Corrigan v. Kansas City

111 S.W. 115, 211 Mo. 608, 1908 Mo. LEXIS 115

• Court: Supreme Court of Missouri
• Decided: May 13, 1908
• Status: Published

Opinions

VALLIANT, J.

— This is a suit in equity to enjoin the defendants, the city and- the city treasurer, from selling lands of the plaintiffs for- delinquent special taxes called by plaintiffs the Park and Boulevard Maintenance Taxes, they having paid all the other taxes assessed against these properties.

A temporary injunction was issued at the institution of the suit, but on final hearing the injunction was dissolved and the plaintiffs’ bill dismissed, from which decree the plaintiffs appealed.'

The suit is founded on the theory that the special taxes in question were invalid, and that theory involves the question of the validity of the city ordinance under which the assessment was made and of the charter provision under which the Common Council acted in passing the ordinance.

Kansas City is organized under a special charter adopted in 1889, pursuant to sections 16 and 17, article 9, of the Constitution of 1875. By an amendment adopted in 1893, what is now article 10', was added to the charter. That article provides for the establishment of a Board of Park Commissioners “to devise and adopt a system of public parks, park-ways and boulevards,” and to have general charge of the same. By its terms all the territory then in the.city was divided into three park districts, one of which, designated as “West Park District,” embraces the city lots of the plaintiffs in this suit. The area embraced in that district is about three miles in length by one and a fourth to one and a half miles in width, including lots devoted to residences, and lots devoted to all kinds of business and other purposes which are naturally to be expected in a great and growing city like Kansas City; among which appellants call especial attention to lots owned and occupied for church purposes, lots owned by the city for fire engine houses, waterworks, etc., and also a large number of lots owned and occupied by railroad companies' for their rights of way and other railroad purposes. This article 10 provides how land may be selected, the procedure for acquiring the same and the assessment of benefits on the real estate in the district for the purpose of obtaining the money needed to pay for the land taken, the constructing, improving and maintaining the parks, park-ways, boulevards, etc.

The particular part of that article which commands our attention in this ease is section 33 which is as follows:

“The real estate, exclusive of improvements thereon, in each park district may, upon recommendation of the board of park commissioners, be assessed annually for maintaining, adorning, constructing' repairing and otherwise improving the park or parks, parkways, road or roads, boulevard or boulevards, avenue or avenues, or portions thereof, located therein, which are under the control and management of the board of park commissioners; and such assessment may be made according to the valuation and assessment of real estate in each park district made for city purposes. Every such assessment shall be made and collected as provided by ordinance of the common council.”

Pursuant to that section the Common Council passed ordinance number 9674, the first section of which is as follows:

“That in pursuance of section number thirty-three of article numbered ten of the charter of said city, there is hereby levied for the fiscal year of 1898, upon all real estate, exclusive of all improvements thereon, liable for taxation for State and county purposes, in the "West Park District in Kansas City, Missouri, a special assessment of two and one-half mills on each dollar of the assessed value of all said real estate, exclusive of said improvements, as shown by the books of the city assessor for the assessment of real estate in said West Park District made for general city purposes in said year.”

At the same time other ordinances of like import applicable to the other park districts in the city were passed.

Appellants call attention to the fact that by the terms of the ordinance in this case only real estate, exclusive of improvements, is taxed, and, of it, only so much as is shown by the books of the city assessor as the assessment of real estate made for general city purposes, the effect of which is to omit from the special tax assessed all church property and city property, because such do not appear on the books of the city assessor, the church and city property being exempt from general city taxes, and the railroad property being assessed by the State Board of Equalization.

At the date of the enactment of this ordinance the only land owned by the city for park purposes in the West Park District was a small lot about sixty-five feet square and a tract about four acres in area which the city owned and had by ordinance appropriated to that purpose, but the ordinance reserved the right to the city to appropriate the land to other purposes or sell it if it should thereafter' see fit to do so. And there was no boulevard or street or avenue at that date in that district under the control of the Park Commissioners. But there had been selected and designated by the Park Commissioners in that district 134 acres of land for a park to be known as Penn Valley Park-and a tract of 26 acres for a park to be known as West Terrace Park, and proceedings were then pending for the condemnation of those lands, which proceedings were then far advanced, and have since the trial of this cause been concluded, and those two parks are now accomplished facts.

The assessed value of the lands in this district on the city tax books for 1898, exclusive of improvements, was $10,469,565; the assessed value of the buildings and improvements on the lands was $5,659',970.

Before enacting the ordinance in question making this special tax assessment, the city had already assessed taxes for general city purposes on all the property subject to taxation up to the limit allowed by the Constitution and these plaintiffs paid that assessment.

This appeal has been pending for several years in this court, having been continued from time to time by stipulation of counsel, and in the meantime other cases involving nearly the same points have come on for hearing and in those cases almost all the questions raised in .this appeal have been decided adversely to appellants’ present contentions.

I. Appellants’ first point is that if this Park Maintenance tax is to be understood as a tax for general purposes it is void for several reasons assigned. That point may be passed over with saying that this is in no sense a general tax; it must be maintained on the theory that it is a special tax for local improvements or not at all.

