McMurry v. Kansas City and Thomas Kelley & Son
| Decision Date | 26 June 1920 |
| Citation | 223 S.W. 615,283 Mo. 479 |
| Parties | J. W. McMURRY, Appellant, v. KANSAS CITY and THOMAS KELLEY & SON |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. C. A. Burney, Judge.
Affirmed.
Clarence S. Palmer for appellant.
(1) The Kansas City Charter does not authorize the construction of any part of a joint district sewer outside the limits of the joint sewer district. The proposed outlet of the sewer in this case, of the estimated cost of $ 347,500, is located outside of the joint sewer district, outside the limits of the city, and outside the limits of the State. Sec. 8, Art 8, Charter; City of Fort Scott v. Kaufman, 44 Kan 137; Rector v. Board of Improvements, 50 Ark. 116; Deyo v. City of Newburg, 122 N.Y.S. 835. (2) The sewer provides for receiving drainage from the City of Rosedale in the State of Kansas. It is submitted that the power of special assessment does not authorize the construction of sewers for that purpose and charging the cost of the same against the land within the joint sewer district. Boyder v. Brattleboro, 65 Vt. 504; Park Ave. Sewers Appeal of Parker, 169 Pa. St. 433. (3) There is no authority in the Kansas City Charter for the construction of pumping stations and the payments of the cost thereof by special assessment. (4) The construction of laterals so great in number and extent, provided for herein at an expense of nearly $ 400,000, is unauthorized as part of the joint district sewer. Such appurtenances properly belong to a district sewer. Sec. 7, Art. 8, Charter. (5) The sewer is of such magnitude and character that it is unreasonable that it should be constructed as a joint district sewer. Benefits, obviously, differ greatly in different parts of the district and the assessment of the whole cost at a uniform rate per square foot renders the ordinance unreasonable and, therefore, invalid. State ex rel. v. Wilder, 217 Mo. 261; Hill v. Swingley, 159 Mo. 49; Blue v. Wentz, 54 Ohio St. 254; Commerce Trust Co. v. Blakely, 274 Mo. 52; Schwabe v. Moore, 172 S.W. 1157.
E. W. Harber, City Counselor, and Burr N. Mosman and J. C. Petherbridge, Assistant City Counselors, for respondent; M. A. Fyke of counsel.
(1) Kansas City has express power, under its charter to construct and maintain sewers, drains and all works necessary for the disposition of sewage; to declare the class to which the sewer belongs, and to provide for the manner of payment for each class. Sec. 1, Art. 1, p. 96, Charter; Heman v. Allen, 156 Mo. 534; Idem, 181 U.S. 402; Heman v. Schulte, 166 Mo. 409; Secs. 5, 6, 7, 8, Art. 8, pp. 323-326, Charter, (2) Kansas City has express power, under its charter, to create and establish joint sewer districts and to construct therein joint district sewers and to pay for the same by issuing special tax bills on the lands in such district. Sec. 8, Art. 8, Charter, p. 326; South Highland Land & Imp. Co. v. Kansas City, 172 Mo. 523; Prior v. Const. Co., 170 Mo. 450. (3) Whether or not the property of appellant and all of the property in the joint sewer district will be benefited by the construction of the proposed improvement, is a legislative and not a judicial question; the municipal legislature adjudged that all such property would be benefited thereby when it established the joint sewer district for this improvement; there being no fraud or oppression of the municipal legislature in passing the ordinances (and none is charged), such judgment of the municipal legislature is conclusive. Prior v. Const. Co., 170 Mo. 451; Heman v. Allen, 156 Mo. 534; Shumate v. Heman, 181 U.S. 402; Heman v. Schulte, 166 Mo. 409; Barber Asphalt Co. v. French, 158 Mo. 534; Idem, 181 U.S. 324; Johnson v. Duer, 115 Mo. 366; McGhee v. Walsh, 249 Mo. 283. (4) Appellant concedes the regularity of the proceedings up to and including the confirmation of the contract to do the work, and that they were in conformity with the Kansas City Charter relating to such matters. If they were in conformity with the charter, then they are valid and conclusive against appellant. Land & Imp. Co. v. St. Louis, 257 Mo. 301; McGhee v. Walsh, 249 Mo. 284. (5) Kansas City having the power to construct sewers, has also the power, expressed and implied, to construct an outlet to a sewer, although such outlet lies outside of the city limits and outside of the state, and to pay for the same as a necessary part of the cost of the sewer, by issuing special tax bills therefor upon the joint sewer district created and established for the purpose of constructing therein such sewer and its outlet. Sec. 1, Art. 1, p. 96, Charter; Par. 13, sec. 1, art. 3, p. 145, Charter; Sec. 10, art. 8, Charter; Sec. 25, art. 6, Charter; Laws 1911, pp. 334-335; Amendment to Charter, 1913; Hall v. Sedalia, 232 Mo. 355; Schueler v. Kirkwood, 191 Mo.App. 575; Land & Imp. Co. v. Kansas City, 172 Mo. 523; Page & Jones on Taxation by Assessment, pp. 507-8, secs. 329, 330; Page & Jones on Taxation by Assessment, p. 1085, sec. 636; 5 McQuillin, Mun. Corp. secs. 2037, 1434; 2 Dillon, Mun. Corp. (5 Ed.), sec. 776; 3 Dillon Mun. Corp. secs. 1148, 1028, and notes; Land & Imp. Co. v. City of Billings, 111 F. 976; Kraft v. Smothers, 103 Ark. 269; City of Coldwater v. Tucker, 36 Mich. 476; Maywood Co. v. Village of Maywood, 140 Ill. 216; Briggs v. Union Drainage Dist., 140 Ill. 53; Albertson v. Town of Chicago, 120 Ill. 226; Gage v. Chicago, 191 Ill. 210; Church v. People ex rel., 179 Ill. 205; Johnson v. Duer, 115 Mo. 377. (6) Kansas City has all the necessary implied powers to fully carry out and effectuate its express powers; having the express power to construct sewers, it has all the necessary implied power to construct outlets therefor, sewer pumping stations, laterals, connections and extensions, and all appliances and accessories necessary to make the sewer effective and usable and perform the function for which it was designed and planned. State ex rel. v. Wilder, 200 Mo. 105; Nevada to use v. Eddy, 123 Mo. 557-8; St. Louis v. Bell Tel. Co., 96 Mo. 628; Sedalia Gas Light Co. v. Mercer, 48 Mo.App. 651; Knapp v. Kansas City, 48 Mo.App. 492; Plattsburg v. Trimble, 46 Mo.App. 459; Water Co. v. Aurora, 129 Mo. 575; State v. Railroad, 75 Mo. 210; Springfield v. Weaver, 137 Mo. 667; State v. Butler, 178 Mo. 313; St. Louis v. Klaime, 180 Mo. 321; Chillicothe ex rel. v. Henry, 136 Mo.App. 474; Hayes v. Poplar Bluff, 263 Mo. 531; Hill v. Union E. L. & P. Co., 260 Mo. 73; Chambers v. St. Louis, 29 Mo. 543; Hafner v. St. Louis, 161 Mo. 34; Sasse v. Barkwell, 195 S.W. (Mo. App.) 542; Haussler v. St. Louis, 205 Mo. 656; 4 McQuillin, Mun. Corp., pp. 3035, 3036, 3080, 3084; Cunningham v. Ponca, 27 Okla. 853; Schueler v. City of Kirkwood, 191 Mo. 586. (7) The lands in Missouri are the servient estate, the lands in Rosedale, are the dominant estate; the servient owners must suffer the consequences of drainage flowing unrestrained on to their lands from the lands of the dominant owner. Land & Imp. Co. v. St. Louis, 257 Mo. 301. (8) The pumping stations, being a necessary and indispensable part of the sewer, can be paid for as a part of the cost of the sewer in the same manner as the sewer is paid for. McChesney v. Village of Hyde Park, 151 Ill. 634; Schueler v. City of Kirkwood, 191 Mo.App. 575; Fischer v. Chicago, 213 Ill. 268; Hall v. Sedalia, 232 Mo. 355; Northwestern University v. Wilmette, 230 Ill. 80; 5 McQuillin, Mun. Corp. sec. 2037, p. 4370; Page & Jones, Taxation by Assessment, sec. 330. (9) Since the laterals are a necessary part of the sewer system so devised and planned, they can be paid for in the same way by special tax bills issued upon the district established for that purpose. Page & Jones on Taxation by Assessment, p. 509, secs. 330, 331; Prior v. Construction Co., 170 Mo. 450; 5 McQuillin, Mun. Corp. sec. 2037, p. 4370; Heman v. Lyon, 277 Mo. 640; Schlapfer v. Town of Union, 53 N. J. L. 68. (10) It is within the power of Kansas City, under its charter, to provide for and construct this sewer as a joint district sewer, and cause it to be paid for in special tax bills on the district, irrespective of its size or cost. Whether the sewer could have been paid for in some other manner is immaterial and does not lessen nor deprive the city of its power to pay for it in the manner proposed by issuing special tax bills upon the joint sewer district created for that purpose. Sec. 5, art. 8, p. 323, Charter; Sec. 8, art. 8, Charter; Land & Imp. Co. v. Kansas City, 172 Mo. 523; Prior v. Const. Co., 170 Mo. 439; Kansas City v. Richards, 34 Mo.App. 521; Heman v. Allen, 156 Mo. 545; Moberly v. Hogan, 131 Mo. 19; Hill v. Swingley, 159 Mo. 45; McGhee v. Walsh, 249 Mo. 266.
In Banc
Appellant brought this suit in the Circuit Court of Jackson County to enjoin respondents from constructing a joint district sewer in Kansas City, Missouri, the outlet or termination of which was to be in the State of Kansas. Appellant is a property owner in the joint sewer district whose land would be subject to assessment for its proportionate part of the cost of the work. The contract for same has been awarded by said city to the other respondent.
Upon a hearing in the Circuit Court of Jackson County on the 1st day of April, 1920, there was a finding for defendants denying the application for an injunction, from which an appeal has been perfected to this court.
The contemplated joint district sewer is designed to receive the entire volume of the water carried by a stream designated as Turkey Creek, which now affords surface drainage to a large area of said city, and to divert this water into the proposed sewer.
The purpose sought to be accomplished is the prevention in the future of overflows after freshets, from which this section...
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