Kansas City Grading Co. v. Holden

• Decision Date: 12 October 1891
• Citation: 107 Mo. 305,17 S.W. 798
• Parties: KANSAS CITY GRADING CO. v. HOLDEN et al.
• Court: Missouri Supreme Court

17 S.W. 798

107 Mo. 305

KANSAS CITY GRADING CO. v. HOLDEN et al.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

MUNICIPAL CORPORATIONS — ASSESSMENTS.

Plaintiff graded a street in the city of K. under a contract, one of the specifications of which was that the earth excavated therefrom should be used in filling up other streets. The property holders on the street excavated were assessed for the improvements thereon, but the owners on the other streets were not. No fraud on the part of the municipal authorities was shown. Held, that the property owners assessed could not resist the collection by plaintiff of the assessment; a general ordinance providing that where the excavation in a particular grading shall be more than is necessary for the work the municipal authorities may, in their discretion, use the surplus material on other streets. 32 Mo. App. 497, reversed.

Appeal from Kansas City court of appeals.

Action by the Kansas City Grading Company against Edward M. Holden and others on special tax bills for grading a street. Judgment for defendants. Plaintiff appeals. Reversed.

Johnson & Lucas, for appellant. C. O. Tichenor, for respondents.

MACFARLANE, J.

This action is upon special tax-bills for grading May street, in Kansas City, between Sixth and Ninth streets. Plaintiff was defeated in the circuit court, and appealed to the Kansas City court of appeals, in which the judgment was affirmed by a majority of the court, RAMSAY, J., dissenting. 32 Mo. App. 497. The case was thereupon certified to this court, the judge so dissenting believing the decision of the majority to be in conflict with certain decisions of this court, and of the St. Louis court of appeals. One of the specifications under which the contract for grading the street was let to plaintiff was the following: "The earth and quarry rubbish will be deposited on Ninth street, from Broadway to Washington streets, until that part of Ninth street is brought to grade and full width. The remaining part will be deposited on Eighth street, between Broadway and Bank streets; on Bank street, between Seventh and Ninth streets; and on alley in block two, Lucas Place addition." The circuit court held the whole contract and the special assessment of benefits against the property owners on May street for the cost of such improvements void, for the reason that such property owners, by the terms of the contract, were taxed to pay for grading Ninth and other streets, lying outside the district taxable for the grading of May street, and from which they derived no special benefits. The discussion was confined wholly to the questions involving the validity of the contract, and it was and will be assumed, in our consideration of that question, that the charter of the city confers upon the city authorities power to grade streets in the city, when requested by the requisite number of property owners thereon, at the expense of the owners of the property on the streets to be graded; that provision is made for assessing and apportioning the expense of the improvement among the property owners, to be charged therewith in proportion to the benefits derived therefrom; that all proper and necessary steps were taken to authorize the grading of May street; that the grading was done according to contract; that the assessments for the whole cost of grading May street under the contract were regularly made against the owners of property on that street, and no other; and that the tax-bills sued upon were regularly issued, and are in proper form. It is undisputed that the grading of May street, under the contract, consisted wholly of excavations that Ninth street, between Washington and Broadway, where, under the contract, the excavated dirt was to be deposited, was crossed by a deep hollow, to fill which would greatly improve that street, and benefit property owners thereon; that the point at which May street intersects Ninth is about 300 feet from said hollow. Sections 30 and 31 of chapter 31 of the general ordinances of the city were read in evidence, as bearing on the question, and are as follows: "Sec. 30. When any ordinance shall provide for any particular grading, and the excavation shall exceed the embankment in doing the work, the surplus material shall be used, as far as practicable, to make embankments elsewhere on such other streets, avenues, or highways in the city as the city engineer, in his discretion, may designate. All plans and specifications shall provide, as far as practicable, for the disposition of such surplus material. In case of any such grading, when the embankment or filling shall be in excess of the excavation, the material to be borrowed shall, as far as practicable, be taken from other streets, avenues, or highways in the city where excavation is to be made under the direction of the city engineer. Sec. 31. When any street, avenue, or highway, or part of either, is to be graded as provided in any ordinance, and the city engineer shall be of the opinion that the work can be done to better advantage in connection with the grading or otherwise improving of some other street, avenue, or highway, in whole or in part, he shall, if he deem it advisable, before proceeding to let a contract, report to the common council for its action a plan for doing the work ordered in connection with work elsewhere, so that two or more places may be improved together, and under one ordinance and contract, with a view to divide the cost of the work between different places, and lessen the charges on property."

1. The right to levy taxes, either general or special, is vested primarily in the legislature. The power to raise local taxes for municipal purposes may be, and generally is, delegated to and...