Kansas City v. Ward

• Decision Date: 05 May 1896
• Citation: 35 S.W. 600,134 Mo. 172
• Parties: KANSAS CITY v. WARD et al.
• Court: Missouri Supreme Court

35 S.W. 600

134 Mo. 172

KANSAS CITY v. WARD et al.

Supreme Court of Missouri, Division No. 1.

May 5, 1896.

MUNICIPAL CORPORATIONS — CONSTITUTIONAL LAW — CREATION OF PARKS — BENEFITS — ASSESSMENTS — CERTIFICATES — INDEBTEDNESS.

1. Kansas City Charter, art. 10 (amended June 6, 1895), providing that the special benefit to property in proximity to a proposed park, over and above the benefits to be derived therefrom by the city generally, is to be charged against the property so benefited, is not in violation of the constitutional provision which forbids the taking of private property for public use without just compensation.

2. The charter provides that benefit can be assessed against the real estate of the citizen only in pursuance of an ordinance setting out the metes and bounds of the district within which private property shall be deemed benefited by the proposed improvement, and of a judgment of the circuit court in a proceeding in which the citizen may be present and be heard. Held not invalid because providing for a notice by publication without personal service of process.

3. The constitutional guaranty that "private property shall not be taken or damaged for public use without just compensation, * * * and, until the same shall be paid to the owner, * * * the property shall not be disturbed or the proprietary rights of the owner therein divested," is not violated by judicial proceedings to determine whether the property can be taken for the given use, and how much must be paid for it, or by the fact that provisions for a fund for payment of the compensation may prove inadequate; since in no event can the property be taken until paid for, and in the meantime the owner is not disturbed in his possession.

4. Park fund certificates issued in amount not exceeding assessments against private property for park purposes, under Kansas City Charter, art. 10, which provides that "the city shall be liable on such certificates to the holders thereof for the sums collected from the special assessments upon which said certificates are issued, and not otherwise," amount only to assignments of the benefit assessments, and are not a debt, within the meaning of the constitutional inhibition limiting indebtedness of municipalities.

5. Under such article, the board of park commissioners are mere administrative officers or agencies for the performance of certain duties in respect to selection of places for, and the management of, public parks, subordinate to the control of the municipal council by ordinance, and exercise no legislative powers in violation of Const. art. 9, § 17.

6. In so far as such article attempts to regulate the practice of the circuit courts contrary to the general laws of the state, the charter provisions control, in accordance with the statutory enactment that, after ratification and adoption, the charter should supersede all laws of the state then in force in terms governing or pertaining to cities of that class. State v. Field, 12 S. W. 802, 99 Mo. 352, followed.

7. The section of such article providing that "if the jury shall find that any number of tracts or parcels of land within the benefit district are benefited ratably in proportion to the assessed value thereof, as shown by the books of the assessor, they may so assess the same," does not require them to take the assessor's book as a guide even, unless they shall find it is a proper guide.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Proceedings to condemn real estate of H. C. Ward and others for a public park in Kansas City. From a judgment of condemnation, defendants appeal. Affirmed.

J. V. C. Karnes, W. J. Ferry, Wash Adams, and Hugh C. Ward, for appellants.

C. S. Palmer, D. J. Haff, and C. O. Tichenor, for respondent, cited, in relation to the validity of the assessment for the park: Owners of Ground, etc., v. Mayor, etc., of Albany, 15 Wend. 374, 376; Holt v. City Council, 127 Mass. 408, 413; Foster v. Board of Com'rs, 133 Mass. 321, 338; In re Commissioners Central Park, 63 Barb. 282; Shoemaker v. U. S., 147 U. S. 282, 302, 13 Sup. Ct. 361; State v. District Court of Hennepin Co., 33 Minn. 235, 22 N. W. 625; People v. Brislin, 80 Ill. 423; Kedzie v. Park Com'rs, 114 Ill. 280, 2 N. E. 182; Park Com'rs v. Armstrong, 45 N. Y. 234; Briggs v. Whitney (Mass.) 34 N. E. 179.

BRACE, C. J.

