R. H. Field v. Kansas City
| Decision Date | 13 May 1908 |
| Parties | R. H. FIELD et al., Appellants, v. KANSAS CITY et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
R. H Field for appellants.
(1) As a tax, the levy for park and boulevard purposes is unconstitutional and void, because it is a denial to appellants, as Kansas City taxpayers, of the equal protection of the laws and a violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. State ex rel. v. Railroad, 195 Mo. 228; Dyar v. Farmington, 70 Me. 515. (2) As a tax or as a special benefit assessment this levy is void (as is sec. 33 of article 10 of the city charter authorizing it) because it takes or attempts to take appellants' property for the private use of others, to-wit, for the private use of those who own lands fronting on the parks and boulevards in Westport Park District, and therefore violates both the State and Federal Constitution. State ex rel. v Switler, 143 Mo. 287; St. Charles v. Nolle, 51 Mo. 122; Cooley, Const. Lim. (6th Ed.), 606; Morrison v Morey, 146 Mo. 561; Cole v. La Grange, 113 U.S. 1; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 167; Nickey v. Stearnes Ranchos Co., 126 Cal. 150; In the matter of Market Street, 49 Id. 546; In re Theresa Drainage Dist., 90 Wis. 301; Reaves v. Treasurer Wood Co., 8 Ohio St. 346; Cypress Pond Draining Co. v. Hooper, 2 Metc. (Ky.) 350; In re Tuthill, 163 N.Y. 133. The constitutional guarantee of due process of law, without more, protects private property against taxation for private use. Macon v. Patty, 57 Miss. 379; Stratton Claimants v. Morris Claimants, 89 Tenn. 535; Robinson v. Swope, 12 Bush (Ky.) 22; In re Tuthill, supra; In re Jacobs, 98 N.Y. 111; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 166; Railroad v. Nebraska, Id. 403. (3) As a special benefit assessment, the levy in this ordinance cannot be sustained because it is not determined therein nor in section 33 of article 10 of the city charter, that the lots of land in the park district thereby taxed, respectively, received any exceptional benefit, not received by other lots of land in the city outside of the district taxed or received benefit in a sum equal to the amount of the tax; and when the conceded allegation is, that the lots thus taxed did not receive such exceptional benefit or such extent of benefit, the invalidity of such assessment is made conclusive. Kansas City v. Morton, 117 Mo. 453; Beechwood Avenue Sewer Cases, 179 Pa. St. 490; Macon v. Patty, 57 Miss. 379; Hanscon v. Omaha, 11 Neb. 37; Chicago v. Adcock, 168 Ill. 221; Crane v. West Chicago Park Comrs., 153 Ill. 348; Lee v. Ruggles, 62 Ill. 427; St. John v. City, 50 Ill. 92; State ex rel. v. City, 37 N. J. L. 330; Vreeland v. Jersey City, 43 N. J. L. 135; Thomas v. Gain, 35 Mich. 155; People ex rel. v. Jefferson Co. Ct., 55 N.Y. 604; In matter of 14th Avenue, 3 Wend. 452; State ex rel. v. City Council, 12 Rich. (S. C. L.) 702; Taylor v. Palmer, 31 Cal. 241; Paulsen v. Portland, 16 Ore. 450; Sperry v. Flygare, 80 Minn. 325; State ex rel. v. Brill, 58 Minn. 156; Newby v. Platt Co., 25 Mo. 271; Garrett v. St. Louis, Id. 512; Morrison v. Morey, 146 Mo. 564; Dyar v. Farmington Village Corporation, 70 Me. 514; Dillon on Munic. Corp. (4 Ed.), sec. 761; Cooley on Taxation (2 Ed.), 606-625-626. (4) As such special benefit assessment, against appellants' lots of land in Westport Park District, this tax levy denies appellants the equal protection of the laws extended to the owners of untaxed lands, in other parts of Kansas City, conceded to be likewise benefited by the parks and boulevards of the Westport Park District. Such discriminative taxation violates section 1 of the Fourteenth Amendment to the Constitution of the United States. Railroad Tax Cases, 13 F. 733; State ex rel v. Railroad, 195 Mo. 228; Railroad v. Ellis, 165 U.S. 150; Dyar v. Farmington, 70 Me. 515. Section 33 and section 31 of article 10 of the Kansas City charter must be construed together, and so construed makes a case of unequal protection of the law, in relieving the lands abutting on boulevards, after the first improvement thereon, from the power of special assessment, as on other streets. Authorities last cited. And see, also, Anderson v. Milwaukee, 82 Wis. 279; State v. Julow, 129 Mo. 176. (5) The tax levy authorized by section 33 of article 10 of the Kansas City charter is essentially a tax and not a special benefit assessment, for two reasons: First. Because the grant of power to tax the lots of land in this district is not based upon, nor restricted to, the amount, ratio or existence of special benefit to such lots respectively. Authorities cited in point 3, supra. Second. Because this section of the charter requires an annual levy of assessments on the assessed value of the land, as any ordinary general tax is levied, and requires