McGhee v. Walsh
| Decision Date | 08 April 1913 |
| Parties | JAMES W. McGHEE et al., Appellants, v. MICHAEL WALSH, COMMERCE TRUST COMPANY and KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Joseph A. Guthrie, Judge.
Affirmed.
L. A Laughlin for appellants.
(1) The theory upon which local assessments for improvements are made in this State is that a special and peculiar benefit is conferred upon the property assessed different from that conferred upon the general public. It follows as a necessary corollary of that proposition that the assessment cannot exceed the special benefit. The burdens of the whole community cannot be shifted to the shoulders of one man, who has only an interest in common with all the rest. The whole theory of local taxation or assessments is, that the improvements for which they are levied afford a remuneration in the way of benefits. A law which would attempt to make one person or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large would not be an exercise of the taxing power, but an act of confiscation. In effect it would be transferring the property of one individual to another. McCormack v. Patchin, 53 Mo. 36; Kiley v. Cranor, 51 Mo. 542; Zoeller v. Kellogg, 4 Mo.App. 168; Heman Const. Co. v Railroad, 206 Mo. 177. The tax bill here sued on is not regarded as a tax but as an assessment for improvements, and is not considered as a burden, but as an equivalent or compensation for the enhanced value which property derives from the improvement. Sheehan v. Hospital, 50 Mo. 155; St. Louis v. Allen, 53 Mo. 44; Wewell v. Cincinnati, 45 Ohio St. 424; Norwood v. Baker, 172 U.S. 269. (2) Land which can be drained by a sewer or drain can alone be deemed to be benefited by its construction. Bennett v. Emmetsburg, 138 Iowa 67; Lawrenceville v. Hennessey, 244 Ill. 464; Lawrence v. Grand Rapids, 131 N.W. 581; Railroad v. Portland, 25 Ore. 229, 22 L.R.A. 713; Paulson v. Portland, 16 Ore. 450; Gilmore v. Hentig, 33 Kan. 156; Hanscom v. Omaha, 11 Neb. 37; People ex rel. v. Rochester, 5 Lans. (N.Y.) 15. In assessments for the construction of sewers, it is usually provided that land benefited by the sewer shall be assessed for the construction thereof. This includes in the assessment district, land which receives an especial benefit from the construction of the sewer. Hungerford v. Hartford, 39 Conn. 279; Clapp v. Hartford, 35 Conn. 66; Chicago v. Adcock, 168 Ill. 221; Appeal of Wheeler, 80 N.Y.S. 204. And ordinarily means the land which can be drained by the sewer for the cost of which the assessment is levied. Duane v. Chicago, 198 Ill. 471; Mason v. Chicago, 178 Ill. 499; Butler v. Worcester, 112 Mass. 541; Warren v. Grand Haven, 30 Mich. 24. Land which is so located that by reason of the slope of the ground it cannot drain into the ditch in question is not benefited thereby. Klinger v. People ex rel., 130 Ill. 509; In re Van Buren, 79 N.Y. 384; State v. Pillsbury, 82 Minn. 359; Chicago v. Adcock, 168 Ill. 221; Zinser v. Buena Vista Co., 137 Iowa 660. (3) No assessment can be levied against land which will be benefited by a sewer only if the sewer is extended. Bickerdyke v. Chicago, 185 Ill. 280; Title Guar. & Tr. Co. v. Chicago, 162 Ill. 505; Vreeland v. Mayor, 58 N.J.L. 126; Hutt v. Chicago, 132 Ill. 352; Edwards v. Chicago, 140 Ill. 440; Clark v. Chicago, 214 Ill. 318. The ordinance projecting this improvement contemplated nothing beyond the construction of the sewers which had been built. No ordinance has been passed or proposed, for an extension or connecting sewer, which in its operations will benefit the prosecutors' lands by draining them. Such connections may never be made. The authorities who may have the control of public affairs, may never conclude to construct a sewer for the drainage of the prosecutors' land, and if they do they may locate it in such a way that its connections may not be with the present sewer. It is manifest that a probability depending on so many contingencies will have no appreciable influence on the value of the lands on which the burden is imposed and therefore is not an equivalent for the moneys which the prosecutors are required to disburse under this assessment. Railroad v. Elizabeth, 8 Vroom (N.Y.), 330. To impose a present lien and obligation to pay where the special benefit is future and contingent on the will of the municipality, would be a clear violation of the fundamental basis on which all such assessments rest. Appeal of Parker, 169 Pa. St. 433; Beechwood Ave. Sewer Cases, 179 Pa. St. 490; Kansas City v. Railroad, 230 Mo. 369. (4) Our courts will enjoin the collection of a special assessment where no benefit is conferred. Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493; St. Louis v. Richeson, 76 Mo. 485. When it appears that an ordinance passed in pursuance of such power is the creature of fraud or is the product of legislative whim or caprice merely, and in violation of common right, imposing a burden upon the citizen without any corre-sponding benefits to him, or the community of which he is a constituent, the courts will interfere for his protection. In other words, while the courts may not interfere with the legitimate use of legislative power, delegated to a municipal corporation, they may interfere to prevent its abuse. Skinker v. Heman, 148 Mo. 355; Hudlmeyer v. Dickinson, 143 Mich. 250; Dillon's Mun. Corps. (5 Ed.), sec. 589; Cooley on Taxation, p. 428; Allen v. Drew, 44 Vt. 174. And even where the power to legislate on a given subject is conferred on a municipal corporation, yet if the details of such legislation are not prescribed by the legislation, there the ordinance passed in pursuance of such power must be a reasonable exercise thereof, or it will be pronounced invalid. St. Paul v. Colter, 12 Minn. 41; Dunham v. Rochester, 5 Cow. 462; State v. Belvidere, 44 N.J.L. 350; Hawes v. Chicago, 158 Ill. 653; Wistar v. Philadelphia, 80 Pa. St. 505.
Lathrop, Morrow, Fox & Moore and Clarence S. Palmer for respondents.
(1) In the absence of fraud the establishment of sewer districts is determined solely by the mayor and common council with the approval of the board of public works. Sec. 7, art. 8, Kansas City Charter; Johnson v. Duer, 115 Mo. 266; Heman v. Schulte, 166 Mo. 417; Meier v. St. Louis, 180 Mo. 531; Webster v. Fargo, 181 U.S. 912; Prior v. Construction Co., 170 Mo. 439; French v. Asphalt Co., 181 U.S. 324. (2) All the land in a sewer district is assessable for the cost of sewers, although the sewers built at one time do not directly furnish drainage for the entire district. Heman v. Schulte, 166 Mo. 417; Prior v. Construction Co., 170 Mo. 439; St. Joseph ex rel. v. Gibson, 110 Mo. 455. (3) The continuation of sewers, by making sewer district 305 unchangeable, conferred a benefit on all the land in the district. Sec. 7, art. 8, Kansas City Charter; Parsons v. Dist. of Columbia, 170 U.S. 45.
OPINIONIn Banc.
-- Suit in equity, brought in the circuit court of Kansas City, by James W. McGhee and eighty-two 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 certain 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 $ 7313.04, 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, article 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...
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