West v. Burke
| Decision Date | 05 March 1921 |
| Parties | A. L. WEST, Appellant, v. MARY F. BURKE et al |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.
Reversed and remanded.
Clarence S. Palmer for appellant.
(1) The court erred in giving declaration of law No. 4 at the request of defendants. Under the charter the only basis of apportionment of cost is according to valuation. Sec. 3, art 8, p. 315, Charter; Meier v. St. Louis, 180 Mo. 408; Webster v. Fargo, 181 U.S. 394; Prior v. Const Co., 170 Mo. 451; Ry. Co. v. Paving Co., 197 U.S. 430; Cooper v. Ord, 60 Mo. 420; Fairbanks-Morse Co. v. Stock Food Co., 151 Mo. 260. (2) The court erred in admitting evidence of the supposed special benefits. The only material inquiry was as to the valuation. Same authorities as one. (3) Land "laid off in a lot or block" is land so laid off. Preston v Roberts, 12 Bush (Ky.) 570; Sec. 3, art 8, p. 315, Charter; Crane v. French, 50 Mo.App. 367; Gast Realty Co. v. Granite Co., 240 U.S. 55; Withnell v. Const. Co., 39 S.Ct. 200. (4) Even if the court should conclude that the land of defendants was not laid off in lots or blocks, the defendants should have shown how much they were injured by the acts of the city. Neil v. Ridge, 220 Mo. 233; City of Washington v. Stumpe, 197 S.W. 165. (5) The taxing district is fixed by the charter and cannot be changed by ordinance. Collier v. Paving & Const. Co., 180 Mo. 375. (6) The suit was not abated by failure to take out alias summons or order of publication. South Mo. Lumber Co. v. Wright, 114 Mo. 326; McGrath v. Ry. Co., 128 Mo. 1; State v. Wilson, 216 Mo. 291; R. S. 1909, sec. 1770; Priddy v. Mackenzie, 205 Mo. 200; State ex rel. v. Job, 205 Mo. 26. (7) At the time the tax-bills were issued, Block 5, Subdivision of Thomas J. Hughes' land was not of unusual length east and west in that part of Kansas City. Considering it as laid off into blocks, made the taxing district approximately equal on each side of the street grading, and the action of the city was valid. (8) The argument regarding the effect of ordinance 8374 is based upon an entire misunderstanding of the provisions of the charter. The only ordinance required for doing the work and assessing the cost was ordinance 9643. This was passed after the bids were received. (9) "Where there is legislative determination of the benefit district and of the basis of apportionment, there is no need of notice." Naylor v. Harrisonville, 207 Mo. 341.
Charles R. Pence for respondents.
(1) Under the Charter of Kansas City, the Board of Public Works, has no authority to fix or prescribe a benefit district in special assessment proceedings, but even if it has, it must comply with the provisions and limitations of the charter; and so it could not lawfully assess defendants' entire tract of land for the street grading, but could only assess the west 150 feet thereof; that is, their "land on the line of the street, avenue, or public highway or part thereof grading, back one hundred and fifty feet," for the reason that the ground was unplatted and not divided into lots or blocks within the meaning of the charter. Charter, art. 8, sec. 3, p. 315; Commerce Trust Co. v. Blakely, 274 Mo. 52; Granite Co. v. Realty Co., 259 Mo. 164, 172; Collier Estate v. West Pav. Co., 180 Mo. 385; McGrew v. City of Kansas, 64 Kan. 61, 67 P. 438; Bowles v. Iola, 82 Kan. 474; Dameshel v. Shanks, 30 S.W. 564; Caldwell v. Rupert, 73 Ky. 179; Barber Asphalt Co. v. Watt, 51 La. Ann. 1345; Seviers & Sons Co. v. Spokane, 77 Wash. 282; Gast Realty Co. v. Schneider, 240 U.S. 55. (2) The failure of the Board of Public Works to assess the cost of the work in accordance with the ordinance fixing the benefit district rendered the tax bill illegal and void. (a) The levying and assessment of a special tax is a legislative act or function, and by the Charter that power is vested solely in the Common Council. Art. 3, sec. 1, par. 3, pp. 119, 124, Charter. (b) The fixing of a benefit district is a most important and essential step in the levying of a special tax. And that it must be prescribed, that is, fixed and determined, before the burden is imposed, so that notice may be given to the property owners interested, is a fundamental rule. Hamliton on Assessments, sec. 56. (c) The fixing of the benefit or taxing district is just as important to the taxpayers as the character and extent of the improvement proposed to be made. If the board has the power to change a benefit district fixed by the council, then it has the legislative power to increase or diminish a special tax. That the board has no such power will appear, from the sections of the charter relating to the subject. Art. 3, sec. 1, p. 119; Art. 3, sec. 1, par. 3, p. 124; Art. 7, secs. 1, 2, 3, 5, 13, 14; Art. 8, sec. 3, pp. 310, 311, 312, 313, 314, 315. (d) If the notice of the proceedings under ordinance 8374, the ordinance