In re Main Street

• Decision Date: 17 November 1917
• Docket Number: No. 18539.,18539.
• Citation: 198 S.W. 821
• Parties: In re MAIN STREET. KANSAS CITY v. ARMOUR et al.
• Court: Missouri Supreme Court

198 S.W. 821

In re MAIN STREET KANSAS CITY v. ARMOUR et al.

No. 18539.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Proceedings by Kansas City against

Charles W. Armour and others to open and establish Main Street from Sixty-Fifth Street to Seventy-First Street. From the judgment, the property owners appeal. Affirmed.

Frank F. Brumback, of Kansas City, for appellants. J. A. Harzfeld, City Counselor, and J. C. Petherbridge, Asst. City Counselor, both of Kansas City, for respondent.

GRAVES, J.

By this proceeding Kansas City sought to open Main street in said city from Sixty-Fifth street on the north to Seventy-First street on the south. Main street, as we gather it, runs from the Mussouri river on the north to Seventy-Fifth street, or the city limits, on the south. It is one of the principal thoroughfares of the city. It appears to be opened and used from the said river to Sixty-Fifth street, and then again from Seventy-First street to Seventy-Fifth street, but not opened or used from Sixty-Fifth street to Seventy-First street. The real purpose of the present proceeding is to open up this space between Sixty-Fifth and Seventy-First streets, and the land over which this link of the street would run belongs to the appellants. This distance is stated to be about three-fourths of a mile, and the 60-foot strip taken for the street aggregates 5 4/10 acres. The benefit district ran from Sixty-Third street on the north to Seventy-Fifth street on the south, and included two strips of ground, belonging to appellants, one on either side of the 60-foot strip for the street. These strips were 130 feet wide by about three-fourths of a mile long.

The damages allowed to defendants for the property actually taken was $19,200. To pay these damages, the city was assessed $1 benefits, and the remainder of $19,199 was assessed as benefits against the several parcels of these two strips of ground above mentioned. No other property in the benefit district was charged with benefits, but was found by the jury not to be benefited. The proceeding originated in the municipal court, but no question is raised as to that situation. Nor is the regularity of the appeal from that court to the circuit court questioned.

The real live question seems to be the alleged invalidity of section 3, art. 6, of the Kansas City charter. The ordinance seemingly conforms to the charter provision, as does the proceedings in the circuit court. Whilst error is charged in the proceedings as to instructions given, and invalidity against the ordinance, yet these questions largely run back to the alleged invalidity of the charter provision supra. All will be noted under the points urged.

I. That part of section 3, art. 6, of the charter of Kansas City, which provides for the assessments of benefits reads:

"To pay such compensation the jury shall assess against the city the amount of benefit to the city and public generally, inclusive of benefit to any property of the city, and the balance of such compensation they shall assess against the several lots and parcels of private property within the benefit district, exclusive of the improvements thereon, deemed benefited by the proposed improvement as determined according to the preceding section each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel bears to the whole benefit to all the private property assessed."

The ordinance involved, simply provides:

"And all private property within said limits is hereby taken and condemned for public use as a part of said street, and just compensation therefor shall be assessed, collected and paid, according to law. The amount allowed for private property taken shall be wholly paid by special assessments made against the city and against the several lots and parcels of private property within the benefit district described and set out in the next succeeding section, all in accordance with article VI of the charter of Kansas City, Missouri."

It thus appears that the ordinance is not invalid unless the charter is invalid. The instruction given in behalf of the city, in so far as it touches the question of benefits reads:

"To pay such compensation, you will assess against the city the amount of benefits to the city and the public generally, if any, including the benefit, if any, to any property of the city, within the limits of the benefit district as prescribed by said ordinance, and the balance of such compensation you will assess against the several lots and parcels of private property exclusive of the improvements thereon, which you may deem benefited by the proposed improvement, and which is within the limits of said benefit district as prescribed by the ordinance and shown on the plat introduced in evidence, each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance, as its benefit, if any, bears to the whole benefit to all the private property assessed."

It will be noted that this instruction follows the language of the charter. The verdict indicates a literal following of the instruction. Upon the vital question, after finding value of property taken, it says:

"To pay the just compensation so ascertained for the private property taken and damaged as aforesaid, we assess against Kansas City as the amount of benefits to said city, and the public generally, inclusive of benefits to all the property of said city within the benefit district, the sum of $1, and against the several lots and parcels of private property deemed benefited, exclusive of the improvements thereon, as determined according to section 3, art. 6, of the charter of Kansas City, by the proper improvement, the balance of such compensation, assessing each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit to each lot or parcel of ground bears to the whole benefit of all the private property assessed, as follows, to wit: [Here follows the details as to each of six parcels of land].

"Against all those lots and parcels of land lying within the benefit limits as prescribed by Ordinance No. 12800, for the opening and establishing of Main street from Sixty-Fifth street to Seventy-First street, and not hereinbefore mentioned and described, we assess no benefits."

So that the real question is the validity of this charter provision. Counsel for appellants really go no further, for in the brief he says:

"The appellants claim that by the provisions of the charter of Kansas City and the instruction given to the jury by the court the jury were compelled to make this assessment in the manner they did, irrespective of whether the property of the appellants so assessed was actually benefited to the amount so assessed against it; that is, that the operation of the provisions of the charter of Kansas City directing how assessments of benefits were to be made and the instruction of the court following those provisions compelled the jury to assess this property in the sum they did, even though they believed that the property was actually benefited in a much less sum. The appellants contend that the operation of the said provisions of the charter and the instruction given by the court took from them their property without just compensation and without due process of law and denied them the equal protection of the laws contrary to the provisions of section 21 of article 2 of the Constitution of Missouri and section 30 of article 2 of the Constitution of Missouri and contrary to the Fourteenth Amendment to the Constitution of the United States. This contention is based upon the proposition that the only constitutional ground for levying special assessments is a benefit actually received, and that any proceeding which proposes to levy a special assessment irrespective of whether the benefit is actually received or not is an exercise of arbitrary power and unconstitutional and void."

Having thus settled and singled out the one simple issue of law, such issue we take next.

II. Article 6 of the present charter, upon the question involved here, is a practical rescript of article 7 of the previous charter, and has therefore been before this court many times, and up to this time has withstood all constitutional darts prepared by many skilled lawyers.

It should be said that the constitutional dart (manufactured and prepared by learned counsel for appellants in this proceeding), and now directed at this charter provision, is somewhat differently pointed from those heretofore considered. Whether there is virus on this new point to the constitutional dart remains to be seen. The proposition is thus stated in the brief under the heading, "Points and Authorities":

"The provisions of section 3 of article 6 of the charter of Kansas City of 1908 directing in what manner assessment of benefits shall be made to pay compensation for property taken in a condemnation proceeding are unconstitutional and void, because they direct that assessment must be made for benefits irrespective of whether those benefits are actually received or not, and such provisions therefore authorize the taking of the property of the appellant without just compensation and without due process of law, and deny them the equal protection of the laws contrary to section 21 of article 2 of the Constitution of Missouri, and contrary to section 30 of article 2 of the Constitution of Missouri, and contrary to the Fourteenth Amendment to the Constitution of the United States."

Section 21 of article 2, Const. Mo., provides that private property shall not be taken or damaged for public use without just compensation. Section 30 of said article 2 is the "due process of law" clause of our Constitution. The Fourteenth Amendment to the federal Constitution covers the question of "due process of law," and it is to this...