279 Mo. 404 | Mo. | 1919
This is an action brought by property owners against a contractor for the cancellation of certain tax bills issued by Kansas City for paving Linwood Boulevard from Troost Avenue to Prospect Avenue. The pleadings consist of the petition, the answer and the reply. At the trial, the defendant filed a motion for judgment on the pleádings, which was sustained; and plaintiffs appealed. As the reply denied the allegations of the answer, the sole question was whether the
The petition, after pleading the corporate existence of certain parties plaintiff, alleges their respective ownership of certain tracts of land therein described, and that tax bills have been issued to the defendant in payment of improvements made on Linwood Boulevard. The date of the issue 'of these tax bills is not stated, nor their respective numbers or amounts. The existence of Linwood Boulevard from Troost Avenue to Prospect Avenue, the portion»of the boulevard.paved, is alleged to have been at all times under the control and management of the board of Park Commissioners of Kansas City; that, in 1900, the city authorized the pavement of Linwood Boulevard from Troost Avenue to Michigan Avenue, and, in 1909, provided for the pavement of Linwood Boulevard from Michigan Avenue to Benton Boulevard (a point farther east than Prospect Avenue), and that said work was done and tax bills issued in payment thereof, which were paid by the owners of land fronting on the boulevard. Section 31 of the Charter of 1899, as amended in 1895, which authorized the improvements made in 1900 is set out; that on August 4, 1908, Kansas City adopted a new charter. Certain provisions of this charter are pleaded; among others, Section 33, Article XIII, which provides that the maintenance fund for parks and boulevards may be assessed against all the land, exclusive of improvements in the respective park districts, and that all vehicle taxes collected in Kansas City shall be used exclusively for the construction, maintenance, repairs, etc., of parks, boulevards, etc., under the control and management of the Board of Park Commissioners.'
Section 34, Article XIII, of the Charter, is also set out, which provides for a maintenance fund of ten cents per front foot on all the land fronting on boulevards or parkways.
It is further pleaded that the levy of two and a half mills upon each dollar of valuation of .the real
Plaintiffs then allege that in violation of the Charter of 1908, the-Board' of Park Commissioners adopted a resolution, April 27, 1914, providing “that’Linwood Boulevard from a line eighteen inches east of the east line of the street car track in Troost Avenue, to a line eighteen inches west of the west rail of the street car track in Prospect Avenue, be paved the full width thereof with bituminous pavement macadam, and that the approaches to the cross streets be paved with asphalt,” and that said work be paid for by the issue of special tax bills; that the Common Council, by Ordinance No. 11918, approved June 23, 1914, ordained that Linwood Boulevard should be paved as provided in said resolution, and that the work be paid for by special tax bills; that Section 12, Article 18, of the Charter of 1908, relating to the effect of the adoption of the new charter upon existing rights or liabilities, and that the issue of tax bills against plaintiffs’ property was in violation of said Section 12, and further alleges that plaintiffs purchased their property relying upon the rights, privileges and exemptions supposed to be contained therein.
That the work as actually done ‘ ‘ consists of putting a top dressing on said boulevard,” and that this is what is properly, ordinarily and regularly known and desig
That a portion of Linwood Boulevard, extending from Prospect Avenue east to Benton Boulevard, had, at some time prior to the work under Ordinance No. 11918, “been maintained and repaired with identically the same material and in precisely the same manner as the work done under Ordinance No. 11918, on that portion of said Linwood Boulevard hereinbefore described, upon which plaintiffs’ properties do abut,” and that this act of the city constituted a discrimination in violation of the charter and of the Constitution of the United States.
The petition then alleges that plaintiffs’ property could not be lawfully assessed for this work, and that the imposition of the tax was contrary to the provisions of the Charter of Kansas City in force when the boulevard was originally paved (in 1900'), and contrary to the spirit of the provisions of the Charter of Kansas City now in force.
The acceptance of the work by Kansas City through its proper officials and the apportionment and issue of the special tax bills to the defendant is stated, and that said tax bills purport to be liens against the plaintiffs’ respective properties.
Article 12, Section 19, of the Constitution of Missouri, is then quoted, which prohibits the Ueneral Assembly from passing retrospective laws or imposing on the people of any county or municipal subdivision a new liability in respect to transactions or considerations already passed.
