49 Kan. 747 | Kan. | 1892
The opinion of the court was delivered by
The city of Ottawa, in Franklin county, is a city of the second class. Block 85 in that city was granted to the county of Franklin by the Ottawa Town Company for a court-house square, and county buildings have been erected thereon. In 1887, the city of Ottawa, under the provisions of the statute, macadamized Main street between Tecumseh and Fifth streets, and a special assessment on account of such macadamizing was made under the statute upon said block 85, amounting to the sum of $573.10. Subsequently, a claim for that amount was presented to the board of county commissioners for allowance. This was refused, and an appeal was taken to the district court. It was there allowed, and j udgment rendered accordingly. Complaint is made of this judgment.
The question is, Had the city of Ottawa the power to levy a special assessment of $573.10 for the improvement of Main street in front of the “court-house square” without the consent of the board of county commissioners, and then collect it by judicial proceedings against the county? Section 5 of article 12 of the constitution ordains: “Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power.” Paragraph 788, General Statutes of 1889, grants to cities of the second class full authority to enact ordinances “to open and improve streets, avenues, and alleys, . . . within the city, and, for the purpose of paying for the same, shall have power to make assessments in the following manner, to wit: . . . For paving, macadamizing, curbing and guttering all streets, avenues, and alleys, . . . the assessment shall be made for each block separately on all lots and pieces of ground to the center of the block, on either side of such street or ave
It is said by Judge Cooley that —
“It is no objection to an assessment for a local work that the property assessed is used for a purpose that will not be specially advanced by the improvement; as, for instance, that it is dedicated to the purposes of sepulture, or is occupied by a building erected for the purposes of public worship, or is devoted to school or charitable purposes, or constitutes the*755 track of a railroad, or is put to any use to which the market value of the property is unimportant. There is nothing necessarily permanent in any present use; not sufficiently so, at least, to give it a controlling influence in determining principles of taxation. Even public property is often subjected to these special assessments; there being no more reason to excuse the public from paying for such benefits than there would be to excuse from payment when property is taken under eminent domain.” (Cooley, Tax., §458; St. Louis Public School v. St. Louis, 26 Mo. 468.
In Mayor of Baltimore v. Green Mountain Cemetery, 7 Md. 517, it was held that—
“The property of the United States, of the city and county of Baltimore, are all exempted from taxes, and yet it has never, so far as we are informed, been contended that it was not liable for the paving done in front of it, and we can see no reason why that of the appellees should be. If the latter be not responsible, then it is evident the street must forever remain unpaved, or the expense of it be borne wholly and entirely by the proprietors of the lots opposite. Surely this never could have been the intention of the legislature, nor can it be imagined it was its purpose to compel the city generally to do it. It must be viewed practically as a benefit conferred on the property of the appellees, and the mere fact that they were indifferent to it ought not to avail in their favor, any more than the like indifference of an individual proprietor would shield him from liability to pay his quota when paving is done in front of his ground.”
In Hassan v. City of Rochester, 67 N. Y. 528, Miller, J., in deciding the case, used the following language:
"In the matter of the Mayor of New York, 11 Johns. 77, it was held that . . . churches, which were exempt from taxation under the act of 1801, were not exempted from assessments for local improvements. The same rule would render the property of the state liable for such assessments. As these are considered under the decisions as benefits to the property assessed, increasing its value, and not as a tax, no valid reason exists why the state, any more than individuals, should be exempted from paying for the advantages conferred. A different rule would compel individual lot-owners to pay assessments levied for improvements which were a benefit to the*756 state lands without any adequate advantage, and in many instances impose a burden which would be extremely onerous and produce great injustice. This could not have been intended. Although the state cannot be made a party to an action to enforce such a claim and be sued in its sovereign capacity, it may be assumed that the state will provide means for the liquidation of assessments imposed by virtue of laws enacted by its legislature, and- that, as has been frequently done heretofore, appropriations will be made for that purpose.”
We do not think that the phrase jn ¶ 790, Gen. Stat. of 1889, concerning “ the taxable property chargeable therewith” restricts a city from levying special assessments or taxes upon public grounds, because, if construed as is claimed by counsel for Franklin county, then all the property used exclusively for literary, educational, scientific, religious, benevolent .and charitable purposes will also be exempt from the levy or payment of special assessments or taxes. This is contrary to the general view held by the profession, and is opposed to the practice prevailing in the cities. While such property is -exempt from taxation, under §1, article 11, of the constitution, it is not exempt from special assessments or taxes for the improvement of streets or sidewalks.
The serious difficulty in this case is as to the manner of collecting the special assessment. We held, in the case of Comm’rs of Stafford Co. v. National Bank, 48 Kas. 561, that ns the statute makes special provision for the collection of taxes, they are not a debt in the ordinary sense of the term, and consequently an action will not lie for their recovery. We have no inclination to change that ruling. A court-house •cannot be sold or disposed of under tax proceedings or at forced sale for special assessments or taxes levied upon the ground thereof. Such grounds are for the uses and purposes of the public, and are essential to the administration of the executive and judicial duties of the county and state, and, therefore, are not subject to sale for taxes or upon judgments rendered against a county. Perhaps it ought to be assumed, when a special assessment is made in accordance with the pro
Attempt is made in one of the briefs to show that the constitution of Illinois, making special provision for cities and towns to levy special assessments, differs widely from the provisions of the constitution of this state. We have examined the provisions referred to and do not note the difference claimed.
Our attention is called to the decisions of the courts of Massachusetts and Texas, to the effect that the property of counties is exempt from special assessments or taxes. Notwithstanding the reasoning of the able courts of those states, we are inclined to think, under the provisions of our constitution and statutes, the better rule to be that cities have the power to levy upon public grounds the special assessments necessary to improve the streets and sidewalks in front or around them; and where, for public reasons, the property
The judgment of the district court will be affirmed.
