211 Mo. 608 | Mo. | 1908
Lead Opinion
— 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;
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, Mis
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 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
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
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
■ 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,
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
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
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
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.
Dissenting Opinion
— This is a proceeding in equity,, •which was filed in the circuit court of Jackson county,, to enjoin the defendants from selling certain real estate, described in the petition and located in Kansas City, belonging to the plaintiffs, for special taxes, designated in the proceeding as “Park and Boulevard Maintenance Tax;” and asking that the special tax-bills be declared null and void, for the reason that they were issued in violation of the Constitution of the United States and the State of Missouri, and contrary to the statutes of this State and the charter of Kansas City, and that they constituted clouds upon the titles-of plaintiffs to said real estate.
As no point is made as to the sufficiency of the pleadings, they will be omitted from this statement.
The cause was submitted to the court upon the following agreed statement of facts:
“1. Plaintiffs are, and were at the commencement of this suit, the owners of the property mentioned and described in the amended petition and in ‘Schedule A’' made a part thereof.
“2. Said ‘Schedule A’ is a copy of the land tax book for the year 1898, so far as that book relates to-the property of these plaintiffs in the West P'ark District, the said land tax book being the assessment roll with the taxes extended thereon for that year, with the collector’s notes entered thereon.
“3. The following is a list of real estate property in said West Park District not charged with any State,, county or general city tax for said year, because exempt from the payment of such taxes, and on all of' which no park maintenance tax was levied. The numbers on the left-hand side running from 1 to 55 are the numbers designated on the plat herewith filed, marked ‘Exhibit A’ and made a part thereof. Said.
“4. The various parcels of land designated on said plat by the letters ‘R. R. L.’ placed thereon, are owned by various railroad companies, the most of them being used for track and depot purposes, and some of them for shop and roundhouse purposes. The said lands marked ‘R. R. L.’ amount in the aggregate to'200' acres. The said lands do not appear on the assessment roll, because assessed by the State Board of Equalization. Said ‘R. R. L.’ lots and lands are not charged with any local park maintenance tax.
“5. The assessed value of lands for said years, buildings and improvements thereon excluded, appearing upon said land tax-book, located in said West Park District, is $10,469,565; the assessed value of buildings and improvements on lands in said West Park District, as the same appears upon said land tax-book, is $5,659,970.
“6. The following is a true copy of the ordinance of said city levying general taxes for the year 1898. [This ordinance was approved April 21, 1898-, the first and second sections being as follows]:
“ ‘Section I. Taxes for the fiscal year 1898, commencing on the 18th day of April, 1898, are hereby levied on all property in Kansas City liable to taxation for State and county purposes, and not by general law exempt from municipal taxation, as follows, to-wit:
“ ‘1st. A general tax of ten mills on each dollar • of assessed value for general purposes. •
“ ‘3d. A tax of one mill on each dollar for such assessed value, which tax is necessary and will be sufficient for the maintenance of the water sinking fund created for the redemption of the city’s outstanding waterworks judgment bonds at the time of their maturity.
“ ‘Section II. The taxes hereby levied shall be entered and extended in the land and personal tax-book for 1898, as follows, to-wit:
“ ‘1st. The general tax against each tract or parcel of land or person or corporation in the first left-hand column, headed ‘ ‘ General Tax Per Centum. ’ ’
“ ‘2d. The aggregate amount of all other taxes against each tract or parcel of land or person or corporation, as one tax, in the second left-hand column, headed “Per Cent Tax for payment of Bonds.”