This is a proceeding to condemn real estate of the appellants and others, for a public park in Kansas City, under the provisions of article 10 of the charter of said city, as amended on the 6th of June, 1895. The regularity of the proceedings under the charter is not questioned, nor is the amount of compensation allowed appellants complained of, but the validity of the provisions contained in said article is challenged on several grounds, that will be noticed in their order. By the article, the city is divided into park districts, and there is established an executive department, known as the "Board of Park Commissioners," having charge of the parks, parkways, and boulevards of the city. Upon the recommendation of this board to the common council, and an ordinance passed by the council in pursuance thereof, by a proceeding provided for in the circuit court of Jackson county, real estate in said city may be condemned and taken for such parks. It is contended that this law is unconstitutional:

1. Because it casts the burden of paying for a park upon the real estate of a "Benefit District" created under its provisions, composed of a part only of the area of the city, instead of placing it upon the entire city. The provision against which this objection is urged is as follows: "The jury of freeholders, to pay compensation for the land purchased, taken, or damaged, shall estimate the amount of benefit to the city at large, inclusive of any benefit to the property of the city, and shall estimate the value of the benefit of the proposed improvement to each and every lot, piece, and parcel of private property, exclusive of the buildings and improvements thereon, within the benefit district, if any benefit is found to accrue thereto; and in case the total of such benefits, including the benefits assessed to the city at large, equals or exceeds the compensation assessed, or to be paid for the property purchased, taken, or damaged, then said jurors shall assess against the city the amount of the benefits of the city as aforesaid, and shall assess the balance of the cost of such improvements against the several lots and parcels of private property found benefited; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as the benefit of each lot or parcel bears to the whole benefit to all the private property assessed." Public parks in densely-populated cities are manifestly essential to the health, comfort, and prosperity of their citizens. It is universally conceded, and not disputed in this case, that such improvements are a public use, within the meaning of the constitution, for the purposes of which the land of the citizen may be taken upon payment of a just compensation. County Court v. Griswold, 58 Mo. 175; Shoemaker v. U. S. 147 U. S. 297, 13 Sup. Ct. 361, and cases cited. They confer not only a general benefit upon all the citizens of the municipality, but, over and above this, a special and peculiar benefit, upon the citizens owning real estate in the immediate vicinity thereof, in the enhancement of the pecuniary value of their property. The law in question casts the burden of the general benefit upon the city, and of this special and peculiar benefit upon the property of those who are its recipients, and, in so doing, violates no constitutional provision, is eminently just and proper, and within the principle upon which special assessments for local benefits derived from public improvements have been uniformly sustained. If this were a law providing in like manner for charging a proportionate part of the cost of a public highway in the city of Kansas upon the local property specially benefited thereby, its validity could not be questioned for a moment. But it is insisted that a public park is not within the principle governing in cases of public highways, and in support of this contention we are cited to the case of State v. Leffingwell, 54 Mo. 477, in which it was held that an act of the legislature imposing a tax upon the real estate in a district surrounding "Forrest Park," outside the limits of the city of St. Louis, to pay for the land required for said park, which was declared to be "a municipal purpose of great importance to the city of St. Louis, conducive alike to the dignity and character of the city, and the recreation, health, and enjoyment of its inhabitants," was unconstitutional and void, for obvious reasons stated in the opinion. The law in question in that case is so different from the one under consideration, and the distinction between that case and that of Owners of Ground, etc., v. Mayor, etc., of Albany, 15 Wend. 374, which is analogous to the one in hand, so plainly pointed out in the opinion, that the Leffingwell Case would probably not have been cited in support of appellant's contention but for the following language, used by Judge Adams in the opinion on motion for rehearing: "Private property cannot be taken for public use without just compensation. Special benefits cannot form any part of such compensation, unless they attach to and become a part of the taxed property. The phrase `special benefits' is a misnomer as applied here. A lot holder has a property interest or easement in the adjoining street, independent of the general public; and the improvement of the street may be a special benefit, or an absolute injury to his lot for that purpose. If it be a benefit, he must pay for it; and a special tax may be levied on his lot for that purpose. But adjacent property holders can have no easement or property right whatever in a park. Their interest is...