Ross v. Kendall

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1107,183 Mo. 338
• Parties: ROSS v. KENDALL et al.
• Court: Missouri Supreme Court

81 S.W. 1107

183 Mo. 338

ROSS v. KENDALL et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — SPECIAL TAXATION — EMINENT DOMAIN — CONDEMNATION — COMPENSATION — RETENTION TO SATISFY PAVING LIEN — PAVING ORDINANCE — VALIDITY — CHOICE OF MATERIAL — MACADAMIZING.

1. An action to have special tax bills paid out of a portion of the proceeds of condemnation of the land against which the bills were issued does not involve the title to land, so as to give the Supreme Court jurisdiction.

2. A special assessment tax according to frontage, and not benefits, is not a denial of equal protection or due process of law.

3. Under a charter provision that where the title to property condemned is in controversy, or where there is dispute as to who is entitled to the compensation, it shall be settled by the circuit court, and that pending the determination the court may order the money to be put into court, the court is authorized in condemnation proceedings to order a part of the compensation to be retained to satisfy a special tax bill issued against the property before condemnation.

4. The court would, however, have the same power independent of the ordinance.

5. In such case the money stands in the place of the land, and an assignee of the special tax bill has the same right in the money he would have had in the land.

6. A judgment of condemnation relates back to the commencement of proceedings, not to the passage of the ordinance authorizing the condemnation.

7. The constitutional provision that just compensation for land condemned shall be paid to the owner, or into court for his benefit, is not violated by requiring a part of the compensation to be retained in court to satisfy a special tax bill issued against the land before condemnation.

8. Under a charter provision that the lien of a special tax bill continues for one year after the last installment falls due, an action brought within one year from the falling due of the last installment to obtain payment from a fund retained in court for that purpose on condemnation of the land is in time, though no suit was brought against the land.

9. Macadamizing is paving, within an ordinance authorizing paving.

10. A charter provision that a majority of the property owners shall have a right to select the material to be used for pavement from not less than two kinds designated by the board of public works is satisfied by an ordinance allowing selection from macadam, brick, or asphalt, and does not require the designation of two kinds of each of such materials.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Michael Ross against W. W. Kendall and others. From a judgment for plaintiff, certain defendants appeal. Affirmed.

Henry N. Ess, for appellants. Amos H. Kagy, for respondent.

MARSHALL, J.

This is a proceeding to have a portion of the proceeds of the condemnation of certain lands in Kansas City for park purposes applied to the payment of certain special tax bills which were issued against the said land for benefits thereto caused by the improvement of the street on which the land fronted. The facts are these:

The defendants Jemuel C. Gates and William W. Kendall were the owners of the land. On October 15, 1895, on the recommendation of the board of public works, the city council passed an ordinance, entitled "An ordinance to pave Fifteenth street, from the west line of Virginia avenue to the east line of Woodland avenue, as a business street." The ordinance recited that the board of public works had designated asphalt, laid on concrete, vitrified brick, laid on concrete, and macadam, consisting of six inches of native limestone, six inches of Bethany Falls limestone, and one inch of screenings, and including a brick-paved margin, as the materials which the owners of the majority of the front feet of the land fronting on the street should have the right to select from for the improvement of the street. The ordinance contained other provisions for notice to the property owners, for the issuance of special tax bills, for the contract, etc., which it is not necessary to set out herein. On the 13th of November, 1895, the city passed an ordinance to open and establish a public park, to be known as the "Parade." On the 24th of December, 1895, the city entered into a contract with John Mahoney to macadamize said Fifteenth street, pursuant to the terms of said improvement ordinance, and the contractor immediately qualified and entered upon the performance of his contract; the council having on January 24, 1896, passed an ordinance confirming the contract. On July 1, 1896, the city instituted condemnation proceedings under said park ordinance in the circuit court, and on August 7, 1896, a jury of freeholders was impaneled to assess the damages for the taking of the property for such park, all of which property belonged to the defendants Gates and Kendall, and a portion of which abutted the street to be improved as aforesaid. On the 15th of December, 1896, Mahoney having finished the work of improving the street, the city issued to him three special tax bills for the sum of $747.81 each, payable in four annual installments of $186.05 each, against the property of the defendants Gates and Kendall, and Mahoney assigned said special tax bills to the plaintiff herein. At the trial of the condemnation case the defendants Gates and Kendall appeared in person and by attorney before the jury, and gave evidence of the value of the land, including its enhanced value by reason of such street improvement, and in fixing the value of the land the jury took into account such enhanced value, but did not state it separately. On January 23, 1899, the jury found a verdict whereby it assessed the damages to the defendants Gates and Kendall for the taking of the land at the sum of $142,500, and on January 13, 1900, the circuit court confirmed the verdict, but ordered that of the damages assessed the city should pay into court the...