Schmelzer v. Kansas City

• Decision Date: 06 September 1922
• Parties: BERTHA SCHMELZER, Appellant, v. KANSAS CITY and THOMAS F. NORTON et al
• Court: Missouri Supreme Court

243 S.W. 946

295 Mo. 322

BERTHA SCHMELZER, Appellant, v. KANSAS CITY and THOMAS F. NORTON et al

Supreme Court of Missouri

September 6, 1922

Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.

Affirmed.

Maurice J. O'Sullivan for appellant; J. F. O'Sullivan of counsel.

(1) The benefit district sought to be established by the ordinance is unreasonable, arbitrary, confiscatory and oppressive, in that the land of plaintiff and others at a great distance from the proposed improvement will be assessed at the same rate according to valuation of the property, as the land abutting on the improvement. To create and enforce such a lien against plaintiff's property is to take her property without due process of law, in violation of Section 30, Article 2 Constitution of Missouri, and of the Fourteenth Amendment Constitution of the United States. Gast Realty Co. v Schneider Granite Co., 240 U.S. 58; Thomas v. Gain, 35 Mich. 162; Stuart v. Palmer, 74 N.Y. 188, 193; Norwood v. Baker, 172 U.S. 269, 279; City of Independence v. Gates, 110 Mo. 374, 382; Cooley on Taxation (3 Ed.) p. 419; Dietz v. City of Neenah, 91 Wis. 422; Zehnder v. Barber Asphalt Pav. Co., 106 F. 103; Corcoran v. Cambridge, 199 Mass. 5; Barnes v. Dyer, 56 Vt. 469; Charles v. City of Marion, 100 F. 542; People v. Salem, 20 Mich. 452, 474; Benshoof v. City of Iowa, 175 Iowa 30; City of Spokane v. Fonnell, 135 P. 211; Abernathy v. Fidelity Nat. Bank & Tr. Co., 274 F. 801; Commerce Trust Co. v. Blakely, 274 Mo. 52. The tax assessed against plaintiff's property will exceed the special benefits, and the levy will therefore be taking her property without due process of law. McCormack v. Patchin, 53 Mo. 33; In re Washington Avenue, 69 Pa. St. 352; Hammett v. Philadelphia, 65 Pa. St. 146; State v. Newark, 37 N. J. 412; Fahenstock v. City of Peoria, 171 Ill. 454; Iowa Pipe & Tile Co. v. Callahan, 125 Iowa 358; Bidwell v. Huff, 103 F. 363; Martin v. District of Columbia, 205 U.S. 135; Pomeroy v. Board of Public Waterworks, 136 P. 78. (2) The proceeding brought to determine the validity of the ordinance is void, and is not binding on any owner in the district. (a) The "proceeding" was not brought in the manner required by the charter, in that it was not brought "in the name of the city, against the respective owners of land chargeable under the provisions of this section, with the cost of the work," as provided by Sec. 28, Art. 8, p. 352, City Charter, and the proceeding is therefore void. Crane v. French, 50 Mo.App. 367; Noll v. Morgan, 82 Mo.App. 112; Smith v. Westport, 105 Mo.App. 221; Lynch v. Union Trust Co., 164 F. 161; Eidenman v. Martinez, 184 U.S. 578; City of Tarkio v. Clark, 186 Mo. 299; Independence v. Gates, 110 Mo. 374; Leach v. Cargill, 60 Mo. 316; Lyon v. Alley, 130 U.S. 177; 2 Cooley on Taxation (3 Ed.) p. 1252. (b) The "proceeding" was not an action in rem. Freeman v. Alderson, 119 U.S. 185; Pennoyer v. Neff, 95 U.S. 714; The Brig Ann., 9 Cranch. 290; The Rio Grande, 23 Wall. 258; Dulin v. McGraw, 39 W.Va. 721; Rose v. Himely, 2 Cranch. 269. (c) The charter provision (Sec. 28, Art. 8), purporting to authorize the "proceeding," is unconstitutional and void. Because, first, it attempts to take property without due process of law, in violation of the Fourteenth Amendment, and Sec. 30, Art. II, Constitution of Missouri, because it attempts to provide for the fixing of liability of land within the district to assessment under said ordinance, before the cost of the work is determined, and before any definite charge can be fixed against the property; and second, because it purports to authorize a declaratory judgment, where no judicial controversy is involved, when such judgments are not authorized by the Constitution of Missouri. Tregea v. Irrigation District, 164 U.S. 179; Muskrat v. United States, 219 U.S. 346; Lord v. Veazie, 49 U.S. 251; Lewis v. Peck, 154 F. 273; Railway Co. v. Wellman, 143 U.S. 339; Mining Co. v. Mining Co., 145 U.S. 300; Pelham v. Rose, 9 Wall. 103, 19 L.Ed. 602; State ex rel. v. Westport, 135 Mo. 120, 133; McGlue v. Essex County Commissioners, 225 Mass. 59; People v. Pratt, 31 Cal. 223; Livingston v. D'Orgenay, 108 F. 469; Blake v. Askew, 76 N.C. 325; Port Gibson Bank v. Dixon, 12 Miss. 689; Berks County v. Jones, 21 Pa. St. 413; Anway v. Grand Rapids Railway Company, 211 Mich. 592; State ex rel. v. Imel, 243 Mo. 177, 189; Leahy v. Campbell, 247 Mo. 357; Kalbfell v. Wood, 193 Mo. 675, 689; Blair v. Bank, 8 Mo. 313. (3) The contract between defendants is void, on account of the unreasonable excess of the contract cost, over the estimated cost. City of DeSoto v. Showman, 100 Mo.App. 323. (4) The contract between defendants is void, on account of the unlawful delegation of discretion to the City Engineer, and the Board of Public Works, to determine the necessity for a portion of the work. Bolton v. Gilleran, 105 Cal. 244, 247; Foss v. City of Chicago, 56 Ill. 359; Cal. Imp. Co. v. Reynolds, 123 Cal. 88; St. Louis to use v. Clements, 43 Mo. 403, 52 Mo. 139; Richardson v. Heydenfelt, 46 Cal. 68.