no valuation or determination of the special benefit of the parks and boulevards of the district to the lands taxed. These two forms of tax, the one upon the entire value of the property taxed, and the other upon only the increase of value or benefit to the property taxed, are obviously different in scope and extent. Crane v. West Chicago Park Comrs., 153 Ill. 348; Newby v. Platte Co., 25 Mo. 271; Morrison v. Morey, 146 Mo. 564; Dyar v. Farmington, 70 Me. 516; People ex rel. v. Jeff. Co. Ct., 55 N.Y. 604; Vreeland v. Jersey City, 43 N. J. L. 135; Lee v. Ruggles, 62 Ill. 427; St. John v. City, 50 Ill. 92; Taxation of Mining Claims, 9 Colo. 635; Cooley on Taxation (2 Ed.), 625-626. (6) The extent of such special benefit, and especially the ratio of benefit of a public improvement to and between the abutting lands and the non-abutting lands, in a prescribed benefit district, is at least a quasi-judicial question. Dillon, Municipal Corp. (4 Ed.), sec. 802a; Norfolk v. Ellis, 26 Gratt. (Va.) 242; Norfolk v. Young, 97 Va. 728; Davis v. Board of Com'rs, 65 Minn 313; Philadelphia v. Scott, 81 Pa. St. 80; Buthe v. Supervisors, 26 Mich. 23; Hagar v. Reclamation Dist., 111 U.S. 710; In re House Bill, 9 Colo. 625; Cooley on Taxation (2 Ed.), 35-655-788; Ragan v. Farmers' Trust Co., 154 U.S. 399; Newby v. Platte Co., 25 Mo. 263; State ex rel. v. Lumber Co., 198 Mo. 430. Hence, section 33 of article 10 of the Kansas City charter, construed as authority for a special benefit assessment, violates the "due process of law" guaranteed in the Fourteenth Amendment to the Constitution of the United States, because no remedy is provided for a hearing as to the existence, extent, or ratio of special benefits of the parks and boulevards to the lots of land authorized to be taxed. Cooley on Taxation (2 Ed.), 363-364-655; State ex rel. v. Buchanan Co., 108 Mo. 241; State ex rel. v. Spencer, 114 Mo. 577; Bellingham Bay & Co. v. New Whatcom, 172 U.S. 318; Brown v. Denver, 7 Colo. 305; Violette v. Alexandris, 92 Va. 561; Sears v. Street Comrs., 173 Mass. 350; Stuart v. Palmer, 74 N.Y. 183; Deitz v. City, 91 Wis. 422; Ulman v. Mayor, 72 Md. 588; Philadelphia v. Scott, 81 Pa. St. 80; Whiteford Township v. Probate Judge, 53 Mich. 130; Trustees Griswold College v. City, 65 Iowa 633. The line of cases which sanctions special assessments, by the area or frontage of the lots of land abutting on the improvement charged for are based upon the right of the Legislature, on common experience, to assume the probable certainty of such special benefits, in amount equal to the sum assessed. These decisions do not apply, and can not properly be extended, to lots of land, like appellants', assessed for improvements on which the lots do not abut. Martin v. District of Columbia, 205 U.S. 24; Beechwood Avenue Sewer Cases, 179 Pa. St. 490; Thomas v. Gain, 35 Mich. 155; Paulsen v. Portland, 16 Ore. 450; Chicago v. Adcock, 168 Ill. 221; Garrett v. St. Louis, 25 Mo. 512; Kansas City v. Bacon, 147 Mo. 281; State ex rel. v. Brill, 58 Minn. 156.
Edwin C. Meservey, Wm. A. Knotts and D. J. Haff for respondents.
(1) That local assessments upon real estate is a legitimate and authorized method of raising money, not only for maintaining, but also for purchasing and constructing parks and boulevards, is as well settled in this country to-day as any principle of law can be determined by the courts. Kansas City v. Ward, 134 Mo. 172; Kansas City v. Langston, 147 Mo. 259; Kansas City v. Bacon, 157 Mo. 450; Shoemaker v. United States, 147 U.S. 302; Craighill v. Lambert, 168 U.S. 611; Owners of Ground v. Mayor of Albany, 15 Wend. 376; Holt v. City Council of Somerville, 127 Mass. 413; Kansas City ex rel. v. Scarritt, 127 Mo. 642; Foster v. Park Comsrs., 133 Mass. 338; Matter of Comsrs. Central Park, 63 Barb. 282; State v. District Court of Hennepin Co., 33 Minn. 235; Kedzie v. West Chicago Park Comsrs., 114 Ill. 280; Brooklyn Park Comsrs. v. Armstrong, 45 N.Y. 234; Briggs v. Whitney, 159 Mass. 97; People v. Brislin, 80 Ill. 423. (2) The charter of Kansas City has always provided for "repairs" to be paid for by special assessment, the same as original construction, and our Supreme Court has never questioned its validity. Charter of Kansas City, art. 9, sec. 7; Kansas City v. Huling, 87 Mo. 203; Gibbons v. Owens, 115 Mo. 259; Moore v. Westport, 110 Mo. 509.
OPINION
In Banc.
The facts of this case are like those in Corrigan v. Kansas City ante, p. 608, except that in this case the plaintiffs' property is in another park district of Kansas City called Westport Park District. These two cases were argued and submitted together. Like the Corrigan case, this is a suit in equity to enjoin the sale of plaintiffs' property (or rather to enjoin the delivery of certificates of purchase) for...
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