Finally, it is alleged that plaintiffs are denied' the equal protection of the law, in violation of the Constitution of the United States, and are deprived of their property without due process of law, in violation of the
I. The burden of this petition, upon which appellants’ right of action depends, is that the work in controversy was that of maintenance and repair, and that the city had no power to issue special tax bills for this character of work, which should have been paid for out of the maintenance fund of the Park District in which Linwood Boulevard is located, and not by a levy upon the abutting property.
A portion of Linwood Boulevard between Prospect Avenue and Benton Boulevard had theretofore, under a former charter (See. 31, Art. X, Kansas City Charter of 1889, as amended in 1895), been paved. This section had a limitation on assessing the cost of boulevard, avenue, or street improvements against abutting property owners, and provided that after having once been paved, they should thereafter be maintained at the expense of the Park District, or the improvement was to be paid for out of the general park fund.
The tax bills, the payment of which is here contested, were issued to pay for the paving of Linwood Boulevard from Troost to Prospect Avenues. An ordinance authorizing this improvement had theretofore been passed, under Section 31 of Article 13 of the present charter of Kansas City. The portions of said section of the charter having reference to the matter at issue, are as follows: “The Board of Park Commissioners shall have power to cause any road, parkway, boulevard or avenue, or part thereof, which may be under its control and management, to be graded, regraded, paved, re-paved, curbed, re-curbed, guttered, re-guttered, or otherwise improved, repaired and maintained . . . with such material as the said board may determine, and may pay for such work or improvements, or any part thereof, out of the funds not otherwise appropriated, belonging to the park dis
It will be seen that this section does not contain the limitation found in the former charter (Sec. 31, Art. X, Charter of 1889, as amended 1895), in regard to the manner of payment of the cost of street improvements, but provides that such cost may, as determined by the Board of Public Improvements, be paid out of the Park fund or by the issuance of special tax bills,- if so authorized by a resolution of the board. Incidentally it may be stated that there was a compliance with this requirement. The comprehensive nature of this section is apparent from its use of all of the terms employed in designating the streets of a city, viz.: avenues, boulevards, roads and parkways.
The power of the board to thus provide the manner in which the cost of such improvements may be paid for having been defined by the charter, it remains to be determined whether its provisions relative thereto, are valid.
Preliminary to á discussion of the immediate question here seeking solution, it is not inappropriate
The trend of judicial construction is that in the exercise of a power of this character, the courts should not either directly or collaterally interfere with municipal action in the absence of fraud. A general declaration of this rule is found in McCormack v. Patchin, 53 Mo. 33, in which it is held that the poAver to grade and improve streets is a legislative and continuing' power, subject to such restraints as may have been imposed by the charter. It may be exercised from time to time as the wants of the municipality may require; and as to the necessity or expediency of the exercise of this power, the governing body of the municipality, and not the courts, is to be the judge; that the power to compel property owners to pave generally extends to requiring them to repave when so directed by the proper municipal authority. The rule as thus announced was reaffirmed in Farrar v. City of St. Louis, 80 Mo. 379, where it Avas held, that the power to pave the streets of the City of St. Louis and to charge the cost of such improvements against abutting property, conferred by certain sections of the charter of that city, and the mode of the exercise of this power under a designated ordinance, was not in conflict with the State Constitution.
The Farrar case is especially rich in its references to earlier Missouri cases discussing and defining the poAvers of municipalities in the exercise of the taxing power for the improvement of streets subject only
The later case of Skinker v. Heman, 148 Mo. 349, reasserts the doctrine of the freedom of action, in the absence of fraud, of municipal authorities in providing by ordinance in compliance with the charter, for the issuance of tax bills for a new sidewalk.