E. M. Harber, J. C. Petherbridge, Cooper, Neel & Wright and Clarence S. Palmer for respondents.

(1) Our State Constitution and enabling acts passed in pursuance thereof, have conferred upon Kansas City the right and power to adopt a charter for its own local government, including local taxation. Sec. 16, Art. IX, Mo. Constitution; Secs 8854, 8855, R. S. 1919. This power has been construed and upheld in many cases decided by this court, among which are the following: State ex rel. v. Seehorn, 246 Mo. 541; Morrow v. Kansas City, 186 Mo. 675; Stanton v. Thompson, 234 Mo. 7; Corrigan v. Kansas City, 211 Mo. 608; Heman v. Allen, 156 Mo. 534, 543, affirmed in French v. Barber Asphalt Pav. Co., 181 U.S. 324. (2) Whether the appellant's land will be benefited by the proposed local improvement and the reasonableness of the taxing district, for that purpose, under the Kansas City charter, are legislative questions for the municipality to determine and its action thereon is conclusive, and not subject to review by the courts in the absence of fraud or gross abuse of authority, and none is charged here. West v. Burke, 228 S.W. 775; Prior v. Construction Co., 170 Mo. 439, 451; Heman v. Schulte, 166 Mo. 409; L. & N. R. R. Co. v. Barber Asphalt Co., 197 U.S. 430; Barber Asphalt Paving Co. v. French, 158 Mo. 534; Johnson v. Duer, 115 Mo. 366; McGhee v. Walsh, 249 Mo. 266, 283; Land & Improvement Co. v. St. Louis, 257 Mo. 291, 301; Houck v. Little River District, 239 U.S. 254, 264; Wagner v. Baltimore, 239 U.S. 207, 217; French v. Barber Asphalt Paving Co., 181 U.S. 325; Goodrich v. Detroit, 184 U.S. 432. (3) There are four recognized and approved methods of making assessments for local improvements, to-wit: Assessment rule by jury commissioners, area rule, front foot rule and valuation rule, Kansas City charter, Articles VI, VII, VIII, XIII; West v. Burke, 228 S.W. 775; Barber Asphalt Co. v. French, 158 Mo. 534; Heman v. Allen, 156 Mo. 534; Meier v. St. Louis, 180 Mo. 391; Webster v. Fargo, 181 U.S. 394; French v. Barber Asphalt Paving Co., 181 U.S. 334. (4) Section 28 of Article VIII of the Kansas City Charter (1908), authorizing the Common Council to provide, by ordinance, for an enlarged taxing district to pay the cost of grading streets extending through a hilly, rocky, rugged section of the city, is not unconstitutional and void; on the other hand, it is a wise, beneficial, legal and just charter provision adopted by the people of Kansas City to meet otherwise insurmountable difficulties encountered in grading streets extending through such sections of the city, and is such as the city has power to adopt. Sec. 16, Art. 9, Mo. Constitution; Secs. 8854, 8855, R. S. 1919. State ex rel. v. Seehorn, 246 Mo. 541; Morrow v. Kansas City, 186 Mo. 675; Stanton v. Thompson, 234 Mo. 7; Corrigan v. Kansas City, 211 Mo. 608; Sec. 28, Art. 8, K. C. Charter (1908); Sec. 5, pars. a, b, c, d, of Ordinance. (5) Service by publication in proceedings like this, under the Kansas City charter, is sufficient and legal. Kansas City v. Duncan, 135 Mo. 571; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Mastin, 169 Mo. 80; State ex rel. v. Wilson, 216 Mo. 215; State v. Blair, 245 Mo. 680; Lent v. Tillison, 140 U.S. 316. (6) The circuit court proceedings to determine the validity of the ordinance and the proposed tax lien, were regular and in due form, as required by the Kansas City charter. Sec. 28, Art. 8, Charter (1908); Sec. 11, Art. 13, Charter (1908). (7) The caption or title of a law suit or proceeding, is unnecessary, and in no way affects the validity of the proceedings. State v. Patton, 42 Mo. 530; Beattie v. Lett, 28 Mo. 596; Livingston v. Coe, 4 Nebr. 379. Omission of the caption does not go to the jurisdiction of the court, does not destroy the judgment, and cannot be taken advantage of in a collateral proceeding. Ammerman v. Crosby, 26 Ind. 451; Smith v. Watson, 28 Ia. 218. Not necessary to name parties. Kansas City v. St. Louis & K. C. Land Co., 260 Mo. 395, 409. (8) All questions raised, or which could have been raised, in the circuit court proceedings, and which are raised here, are now res judicata. Kansas City v. Smith, 238 Mo. 323; Kansas City v. Marsh Oil Co., 140 Mo. 458; Embree v. K. C. & Liberty Boulevard Rd. Dist., 240 U.S. 242; St. Louis v. United Rys., 263 Mo. 387; Spratt v. Early, 199 Mo. 491; Sibbett v. Steele, 240 Mo. 85; Little River Drainage Dist. v. Railroad, 236 Mo. 94; In re Birmingham Drainage Dist., 266 Mo. 60. The proceeding in the circuit court to determine the validity of the ordinance and the proposed tax lien, was not a moot case. Adams v. Union Ry. Co., 42 A. 515. (9) The proceeding was one in rem, and conclusive against the world. Gibler v....