Kansas City v. Bacon

• Citation: 57 S.W. 1045,157 Mo. 450
• Parties: KANSAS CITY v. BACON et al., Appellants
• Decision Date: 30 June 1900
• Court: Missouri Supreme Court

57 S.W. 1045

157 Mo. 450

KANSAS CITY v. BACON et al., Appellants

Supreme Court of Missouri

June 30, 1900

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

Affirmed.

F. M Black, Brown, Chapman and Brown, Warner, Dean, McLeod & Holden, Langston Bacon for appellants.

(1) The eleventh instruction, given at the request of Kansas City, is erroneous in this, that it does not properly define the benefit to the city at large. Newby v. Platte County, 25 Mo. 258; Garrett v. St. Louis, 25 Mo. 505; Sheehan v. The Good Samaritan Hospital, 50 Mo. 155; Neenan v. Smith, 50 Mo. 528; Kansas City v. Morton, 117 Mo. 446; Cooley on Tax. (2 Ed.), p 606; Macon v. Patty, 57 Miss. 378; Kansas City v. Bacon, 147 Mo. 299; Norwood v. Baker, 172 U.S. 269; Zoeller v. Kellogg, 4 Mo.App. 163; Loeb v. Trustees, 91 F. 37; Fay v Springfield, 94 F. 409; Charles v. Marion, 98 F. 361; Hutchinson v. Storrie, 51 S.W. 848; Sears v. Street Com., 53 N.E. 876; (2) The instructions, verdict and judgment violate the 14th amendment to the Constitution of the United States. Yick Wo v Hopkins, 118 U.S. 356; Railroad v. Chicago, 166 U.S. 226; Holden v. Hardy, 169 U.S. 366. The question last cited, being in the record, may be raised in this court. Oxley Stave Co. v. Butler, 166 U.S. 648; Scott v. McNeal, 154 U.S. 37; County, etc. v. Railroad, 13 F. 145; Giozza v. Tiernan, 148 U.S. 657. (3) The judgment should have been arrested and should now be set aside without regard to the erroneous instructions. Sears v. Street Com., 53 N.E. 876; Hanscom v. Omaha, 11 Neb. 37; Dietz v. Neenah, 91 Wis. 422; Halpin v. Campbell, 71 Mo. 493; Corrigan v. Gage, 68 Mo. 541; Johnson v. Milwaukee, 40 Wis. 324; Watkins v. Zwietusch, 47 Wis. 513. (4) The benefits laid against appellants' property were not special benefits, but were general benefits, and for this reason they were invalid. Lewis on Em. Dom., sec. 476; Roberts v. Board of Com., 21 Kan. 251; Railroad v. Chrystal, 25 Mo. 546; Railroad v. Richardson, 45 Mo. 468; Corrigan v. Gage, 68 Mo. 541; Thomas v. Gain, 35 Mich. 135; Vreeland v. Jersey, 43 N. J. L. 135; Dillon on Mun. Corp. (4 Ed.), sec. 809; Hook v. Railroad, 133 Mo. 313; Village of Morgan Park v. Wishall, 40 N.E. 611; Hickman v. City of Kansas, 120 Mo. 122; Hanscom v. Omaha, 11 Neb. 37; Toledo v. Brown, 2 O. N. P. 45; Trosper v. Commissioners, 27 Kan. 391; Allen v. Charleston, 109 Mass. 273; Hilburn v. County of Suffolk, 120 Mass. 399; Farwell v. Cambridge, 11 Gray 413. (5) Private property can not be assessed several times for special benefits for the same kind of improvements located in different parts of the city. Trosper v. Commissioners, 27 Kan. 394; Halpin v. Campbell, 71 Mo. 493; Railroad v. Unsicker, 22 Ill. 221. (6) The question whether a given tax is one for a purpose general or local in its character is a question for the determination of the courts. Thomas v. Gain, 35 Mich. 135; Chicago v. Blair, 149 Ill. 310; Norwood v. Baker, 172 U.S. 269; Village of Morgan Park v. Wishall, 40 N.E. 611; Choteau v. Leffingwell, 54 Mo. 469; Wells v. City of Weston, 22 Mo. 384. (7) There is no evidence in this case to sustain this verdict. The evidence introduced by the park board to establish that appellants' property remotely located from the park was specially benefited, wholly failed to prove it. The benefits shown by the testimony were those which were general in their character, and nothing more. Hook v. Railroad, 133 Mo. 313. (8) The schedule of benefits appear to be arbitrary throughout, and for that reason should be set aside. Johnson v. Milwaukee, 40 Wis. 324; Watkins v. Zwietusch, 47 Wis. 513. (9) The verdict of the jury should be set aside because of the omission of property subject to local assessment. Elliott on Roads and Streets, p. 403; Railroad v. Decatur, 147 U.S. 190; s. c., 126 Ill. 92; Railroad v. Moline, 158 Ill. 64; Railroad v. Kankakee, 164 Ill. 608; 28 L. R. A. 249; Scammon v. Chicago, 42 Ill. 192; Chicago v. Baer, 41 Ill. 306; Parmalee v. Chicago, 60 Ill. 267; Dyer v. Harrison, 63 Cal. 447. See, also, dissenting opinion in Kansas City v. Bacon, 147 Mo. 283. (10) There was no examination of the benefit district beyond that in the vicinity of the park; the jury did not consider it in making up their verdict; and for that reason the verdict in that respect was arbitrary and oppressive. Johnson v. Milwaukee, 40 Wis. 324; Watkins v. Zwietusch, 47 Wis. 513. There are no presumptions in favor of these proceedings. Railroad v. Winnebago County, 89 Wis. 435; Kiley v. Oppenheimer, 55 Mo. 376; Bruin-Bambrick Construction Co. v. Geist, 37 Mo.App. 514; County Court of St. Louis v. Griswold, 52 Mo. 176. (11) The instructions given to the jury for determining the value of the real estate taken were erroneous and conflicting. Kansas City v. Bacon, 147 Mo. 283.