establishing the benefit district, was legal notice as to these defendants, they were chargeable with knowledge that the proceedings would affect only the west 150 feet of their land, as the benefit district only included that amount. If the Board of Public Works has the right to extend the district to include other property, what notice is afforded the property owners concerned of such proceeding? There is no provision in the charter or in any ordinance for notice of such action. (e) The consequence of appellant's theory, that the Board of Public Works has the right to decide the question of platted or unplatted ground, and thereby fix the benefit district at the time of the apportionment of the cost of the work, and after the work has been done, would be that no property owner could know whether he was to be subject to the tax or to what extent until the tax bill was made out and his property charged with a lien for its payment. The benefit district in such case would not be prescribed, but fixed only after the work was done and the tax had become a charge upon the land. This would not be due process of law. (f) And, finally, it results from appellant's theory that there would be two benefit districts in a single grading proceeding; one fixed by the council for the purpose of assessing the land to pay the damages suffered by property owners from the change of the grade; and another, fixed by the Board of Public Works, after the work was done, to pay the cost of the work of grading. (3) This suit should be abated for the failure of the plaintiff to prosecute it for a year and a half after filing. Pitkin v. Flagg, 198 Mo. 646; Cox v. Strickland, 47 S. E. (Ga.) 917; Roes v. Clark, 63 A. 365; Brunswick v. Bingham, 35 S.E. 772; Branch v. Bank, 50 Ga. 413; Clark v. Keller, 3 Bush (Ky.) 223; Wolfenden v. Berry, 22 N.W. 915; Parsons v. Hill, 15 App. D. C. 532; Hazelhurst v. Morris, 28 Md. 67; Etheridge v. Wordley, 83 N.C. 11. (4) The basis of the assessment, in this case upon the lands charged with the cost of the work, to-wit, the valuation of the property, is not in accordance with, and in proportion to, the benefits conferred by the improvement. The rule or method of apportioning the cost applied by the Board of Public Works, to-wit, by valuation of the property exclusive of improvements, bears no just and lawful relation to the special benefits, and is therefore illegal. 4 Dillon, Mun. Corp. (5 Ed.) sec. 1443; Hamilton on Assessments, secs. 56, 141, and 213; Neenan v. Smith, 50 Mo. 525; Tyler v. St. Louis, 56 Mo. 60; Zallar v. Kellogg, 4 Mo.App. 163; St. Louis v. Allen, 53 Mo. 44; Independence v. Gates, 110 Mo. 374; Asphalt Co. v. Hanesler, 201 Mo. 410; Union Tr. Co. v. Pagensticker, 221 Mo. 128; Buchan v. Broadwell, 88 Mo. 36; State v. Pillsbury, 82 Minn. 359, 85 N.W. 175; State v. Newark, 37 N. J. L. 415; Barnes v. Dyer, 56 Vt. 469; Walsh v. Barron, 61 Ohio St. 15; Hammett v. Philadelphia, 65 Pa. St. 146; In Re Morewood Ave., 159 Pa. St. 20; Dyer v. Farmington, 70 Me. 515; Gast Realty Co. v. Schneider, 240 U.S. 55. (5) No jurisdiction was obtained over the defendants to charge their land as the steps precedent to a proper publication were not taken and defendants had no notice of the assessment or valuation of their property. Hamilton on Assessments, sec. 141; Judson on Taxation (2 Ed.), secs. 417, 418; Stuart v. Palmer, 74 N.Y. 183; Londoner v. Denver, 210 U.S. 373; Art. 7, sec. 5, p. 295, Charter.
This is an appeal from a judgment for defendant in a suit on a tax bill issued in part payment of the cost of the work of grading Ewing avenue from Fifteenth to Seventeenth street in Kansas City.
The answer contains (1) an admission of ownership of the parcel of ground against which the tax bill was issued; (2) a general denial of other allegations; (3) averments of facts said to show such delay in prosecuting this action as to establish that it was not commenced or prosecuted in good faith and that the lien has expired; (4) a plea of laches on the same facts; (5) averments that the assessment was void because the parcel assessed was not in the assessment district, and (6) that the assessment and the tax bill are invalid and in violation of designated provisions of the State and Federal constitutions. A reply was filed.
Appellant offered the tax bill. Respondents offered ordinances, orders and publication of notice, certain plats and some oral evidence -- all of which appear, so far as necessary, in connection with the discussion of questions to which they are relevant. The case was tried to the court.
I. The trial court gave a declaration of law for respondents, as follows:
"The court declares the law to be that it must consider and regard the evidence offered by the defendants tending to prove that the assessment against the land of defendants shown by the tax ...
To continue reading
Request your trial