which simply authorizes an improvement, without furnishing any directions as to the manner in which or materials with which the same shall be done, is void. Haegele v. Mallinckrodt, 46 Mo. 577; Rich Hill v. Donnan, 82 Mo.App. 386. This ordinance provides for doing many things; and an ordinance which provides for several improvements under one assessment, will be held void. 25 Am. and Eng. Ency. Law, 1213, 1214; Dyer v. Chase, 52 Cal. 440; Adams Co. v. Quincy, 130 Ill. 566; Mendenhall v. Clugish, 84 Ind. 94; Dickinson v. Worcester, 138 Mass. 555; People v. Yonkers, 39 Barb. 266; Wilbur v. Springfield, 123 Ill. 295; State v. Hoboken, 47 N. J. L. 268; People v. Ladd, 47 Cal. 603; Randolph v. Gawley, 47 Cal. 458; People v. Clark, 47 Cal. 456. (6) The ordinance is void because it wholly ignores and disregards the question of benefits. The territory or district covered by this levy is about three miles in length and from one and a fourth to one and a half miles in width; and contains store-houses, warehouses, private...