In no case have we found the rule more clearly and conclusively stated than in Heman v. Schulte, 166 Mo. 409. This was a suit on a sewer tax bill. Defendant objected to its payment on the ground that his property had no immediate access to the sewer, and hence should not have been included in the benefit district. In holding that the action of the city council was conclusive in including the property in the district, the court said, at page 417: “Not only is it the rule in this State . . . ‘that when the matter of establishing sewer districts is intrusted by the Legislature to the common council, its action in the premises is conclusive in a collateral attack,’ but the rule generally stated is, that where a municipal body vested with the exercise of a power, acts, its acts under that power, in the absence of fraud, are conclusive upon the courts, whether the attack made thereon is collateral or direct, and the fraud that will authorize the court’s interference in the matter of municipal action, is not that the power exercised or the ordinance passed has resulted in an individual hardship in its execution, or that in the working out of the general scheme designed by an ordinance an individual burden is imposed without a corresponding benefit conferred (a necessary incident to any system of general taxation or special assessment yet devised for governmental maintenance and support); but only in those cases where the act of the municipal body is so unreasonable, oppressive and subversive of the rights of the citizen in the general purpose • declared, as to clearly indicate and leave but one inference, that of an attempted abuse rather than the legitimate use of a power enjoyed; and of this qualified and' limited as
A parallel ruling is found in Jennings Heights Co. v. St. Louis, 257 Mo. 291, which was an action to cancel tax bills for sewers on the ground of fraud, and that the sewers as constructed were larger than necessary. In ruling on these contentions, the court said: ££It has been uniformly held that the action of the city legislature in pursuance of charter powers, in establishing a district to be benefited by sewers or other public improvements so as to justify a special assessment against the property lying within the district, is conclusive, in the absence of any evidence that it was procured by fraud or proof that it is manifestly arbitrary or unreasonable, or that the assessment is palpably unjust or oppressive.”
The following cases announce the same general doctrine: Moberly v. Hogan, 131 Mo. 19; McGhee v. Walsh, 249 Mo. 266; French v. Barber Asphalt Co., 181 U. S. 324.
We had occasion in St. Louis v. United Railways, 263 Mo. l. c. 455, in what is sometimes designated as the ££Mill Tax Case,” to discuss somewhat elaborately the reasonableness of municipal enactments and, as necessarily incident to that discussion, the extent of the power of municipalities in regard thereto. The conclusion deduced from a review of numerous authorities was that, if an ordinance, as in the case at bar, was enacted authorizing a tax under a power conferred by a city’s charter, and not in contravention of organic law, it will be held valid and the courts will be slow to interfere with its operative force; that municipal corporations are primarily the sole judges of the necessity of ordinances and the courts are loth to review their unreasonableness, if passed in strict accord with an express grant (p. 456).
The foregoing was but a reaffirmance of the earlier case of Seaboard Nat. Bank v. Woesten, 147 Mo. l. c. 481, where we said: “It may be said here, that municipal officers, under the charter of St., Louis are selected, presumably, on account of their fitness and integrity. They have no private ends to subserve. We should, therefore, presume that their intentions are honest, and that, in the performance of their public duties, they deal fairly and justly Avith the citizen and property owner. ’ ’
While in terms this has reference to a particular municipality, the general application of the rule is beyond question.
Despite the general power thus conferred upon municipalities, the latitude of its exercise and the reluctance of courts to interfere with same, it is nevertheless contended by appellants that their property should not be assessed because owners of property on another part of the street previously improved had not been assessed, and that the burden of taxation was therefore not equalized, and that the ordinance authorizing same was consequently invalid as a denial of the equal protection of the laws, within the meaning of Section 1 of Article XIV of the Federal Constitution. The ruling of the St. Louis Court of Appeals,, in Kemper v. King, 11 Mo. App. l. c. 127, 129, is apposite in determining whether the contention here made is sound. In the Kemper case, a portion of a street had been paved and the abutting property assessed therefor. Later another portion — that involved in the opinion — was paved. The abutting owners in the second improvement contended that their assessments should
Rulings of courts of last resort in other jurisdictions affirm the doctrine announced in the Kemper case.
The case of McChesney v. Chicago, 152 Ill. 543, 38 N. E. 767, identical in principle with the case at bar, gives affirmative expression to the rule. There the city
In Murphy v. People, 120 Ill. 234, 11 N. E. 202, a sewer system had been paid for out of general city funds. The cost of the present extension was assessed against abutting property. The objection that this was not uniformity was rejected by the court.
In Shelby v. Burlington, 125 Iowa, 1. c. 352, suit was brought to enjoin the city. from improving a street out of general funds because previously such improvements had been- paid for by assessments against abutting property. The court held that: “Appellant’s argument, carried to its logical end, would tie the hands of the Legislature for all time. That is to say, having adopted the theory of special assessments, it could never depart therefrom; and, vice versa, if it authorized payment for street improvements out of the general city funds, it could never resort to special assessments. This, of course, cannot be the law.”
