McGhee v. Walsh

• Decision Date: 28 March 1913
• Citation: 155 S.W. 445,249 Mo. 266
• Parties: McGHEE et al. v. WALSH et al.
• Court: Missouri Supreme Court

155 S.W. 445

249 Mo. 266

McGHEE et al. v. WALSH et al.

Supreme Court of Missouri.

March 28, 1913.

Rehearing Denied April 8, 1913.

1. MUNICIPAL CORPORATIONS (§ 48) — SPECIAL CHARTERS — FORCE AND EFFECT.

Where a special charter is adopted by the voters of a city having a population of more than 100,000 inhabitants pursuant to the authority conferred by Const. art. 9, § 16, and Laws 1887, p. 42, it automatically supersedes the statutory provisions for the government of cities of that class so far as it does not conflict with the Constitution and laws of the state.

2. CONSTITUTIONAL LAW (§ 65) — DELEGATION OF POWER — ADOPTION OF SPECIAL CHARTERS.

The power conferred upon the people of cities of more than 100,000 population by Const. art. 9, § 16, and Laws 1887, p. 42, to adopt charters for their own government does not violate the rule that legislative power is not delegable.

3. CONSTITUTIONAL LAW (§ 290) — MUNICIPAL CORPORATIONS (§ 407) — DUE PROCESS OF LAW — PUBLIC IMPROVEMENTS — ASSESSMENT OF BENEFITS.

Under Kansas City Charter, art. 8, § 7, providing for the establishment of sewer districts which may be subdivided or changed previous to the construction of any district sewer therein, but which shall not be changed after the construction of a district sewer, and providing that the cost of constructing, etc., any district sewer shall be charged against the lots in the district, the common council, when advisable, could provide for sewers in a part only of such district and assess the cost on the whole district, although the unsewered portions received no benefit, except the vested right to have the cost of sewers in that part of the district, when subsequently constructed, paid by the whole district as it then existed; this not constituting a taking of property without due process of law contrary to Const. U. S. Amend. 14, § 1, and Const. Mo. art. 2, § 30, where notice and an opportunity to be heard was given.

4. MUNICIPAL CORPORATIONS (§ 450) — PUBLIC IMPROVEMENTS — SEWERS — POWERS OF COMMON COUNCIL.

The establishment of sewer districts in a city is intrusted to the common council, and its action is conclusive against a collateral attack.

5. MUNICIPAL CORPORATIONS (§§ 488, 489) — SEWER DISTRICTS — ACTIONS TO ATTACK ESTABLISHMENT.

The inclusion of lots in a sewer district by the common council of a city could not be attacked as unreasonable and oppressive in a proceeding to enjoin the collection of assessments of benefits, where it was not attacked by a timely proceeding following the establishment of the district.

In Banc. Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge.

Action by James W. McGhee and others against Michael Walsh and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Suit in equity, brought in the circuit court of Kansas City by James W. McGhee and 82 others, similarly situated and affected, as plaintiffs, against Michael Walsh and the Commerce Trust Company, as holders of certain tax bills which were issued against plaintiffs and made liens on their property, for the construction of sewers in sewer district No. 305 of said city, to enjoin the sale and transfer and to cancel said tax bills.

Plaintiffs are the owners of cértain parcels and lots of real estate situate in said Kansas City in Oliver Park addition, Niagara place, and Warder's addition thereto, and lying within the sewer district aforesaid. The tax bills in question amount, in the aggregate, to $7,313.04, out of the total of $59,910.37 issued for the whole work as done when the action was begun. Defendant Walsh obtained the tax bills for doing the work of constructing the sewers; the manner in which defendant Commerce Trust Company got them, or part of them, is not disclosed, nor is it pertinent.

