Embree v. Kansas City & Liberty Boulevard Road District

• Decision Date: 13 April 1914
• Citation: 166 S.W. 282,257 Mo. 593
• Parties: W. S. EMBREE et al., Appellants, v. KANSAS CITY & LIBERTY BOULEVARD ROAD DISTRICT et al
• Court: Missouri Supreme Court

166 S.W. 282

257 Mo. 593

W. S. EMBREE et al., Appellants, v. KANSAS CITY & LIBERTY BOULEVARD ROAD DISTRICT et al

Supreme Court of Missouri

April 13, 1914

Appeal from Clay Circuit Court. -- Hon. Francis H. Trimble, Judge.

Affirmed.

Simrall & Simrall and Craven & Moore for appellants.

(1) The judgment of the court in dismissing plaintiffs' petition and refusing an injunction was error because the proceeding under Chap. 102, art. 7, R. S. 1909, contemplates the taking of plaintiffs' property without due process of law in this: The value of plaintiffs' property was assessed to determine its proportion of benefits arbitrarily without either notice or hearing, contrary to sections 21 and 30 art. 2, Constitution of Missouri, and the Fourteenth Amendment of Constitution of United States. St. Louis v Rankin, 96 Mo. 497; State ex rel. v. Baker, 170 Mo. 194; Kansas City v. Ward, 134 Mo. 180; Toudonn v. Denver, 210 U.S. 373; Spencer v Merchant, 125 U.S. 345; Railroad v. Wright, 207 U.S. 127. (2) The judgment was wrong because benefits are assessed against plaintiffs' property without legislative determination of the fact that such property is benefited contrary to sections 21 and 30, Constitution of Missouri, and Fourteenth Amendment to Constitution of United States. Const. Co. v. Shovel Co., 211 Mo. 531; Arggle v. Johnson, 118 P. 487; Falbrook Irrig. Dist. v. Bradley, 164 U.S. 170. (3) Article 7 of chapter 102 does not and cannot authorize the issue of the bonds exceeding five per cent of the assessed valuation of the taxable property in the district, and the present proceeding looked to the issue of such bonds, exceeding five per cent, contrary to Sec. 12, art. 10, Constitution of Missouri. The statute should not be construed to disregard the Constitution in this respect. Kansas City v. Ward, 134 Mo. 184. (4) The "bonds" mentioned on page 374, Laws 1911, are a debt of the district. (5) The injunction should have been granted because the statute, Chap. 102, art. 7, does not contemplate or authorize the improvement of city streets or the incorporation of cities or villages into these road districts as attempted in the present case. State ex rel. v. Gordon, 197 Mo. 55; Road Dist. v. Huber, 212 Mo. 551. (6) The Town of North Kansas City, and City of Birmingham could not forfeit their franchise and become disincorporated by mere non-use of their franchise even if the evidence were sufficient on this issue. Hambleton v. Dexter, 89 Mo. 188; State v. Huff, 105 Mo.App. 354; Ewing v. Hobblitzelle, 85 Mo. 77; Ringling v. Hampstead, 193 F. 590; Hill v. Anderson, 122 Ky. 87; Cain v. Brown, 111 Mich. 657. (7) Section 10616 does not authorize the use of proxies where voting on the question therein set out and the election was lost in the present case unless proxies were counted.

Claude Hardwicke for respondents.