In the case of Ottumwa Brick Construction Co. v. Ainley, 199 Iowa, 386, 80 N. W. l. c. 511, the city provided for paving a certain street to be paid for by special assessments. Some of the property on the street not being worth anything, the city guaranteed the tax bills issued against such property, and this in effect amounted to-payment by the city for that portion of the improvement. This Avas objected to by the other property owners assessed for this improvement. It was held that the city may thus pay part of the cost of the improvement out of its general funds. In so ruling, the court said: “There is nothing in the law to prevent a- city, whose finances will admit of so doing, from paying for improvements like that in question out of
In the case at bar, Kansas City had previously provided for the repaving of a portion of Linwood Boulevard and paid for the same out of the general fund. At a later time, in an entirely different proceeding, it provided for repaving another portion of the Boulevard to be paid for by special assessments against the abutting property. The city had been given specific power to proceed by either method. No showing of fraud was made or suggested, and it must be presumed that the city authorities had good and sufficient reasons for proceeding by different methods in these two different proceedings. Their decision in the matter should be conclusive, for any other rule would tie the hands of the city and impede, if not prevent, public improvements.
III. It is further contended by necessary implication from the allegations of the petition, although not definitely so stated, that the ordinance and charter provision under which it was enacted, by virtue of which the earlier improvement' of a portion of Linwood Boulevard was made, constituted a contract with abutting property owners who had paid taxes therefor, which will be impaired if the same property is burdened with taxes for the present improvement. The difficulty confronting appellants in attempting to sustain this contention is that a statute conferring power upon a municipality to provide for the construction, maintenance or repair of streets does not constitute a contract. In Dillon on Munic. Corp. (5 Ed.) p. 2581, the rule is thus declared: “Charter provisions,.which only confer authority upon the municipality to make original construction or paving of the city streets at the expense of the abutters, and which require the city .to bear the expense of reconstruction and repaving, do not constitute a contract with an abutter who has paid an assessment for
Our own court follows the unbroken current of authority, as thus announced. In Houck v. Drainage Dist., 248 Mo. 1. c. 394, a statute in force at the time of the original organization of the district provided for an assessment to be made and determined according to benefits found. Later, the law was changed so as to authorize a board of supervisors to levy on each acre of land in the district not to exceed twenty-five cents per acre. In discussing the validity of the change thus made, the court said: “It is contended that the section in question is void because it creates a rule of taxation not in existence at the time the defendant drainage district was organized» and the plaintiffs became members of it, and it is therefore retrospective as to them and impairs the obligation of contracts constituted by its charter . . . We do not hesitate, however, to say that the charter of a public corporation does not constitute a contract with its members that the laws it was created to administer will not be changed; and the State is still at liberty, as to them and the corporation, to continue its efforts to improve 'its methods of taxation with respect to these subjects.”