The further facts, history, chronology, and the bone of contention are these: On May 7, 1909, Kansas City, acting under authority of section 7, art. 8, of the charter, established sewer district No. 305. By ordinance No. 3524, approved December 10, 1909, the construction of the sewer in question was authorized. The resolution of the board of public works, providing for the construction of the sewer in question, was adopted May 25, 1909. June 11, 1909, was fixed as the date of hearing concerning the proposed improvements, when any and all property owners interested in such improvements might, by written petition or otherwise, present their views regarding the improvement. The resolution and the notice of the date of hearing were duly published in the paper doing the city printing from May 30 to June 10, inclusive, 1909. After the hearing the board determined that said improvements should be made, and the contract was awarded to Michael Walsh, one of the respondents. There seems to be no claim that the proceedings were not taken in accordance with the charter of Kansas City; nor is there any claim that the work was not done in accordance with the contract. The facts upon which appellants rely are all stated in this brief paragraph of the petition: "That all said lots or parcels of land owned by plaintiff lie below the bottom of the sewers constructed by defendant Walsh under said ordinance 3542 and cannot be drained into said sewers, and all of said sewers are of no benefit whatever to the lots or parcels of land owned by the plaintiffs."

Defendants contended in the court below, and contend here, that the petition answers itself when it alleges that the sewer district was created by city ordinance and that proceedings in accordance with the charter were taken to construct the district sewer; yet, in addition to those facts, the record discloses alleged engineering reasons why it was not only proper, but the only reasonable thing to do, to construct sewers at the time this work was done, only in the west part of the district, and to leave the property upon the streets where plaintiff's lots are located, to be taken care of by subsequent sewers.

Appellants offered in evidence an ordinance describing a former sewer district, No. 252; the ordinance establishing the district was excluded by the court, but appellants make no special complaint of this action. It appears that the most easterly line of sewer district 252 coincided with the easterly city limits as existing prior to the extension in 1909. Sewer district 305, as created, lies on the west side of the slope of a watershed, the drainage line of which runs practically north and south. Prior to the extension of the city limits, which occurred April 6, 1909, and the case involving the authority for which is reported in State ex inf. v. Kansas City, 233 Mo. 162, 134 S. W. 1007, there was only a narrow strip between the eastern line of a little stream running through this low ground and the eastern city limits, and, at the time of the passage of the original ordinance in 1903, it was deemed advisable to include the tract up to the city limits for part of the eastern boundary of the district. After the extension of the city limits, however, the council created the present sewer district 305, with its eastern line following generally the lowest point of the watershed and extending up the hill westerly, so that there was a large difference in the elevation between the eastern and western boundaries of the district. The district also sloped to the south. The record shows that, prior to the commencement of the proceedings for the construction of the sewer in question, a joint district sewer had been built following generally the line of the stream on the east side of sewer district 305. With the development of the city, this joint sewer had become inadequate, and the expert testimony of the engineers shows that a larger joint district sewer was necessary. It seems that, under the Kansas City charter, joint district sewers are paid for by the land in the different sewer districts which are united to form the joint sewer district, and that there was a tract of about 260 acres of land which lay outside the old city limits, but within the new city limits, which could properly be assessed for a proportional cost of the new joint district sewer. While the extension of the city limits occurred in 1909, yet litigation attacking the validity was begun and was not decided until March 2, 1911, by the Supreme Court. While this litigation was pending, contractors would not take substantial contracts involving that question. It was, it is urged, therefore impracticable for the city to build a larger joint district sewer without leaving out of the assessment this tract of land of 260 acres. In the meantime the western part of this district was being built up so that sewers were needed; the counsel therefore passed an ordinance providing for the construction of sewers, except on two or three streets lying on the eastern border of the district, and on which streets is situate the property of plaintiffs; those streets were left for future action of the council.

The record also shows that the rock encountered in the construction of sewers in the eastern part of this sewer district was especially hard to excavate. It shows the judgment of an engineer of the city engineering department of 11 years' service, that the method taken of including the whole territory in sewer district No. 305, and in building part of the sewers at that time and leaving the remainder to be taken care of as needed, was cheaper for the property owner than to have made two districts out of the present territory of district 305. It was in evidence by defendant that proper engineering would require that the discharge of the sewers from the part of the district not sewered at that time was properly into the new joint district sewer which was not then constructed, and that if an attempt were made to discharge into the creek, instead of the new joint district sewer, the outfall would be carried across private property. There was evidence tending to show that the sewers which were constructed took...