D. J. Haff for respondent.

(1) The eleventh instruction given at the request of Kansas City is not erroneous. It correctly defines the rule upon which benefits in these proceedings must be assessed, whether to the city at large, the property of the city, or to the individual property owner within the benefit district. Charter of Kansas City, article 10, section 15; Kansas City v. Morton, 117 Mo. 446; Garrett v. St Louis, 25 Mo. 511; Newby v. Platte Co., 25 Mo. 271; Sheehan v. The Good Samaritan Hospital, 50 Mo. 158; Neenan v. Smith, 50 Mo. 529. (2) The word "benefits" as used in the charter provision in question means benefits to property, the enhancement of its value. They must be tangible, capable of being estimated and measured with a reasonable degree of certainty, otherwise they can not be assessed either against the city at large, or the property within the benefit district. Charter of Kansas City, article 10, sec. 15; Garrett v. St. Louis, 25 Mo. 511; Kansas City v. Morton, 117 Mo. 457; Newby v. Platte County, 25 Mo. 271; Sheehan v. The Good Samaritan Hospital, 50 Mo. 158; Neenan v. Smith, 50 Mo. 529; McCormack v. Patchin, 53 Mo. 36. (3) No question of the violation of the Fourteenth Amendment to the Constitution of the United States can be raised in this court upon the record in this case. The evidence supports the instructions, the verdict and the judgment, and the motions for new trial do not complain either; first, that the amount assessed against complainants' property was in excess of the benefits to such property, or, second, that the amount of benefits to the city at large were in excess of the amount assessed against the city by the verdict of the jury. Village of Norwood v. Baker, 172 U.S. 269; Kansas City v. Bacon, 147 Mo. 259. (4) The use of land for a park is a "public use" and a "local improvement" justifying special assessment against private property benefited to pay compensation therefor. Kansas City v. Bacon, 147 Mo. 273; Kansas City v. Ward, 134 Mo. 172; Shoemaker v. U.S. 147 U.S. 302; Owners of Ground v. Mayor of Albany, 15 Wend. 376; Holt v. City Council of Somerville, 127 Mass. 413; Foster v. Park Commissioners, 133 Mass. 338; Matter of Commissioners Central Park, 63 Barb. 282; State v. Dist. Court of Hennepin Co., 33 Minn. 235; Kedzie v. West Chicago Park Coms., 114 Ill. 280; Brooklyn Park Coms. v. Armstrong, 45 N.Y. 234; Briggs v. Whitney, 159 Mass. 97; People v. Brislin, 80 Ill. 423; Dunham v. People, 96 Ill. 331; R. S. of Illinois 1874, chap. 105, p. 733. "The quantity of land to be taken for public use is not a judicial but a legislative question." U. S. v. Railroad, 160 U.S. 669. (5) The determination as to whether private property is benefited and the amount of such benefits are mere questions of fact for the jury, and an appellate court will not interfere with the report of the commissioners except in the case of gross error, prejudice or corruption. Kansas City v. Bacon, 147 Mo. 281; City of Kansas v. Baird, 98 Mo. 217; Kansas City v. Morton, 117 Mo. 446; Shoemaker v. U.S. 147 U.S. 306; Mills on Eminent Domain, 246; Owners of Ground v. Mayor of Albany, 15 Wend. 377; Matter of Extension of Church Street, 49 Barb. 455. (6) The method pursued by the jury in making an ad valorem assessment of benefits is in accordance with and is permitted by the charter of Kansas City, and has been uniformly upheld by the decisions of this State as not in conflict with the Constitution. Charter of Kansas City, art. 10, sec. 16; Laws 1849, p. 519; Lockwood v. St. Louis, 24 Mo. 22; Newby v. Platte Co., 25 Mo. 270; Morrison v. Morey, 146 Mo. 543; Garrett v. St. Louis, 25 Mo. 510; Kansas City v. Ward, 134 Mo. 186; Kansas City Grading Company v. Holden, 107 Mo. 310. (7) The finding and assessment of benefits against the city by the jury in this case to the amount of one dollar was permissible and lawful, and affords no right or justification for interference by the appellate court. Kansas City v. Smart, 128 Mo. 274; Kansas City v. Bacon, 147 Mo. 279; Kansas City v. Holden, 107 Mo. 312; Cooley on "Taxation" (2 Ed.), 164. (8) In their verdict the jury found certain property within the benefit district not benefited and did not assess the same with benefits. This was their right and duty; they had no authority to assess property which they did not deem benefited, nor does the charter contemplate that all property within the benefit district may necessarily be benefited. Kansas City v. Bacon, 147 Mo. 281; Kansas City v. Baird, 98 Mo. 220; Kansas City v. Morton, 117 Mo. 453; Scammon v. Chicago, 42 Ill. 192; Owners of Ground v. Mayor of Albany, 15 Wend. 377. (9) Appellants, in their motions for new trial, made no complaint, either; first, that their property was not benefited in the amount assessed against it; or, second; that the assessment of one dollar against the city was too small or that the city was not assessed with the full amount of benefits which it received from the improvement. An...