II. The next point presented is that the ordinance •assessing the special tax is unlawful because it does not conform to the requirements of section 33 of article 10 of the charter under which it was enacted. The ■alleged difference between the charter provision and the ordinance is that the charter authorizes the imposing of the tax on all the real estate, exclusive of improvements, in the district, whereas the ordinance imposes the tax only on so much of the real estate as is shown on the books of the city assessor for general city purposes, the result being the omission of the church, city and railroad properties already mentioned.

Whilst this question was not presented in the case of Kansas City v. Bacon, 147 Mo. 259, in exactly the same form in which it is now presented, yet one of the grounds on which the validity of the benefit assessment in question in that case was challenged was that it omitted from the burden of the tax assessed the same property that is now referred to and this court held that the assessment was not, for that reason, invalid.

In that case there was a condemnation of land for the park, and a benefit district marked out to be assessed to raise money to pay for the land taken; the freeholders’ jury omitted church and railroad properties from the assessment, and the court held that it was lawful to do so. In the case at bar we have no benefit assessment by a jury, but we have an ordinance imposing a uniform ad valorem tax of 2y2 mills on the dollar of all real estate in the district exclusive of improvements except the city, church and railroad property. Whilst the charter in terms authorizes the Common Council to levy a- special tax in that way on all the real estate, exclusive of improvements, in the district, yet if the council, exercising the same reason that the jury exercised in the case of Kansas City v. Bacon, concluded that such property was not benefited, they were not compelled to include it in the assessment. Whether or not property possessing a distinct peculiar character is in fact benefited by a particular kind of improvement is a question to which different answers might be given. For a while it was doubted if railroad rights of way could be taxed for street improvements, but this court has recently settled that question in Heman Const. Co. v. Railroad, 206 Mo. 172, holding that the railroad right of way was liable.

Section 33 is the authority for this ordinance and if the ordinance violates that section it is invalid. That section of the charter does not require all of the real estate in the district to he assessed for this tax; it is permissive in its form,, it is a grant of power with a limit within which the Common Council may act. Article 10 of the city charter, adopted as it was in conformity with the provisions of the Constitution, is of at least as much force and effect as an act of the General Assembly enacting a similar charter; it confers on the city the power to levy such a tax, but the city is not compelled to go to the limit of the power in order to avail itself of its authority; it is sufficient if it acts within the limit.

Section 3, article 10, of the State Constitution requiring taxes to be uniform, and sections 6 and 7 of the same article, the one exempting properties of certain kinds and the other forbidding any other exemptions, refer only to general taxes; those sections neither exempt nor forbid the exemption of properties from special assessments for local improvement. If the legislative department of the State government or that of the city government should make an arbitrary selection of property to be taxed for the benefit of the whole district, omitting other property of like kind and used for like purposes, there are other clauses of both State and Federal constitutions that could be applied to prevent such inequality, but this is not such a case; here all properties of the same class are taxed and all properties of other classes are omitted from the assessment. The classification here shown is not beyond the legislative discretion of the Common Council.

If Kansas City had not availed itself of the provisions contained in sections 16 and 17 of article 9 of the Constitution, and if it was existing under a charter granted by the General Assembly, and if in such case the General Assembly had written into the charter the very same municipal powers that are contained in article 10- of the charter we are now construing, would any one doubt that the city had authority to establish these parks and maintain them by special assessments on private property in a benefit district established in conformity with such charter grants? If such doubts should arise they would rest alone on the idea that parks, and the boulevards appurtenant to the parks, were public improvements only, not local in their character, therefore to be obtained and maintained only at the expense of the city. But whatever doubts there may have been at one time on that point have been dispelled by the decisions of this court construing this very article 10 of the charter of Kansas City. [Kansas City v. Ward, 134 Mo. 172; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Bacon, 157 Mo. 450; Barber Asphalt Pav. Co. v. French, 158 Mo. 534, and other cases on this point cited in the brief for respondents.]

■ III. It is contended that the assessment is void because when made there was no park in the district. That contention is hardly supported by the facts in the case. It is true there was no finished park in the district, and there was no very considerable quantity of land acquired for park purposes, but there was a small piece of land unequivocally dedicated, and a tract of three or four acres donated by the city with the right to reclaim reserved. But if that was all that in fairness could be claimed by the city as ground for the ordinance imposing this tax, it would be liable to a graver charge affecting its good faith and validity than the strict technical grounds that are now brought against it. But' that was not all that, the city was providing for. Section 8 of article 10 requires that at least one park shall be provided in each district,.and the whole article contemplates á system of parks and park boulevards. The Park Commissioners had laid out and the city had adopted, as far as it. was able, two large parks in this district, and was pressing the litigation that was required for the accomplishment of the design with all its might, and we are told in the brief for respondents that one of these, at least, the Penn Valley Park, has been completed while this suit has been pending.