Further, to the same' effect, in Miners Bank v. Clark, 252 Mo. 20, l c. 32, we said: “Did the city, by accepting the deed from Clark in 1901, contract away its right to later order said street improved at the expense of the abutting property, owner, even though the grantor in said deed be the property owner when the improvement is later made? Unless the- law constituting its charter gives such right, a city cannot contract away its right and power to levy special assessments for street improvements, and thereby create an exemption from such assessments. . . . The
In Tilden v. Mayor, 56 Barb. (N. Y.) l. c. 361, the Court of Appeals of New York said; “The supposed contract lacks one essential element of a valid agreement, viz., a consideration. By the statute of 1813, the mayor, aldermen and commonalty were authorized, among other things, to direct the paving of streets, and to assess the expense upon the property owners or occupants of houses and lots benefited. Under this provision the owners could have been compelled to pay the expense of the pavement laid dowm in 1824, and therefore the promise of the corporation to bear the expense of future repairs and pavements was without consideration. The owners lost nothing by what occurred; they simply paid what by law they could have been obliged to pay, and it has never béen held that the performance of a legal duty, or the payment of a legal liability, furnished any consideration to support a promise. ’ ’
In Ladd v. Portland, 32 Ore. 271, 51 Pac. 654, under a state statute, it was provided that after a street in East Portland had been improved, under and by virtue of the provisions of the chapter in which that section appeared, thereafter that street or any part thereof should not be subject to be again improved, but might be repaired. A street in East Portland was improved under that law, and the cost
In Carstens v. Fon du Lac, 137 Wis. 465, 119 N.W. 117, property owners sought to enjoin the city from selling- assessment certificates against property abutting on a street, which certificates had been issued for paving thereon. The law under which the paving- was done. provided for the charging of two-thirds of the cost to abutting property, and one-third to the city, and
The rule announced in the cases cited and abstracted, that the charter of a municipality does not constitute a contract with its members that the laws it was create'd to administer will not be changed, is stated with sufficient definiteness and declared with such unanimity of opinion, that it is unnecessary to do more than cite, in addition, some of the numerous cases from other courts in which it has been approved; and, as a corolláry thereto, that a municipality may by appropriate legislation continue its efforts to improve methods of taxation with respect to the subject here under consideration: State v. Mayor of Newark, 37 N. J. L. 415; Bradley v. McAtee, 7 Bush (Ky.) 667;
IV. It is' further contended that this improvement is maintenance work, and that it should have been paid for out of the' funds of the Park District for that purpose, in which the boulevard is located. , ,. . This, plainly put, is an assumption not justified by the record. The petition alleges that the special tax bills were issued to pay for the improvement of Lin wood Boulevard. These tax bills import primafacie validity, and are evidence of the liability of the property for the charges made therein. It is expressly provided in Section 24 of Article VIII of the present city charter (compilation of 1909, hot. p. 339) every tax bill shall in any suit thereon be prima-facie evidence, of the validity of the bill, the doing of the work and of the furnishing of the'material charged for, and of the liability of the land to the charges stated in the bill.” This authorizes the presumption that the proceedings leading up to and consummating in the issuance of the tax bills were regular and proper. If we look to the resolution under which the work was authorized, as disclosed by the petition, we find it is expressly alleged that the boulevard shall “be paved the full width thereof with bituminous pavement macadam, and the approaches to the cross streets with asphalt;” and that the ordinance for the work should provide, as it did, for the doing of same as provided in the resolution. In the presence of these allegations, it must be presumed that the charter provision requiring plans and specifications of the work as thus indicated, was, in the absence of any allegation of failure, adopted, or in other words, that the procedure conformed to the requirements of the law. This being true, the conclusion follows that this constituted an improvement or repaving of the boulevard rather than a mere maintenance, and that the contention of appellants is more of a conclusion of the pleaders, not
Furthermore, the only allegation of fact in the petition in regard to the character of the work is that wherein it is stated that it consisted of “putting a top dressing on said boulevard.” This, according to the usual signification of the words employed, means resurfacing, which is a paving or repaving, and not maintenance. [Jones v. Plummer, 137 Mo. App. 337.] However, a complete answer to this contention is that whether this work be classified as maintenance or a paving or repaving, the city has the same authority in one case as in the other. Under Section 31 of Article 13 of the charter, supra, the payment of the cost of one may be provided for in the same manner as the other, viz.: by special assessment.
Y. A resume of the contentions here made against the validity of this proceeding is, that under Article 10, Section 31, of the Charter of Kansas City of 1889, a boulevard, after construction, can only be maintained at the expense of the park district. This section is as follows: “Provided, further, that when any parkway or boulevard has been constructed at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the park district in which the same is situated or out of the general park fund.” In support of this contention, it is urged that the former work upon the boulevard having been done under this section, a contract right was thereby created with abutting property owners that all subsequent work would be done under the same authority; and despite the' fact that
The interpretation sought to be given Section 31 of Article X of the former charter, and the application thereto of Section 12 of Article 18 of the present charter, would absolutely, prevent any change in the new charter which imposed any other or different obligations upon persons or property of a city, than those theretofore existing. This is foreign to any reasonable construction of the law on this subject. The right of cities to frame their charters and, as a consequence, to change them, is a continuing right (Morrow v. Kansas City, 186 Mo. 675), which would be nullified under appellants’ construction.
For the reasons stated, we are of the opinion that the petition does not state a cause of action, and the judgment of the trial court is affirmed.
It is so ordered.