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, First Division

May 5, 1896

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

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

The law upon which this proceeding was had, known as the park and boulevard amendment to the Kansas City charter, is in contravention of the constitution of Missouri. First. It casts the burden of paying for a park upon the real estate in one district composing about one third of the city instead of placing it upon the entire city. State ex rel. v Leffingwell, 54 Mo. 477; Griswell Case, 58 Mo. 196. Second. It provides for the assessment of benefits without personal service of process on the real estate owner. Seifert v. Brooks, 34 Wis. 443; Kundinger v City, 59 Mich. 355; Smith v. Cochrane, 37 P. 311. Third. No time is provided when the land condemned for park and boulevard purposes shall be paid for, it being left wholly with the court to determine the time within which the compensation must be paid. Fourth. The provision allowing ten years to pay the benefits assessed and leaving it in the power of the court to render judgment of condemnation which will be a lien and embargo upon the property condemned and prevent its sale for ten years, and at the same time making no provision for payment to the property owner for the land taken, is manifestly vicious and in violation of that provision of the constitution which provides for the payment of just compensation for property taken for public use. Fifth. Section 24 of article 10 of the city charter now in question provides for the issue and sale of park fund certificates in payment of the real estate purchased or condemned for park purposes. Such certificates being obligations of the city, are absolutely void, as Kansas City has already exhausted its debt-creating power. Sixth. Article 10, of the city charter, now in question, violates section 17 of article 9 of the state constitution in that it confers legislative powers on the board of park commissioners, thereby depriving the common council of Kansas City of its legislative power. Seventh. That provision which allows the jury of freeholders to apportion benefits upon the valuations appearing on the assessor's books is void. A provision of a condemnation law similar in character was pronounced unconstitutional by this court. Co. Ct. v. Griswold, 58 Mo. 199.

C. S. Palmer, D. J. Haff, and C. O. Tichenor for respondent.

(1) The use of land for a park in a densely populated district, such as a city, or a particular district in a city, is "a public use" in the constitutional sense, and that the condemnation of land for such purpose by the state or a municipality is a justifiable exercise of the right of eminent domain. Shoemaker v. U.S. 147 U.S. 282, and cases cited on page 297; County Court v. Griswold, 58 Mo. 175. (2) A park causes such benefits, in the way of increased value to land in the district within which such park is located, as will justify special assessments against the private property so benefited to pay compensation for the taking of land for the park. Owners of Ground v. Mayor, 15 Wend. 374; Holt v. City Council, 127 Mass. 408; Foster v. Park Commissioners, 133 Mass. 321; Matter of Commissioners Central Park, 63 Barb. 282. (3) The notice to the property owners was sufficient. St. Louis v. Richardson, 76 Mo. 470; St. Louis v. Ranken, 96 Mo. 497; Buddecke v. Ziegenhein, 122 Mo. 239. (4) The point that no time is provided within which the land taken shall be paid for is not well taken. Plum v. City of Kansas, 101 Mo. 525. The possession of the property owner is not interfered with until compensation is made. That a law is unjust or impolitic or oppresive will not justify a court in declaring it illegal. Co. Ct. v. Griswold, 58 Mo. 175; Hamilton v. St. Louis Co., 15 Mo. 3; Forsythe v. City of Hammond, 68 F. 774. (5) The issuance of the park fund certificates constitutes no valid objection to the charter. There can be no more liability of the city on these certificates than upon a special tax bill. Quill v. City, 124 Ind. 292; Silkman v. City, 31 Wis. 555; Fletcher v. Oshkosh, 18 Wis. 240. (6) No legislative authority is conferred on the board of park commissioners. Co. Ct. v. Griswold, 58 Mo. 175; State v. Hennepin Co., 33 Minn. 235. (7) The charter of Kansas City supersedes the laws of the state and furnishes the only provision for ascertaining benefits and regulating the establishment of parks. State ex rel. v. Field, 99 Mo. 352; Kansas City, etc., v. Scarritt, 127 Mo. 642. (8) The jury is not allowed to apportion benefits upon the valuation appearing on the assessor's books unless they shall find that it is a correct apportionment.

OPINION

Brace, P. 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 sixth 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: First. 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."

1. 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. United States, 147 U.S. 282, 37 L.Ed. 170, 13 S.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 ex rel. v. Leffingwell, 54 Mo. 458, in which it was held that an act of the legislature imposing a tax upon the real estate in a district surrounding "Forest 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 v. Mayor, 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 can not be taken for public use without a just...