This is a suit in equity and we must bear in mind that a court of equity does not very readily lend its aid to advance a mere technical legal right, when there is no principle of natural justice involved; it prefers in such case generally to. leave the parties to the more technical courts of law. Whilst the petition frankly states that litigation on the part of the city was pending to acquire land and construct parks, yet there was no showing made either in the petition or at the trial that the work undertaken by the city was not being pressed with energy or that there was ground for any reasonable doubt that in the due course of the law there would be parks in the district ■ for. which the money that this assessment would raise would he required. Under those conditions there was no occasion for the interposition of the extraordinary remedy of injunction.

IV. Appellants’ fourth point relates to the omission of the church, city and railroad property from the assessment. We have already considered that subject in discussing appellants’ second point.

V. Section 2 of the ordinance provides that “the special assessment hereby levied shall be used for the • purposes of maintaining, adorning, constructing, repairing and. otherwise improving the parks, parkways, roads, boulevards or avenues, or portions thereof, located in West Park District. ”

Appellants complain of that that it is “too general, indefinite and uncertain,” and they make a very pleasing argument to show that under the terms there used the money raised by the tax might he frittered away in frivolous and evanescent things in the neglect of more important and lasting works.

It is easier to point out defects in an instrument of this kind than it is to show how the evils suggested could be avoided. The learned counsel have not shown how this ordinance could be made more definite and certain without impairing the necessary powers of the Park Commissioners or without involving it in a wilderness'of detail. In the administration of laws it is often necessary, and it is not unusual, to trust something to the good faith and good judgment of the administrative officers. The security of the law depends to a great extent on the efficiency and honesty of the officers. The charter of Kansas City, in providing for the establishment of a system of parks, created a Board of Park Commissioners and prescribed a high grade of character for the persons who were to compose that board; they were to be five in number, “freeholders and electors of the city, well known for their intelligence and integrity, who shall have resided in the territory embraced within the city limits at the time of their appointment for a period of five years.” The only compensation they were to receive was the honor and distinction the office conferred. If they showed cause for removal the law provided for their removal.

In the matter of park adornment there is room for wide differences of opinion, the opinions resulting in a great measure from individual taste and education; therefore it is next to impossible to be altogether specific in prescribing in an ordinance of what the adornment in a park shall consist. The framers of the city charter made the best provision for this uncertainty that they could, that is, by prescribing the qualifications of the members of the Board of Park Commissioners and trusting greatly to their integrity and good judgment. If the misfortune should occur that the men in that position fail to measure up to the high standard prescribed, or when their conduct is such as to show incompetency or worse, or when money is appropriated to a purpose that cannot fairly be said to be within the range of their legitimate discretion, there will be found law enough in the land and strength enough in the courts to right any such flagrant wrong they may commit.

VI. Appellants’ sixth point is that the uniform tax of two and one-half mills on the dollar, as shown by the city assessment rolls, ignores the question of benefits, and assesses all the property alike in the face of the obvious fact that all is not to the same degree benefited. That is the same argument that has been in the past urged with so much force to show that the front-foot rule of assessment for street improvement was invalid. This court has expressed its opinion too often on that subject to render further discussion of it necessary.

VII. No notice was given the property-owners of the purpose to levy such a tax, and for that reason appellants contend that the assessment was void. The proposition involves also appellants ’ tenth assignment, that is, that it deprives them of their property without due process of law.

Those points have been repeatedly decided by this court contrary to appellants’ present contention in cases growing out of this article 10 of the charter of Kansas City; in the last of which decisions the whole subject and the former decisions were reviewed in an elaborate and exhaustive opinion by Chief Justice Cantt. [Barber Asphalt Pav. Co. v. French, 158 Mo. 534.] The occasion for the review of the subject in that case was a then recent decision of the Supreme Court of the United States, Norwood v. Baker, 172 , which was thought by some to lay down a different rule from that which this court had before-declared, but which when we came to consider it we thought was not so. In the case at bar the uniform ad valorem tax was imposed- by a direct exercise of the legislative power of the city government and it was held in the case last above referred to that in such case no notice to the property-owner was necessary and that the proceeding did not deprive him of his property without due process of law. We can say nothing more on the subject than was said in that case.

Yin. Appellants ’ eighth assignment is that since this ordinance was passed at the same time when other ordinances of like character were passed covering in their aggregate all the territory in the city, the tax was a general one as distinguished from a special tax for local improvement, and since the taxing power for general city purposes had already been exercised to the full constitutional limit, the tax now in question was void.

True there were five ordinances passed at or about the same time, but each one of them covered only one district and its operation was entirely distinct from that of the others. This is a special, not a general tax.

IX. Lastly, the appellants think that by this tax they are denied that “equal protection of the law” that the Fourteenth Amendment guarantees them. This assignment rests chiefly on a fact we have already above discussed, that is, that church and railroad property within the district was omitted from the assessment. From what we above said on that subject we must rule this point against appellants.

The judgment is affirmed.

Gantt, C. J., Lamm and Fox, JJ., concur; Burgess, Graves and Woodson, JJ.„ dissent.