(1) Section 10621 provides that at any election or general meeting of landowners of any district, any owner of land may be represented by his agent or attorney, who may vote for such owner. Such being the case, we see no reason for plaintiffs' contention as to votes of landowners so represented. (2) Article 7, chapter 102, does not authorize the taking of property without due process of law. There is nothing in our Constitution prohibiting the creation of such corporations. Harris v. Bond Co., 244 Mo. 664. The statute imposes no limitation as to the class or kind of land that may be embraced in districts created thereunder, the only restriction or limitation being that each district must be wholly within one county and embrace as much as 2000 acres. Such being the case, there is no constitutional reason for a hearing before a district is created. If under the statute only such lands could be included as would be benefited by road improvements, there would be some reason for a hearing for the purpose of determining what lands would be so benefited. But the legislative act is a legislative finding that so long as each district is embraced wholly within one county and contains not less than 2000 acres, every tract of land therein will be benefited by the permanent improvement of any public road therein, and should be assessed for the improvement. The statute does not authorize the taking or seizure of property until there has been a judgment recovered in a suit on a tax bill and the landowner must have notice of such suit, and, in the absence of laches or estoppel, be allowed to make any defence thereto that has not been previously determined by due process of law. Page & Jones on Taxation by Assessment, secs. 119, 132, 773; Hagar v. Reclamation Dist., 111 U.S. 701; St. Louis v. Richison, 76 Mo. 470; Kansas City v. Huling, 87 Mo. 203; Bank v. Carswell, 126 Mo. 436; Springfield v. Weaver, 137 Mo. 650. (3) The statute under which such district was incorporated could be considered unconstitutional, even though it had provided that tax bills issued thereunder should be collected by summary proceedings. It is provided, by sections 10615 and 10616, that the tabulated statement of valuations shall be filed with the president or secretary and thereafter be open to inspection; and that upon the filing thereof; and the report, maps and profiles; a general meeting shall be called, and notice thereof given. The giving of such notice is sufficient notice to all landowners that such tabulated statement, showing the valuations, has been prepared and is subject to their inspection; and if any lands have been overvalued, the owners thereof are thereafter charged with notice thereof; and they thereafter have, under the law of this State, an opportunity for hearing, and relief against an improper assessment, by suit in equity which they can resort to at any time if not stopped or barred by laches. Arnold v. Hawkins, 95 Mo. 569; McMillen v. Anderson, 95 U.S. 37; Page & Jones on Taxation by Assessment, sec. 133. (4) The statute is equivalent to a legislative finding that all land in any road district created thereby will be benefited by the permanent improvement of any road therein; that the aggregate of such benefit will equal the estimated cost of the improvement and administrative expense, etc.; that land within one mile of the improvement will be benefited one-third more in proportion to its value than lands over one mile from and within two miles of the improvement, and twice as much in proportion to its value as lands over two miles from the improvement. It is the province of the Legislature to ascertain and state the proportion by which benefits will accrue to the lands in an assesment district, or to designate a method whereby such proportion may be arrived at. If the Legislature had provided that the cost be assessed against all lands in the district ad valorem, without regard to location with reference to the improvement, as in Board of Commissioners v. Harrel, 147 Ind. 500, and Fallbrook Ir. Dist. v. Bradley, 164 U.S. 112; or that it be assessed against all such lands in proportion to their area, the courts should not interfere, although either of such methods of apportionment would ordinarily vary much further from the proportion by which the benefits would actually accrue than the apportionment prescribed by the statute under which our district was created. Heman v. Allen, 156 Mo. 534; Meier v. St. Louis, 180 Mo. 391; Houck v. Little River Drainage Dist., 248 Mo. 373. (5) By their contention, that the bond issue authorized would constitute a debt, created in violation of our constitutional restriction of debt contracting power of public corporations, it is evident that plaintiffs overlook the fact that the only means provided by which such bonds could be paid is by collection of special assessments. The district will have no general taxing power; though some of the public revenue is to be used by it as a trust fund, for certain specified purposes only. Sec. 10624. It will never be possible under the law for anything to be paid or collected on said bonds, except as realized from special assessments. The purpose of such constitutional restriction is, to prevent municipalities from so encumbering themselves with indebtedness that they cannot, with the general taxes they are permitted to collect, carry on properly the governmental functions they are usually intrusted with; so there is no reason for applying such restriction to indebtedness payable only out of special assessments, or indebtedness of corporations having no general taxing power and no power or authority to pay indebtedness except out of the proceeds of special assessments. Bonds of the district would, we will admit be utterly void as general obligations of the district, but if provision is made for their payment out of special assessments, the holder thereof can, nevertheless, compel collection of such assessments by the district, and application of the proceeds toward payment of said bonds. Kansas City v. Ward, 134 Mo. 172; Morrison v. Morey, 146 Mo. 543; Stueb v. Cox, 111 Ind. 299; Board of Comm. v. Harrell, 147 Ind. 500; Hughes v. Parker, 148 Ind. 692; Railroad v. Jacksonville, 114 Ill. 502; Elec. & P. Co. v. Ft. Dodge, 115 Iowa 568; Clinton v. Wallihu, 98 Iowa 655; Galveston v. Loonie, 54 Tex. 517.

Neville & Gorman and Barbour & McDavid, amici curiae, also for respondents.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, amici curiae.

(1) The statute in question is not in contravention to Sec. 12, Art 10, of the State Constitution in that it authorizes an issuance of bonds without the approval of two-thirds of the qualified voters of the road district, nor does it violate said section of the Constitution in that it authorizes the creation of an indebtedness in excess of five per cent of the assessed valuation of the property in the district. Levee Co....