“The following is a true copy of the ordinance mentioned in the amended petition as levying the special park maintenance tax in said district for the year 1898, with a true copy of the resolution of the Board of Park Commissioners thereto attached. [The resolution is numbered 978; the title and certificate omitted]:
“ ‘Whereas, funds will be needed during the year 1898 for maintaining, constructing, repairing and otherwise improving parks, parkways, boulevards and other public grounds located in the West Park District and
“ ‘Therefore, be it provided by the Board of Park Commissioners of Kansas City, Missouri:
“ ‘Section 1. That for the purpose of maintaining, adorning, constructing and otherwise improving the parks, parkways, roads, boulevards or avenues located in the West Park District in Kansas City, Missouri, said board does hereby recommend to the Common Council of said city that there be levied for the year 1898 a special' assessment of two and one-half mills on each dollar of the assessed value upon all real estate liable for taxation for State and county purposes, exclusive of buildings and improvements thereon, in the West Park District in Kansas City, Missouri, according to the valuation and assessment of real estate in said West Park District made for city purposes for said year; said assessment to be made and collected as said Common Council may provide by ordinance in. pursuance of section number, thirty-three of article number ten of the charter of Kansas City, aforesaid.
“ ‘Section 2. That a certified copy of this resolution be delivered to each house of the Common Council aforesaid as notice of the action and recommendation of this board.’
“ ‘An ordinance levying a special assessment for the year 1898 upon all real estate, exclusive of the improvements thereon, in the West Park District in Kansas City, Missouri, for the purpose of maintaining, adorning, constructing, repairing and otherwise- improving the parks, parkways, boulevards and avenues located in said West Park District, and providing for the manner of payment and collection of said special assessments in pursuance of section number thirty-three of article number ten of the charter of said city.
“ ‘Whereas, the Board of Park Commissioners of
“ ‘Therefore be it ordained by the Common Conn-cil of Kansas City:
“ ‘Section 1. That in pursuance of section number thirty-three of article number 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-hálf 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.
“ ‘Section 2. The special assessment hereby levied and made 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 said West Park District, which are under the control and management of the Board of Park Commissioners as provided in section number thirty-three of article number ten of the charter of said city.
“ ‘Section 3. The special assessment hereby levied shall be entered and extended against each tract or parcel of land in said West Park District liable to such assessment and be collectible in the same manner and
“ ‘The laws and ordinances governing the entering, extending, payment and collection, and the sale for non-payment of general taxes of the city, shall, as far as practicable, govern the entering, extending and collection and the sale for non-payment of the special assessment hereby levied, provided the assessment herein made shall in no way be affected or invalidated by reason of said special assessment not being extended by the city auditor or delivered to the city treasurer within the time mentioned in section twenty of article five of said city charter relating to general city taxes.
“ ‘Section 4. It shall be the duty of the city treasurer to beep a separate account of all assessments levied and collected in pursuance of this ordinance, and said money when collected shall be deposited In the bank or banking institutions of said city having a contract with the city for deposits and safe keeping of the funds of said city in pursuance of section number twenty-two of article number four of the city charter, and all interest received from such depository or depositories on account of the depositing of any fund therein arising from this assessment shall be credited to and become a part of the fund received from this assessment and shall be used for the same purposes for which this assessment is made.
“ ‘Section 5. All ordinances or parts of ordinances in conflict with this ordinance, in so far as they conflict with this ordinance, are hereby repealed.
“8. At the same time the Common Council passed and the Mayor approved four other ordinances levying park maintenance taxes'in the other park districts, as stated in the amended petition. These five ordinances cover all the territory within the corporate limits of Kansas City. In each of the said last-named districts there are, and were at the passage of said ordinances, parks and boulevards to be maintained, which parks and boulevards are owned by the city and are under the control and management of the Board of Park Commissioners.
“9. The following is a copy of an ordinance of said city devoting property to park purposes, the city being the owner of the property at the date thereof. This parcel devoted to park purposes contains four acres. It is a part of the land designated on the plat called ‘Exhibit A’ as No. 19:„
“ ‘An ordinance appropriating certain land in the West Park District, now owned by Kansas City, Missouri, to park purposes and to place the same under the control and management of the Board of Park Commissioners.
“ ‘Be it ordained by the Common Council of Kansas City:
“ ‘Section 1. That the following described land situated in the West Park District, and now owned by Kansas City, Missouri, be and the same is hereby appropriated to park purposes to the end that the same may be improved, adorned and maintained as and for a public park, to-wit:
“ ‘A tract of land bounded on the west by the east line of Holly street in said Kansas City, Missouri, on the north by the south line of Twentieth street, on the east by the west line of West Prospect Place, and on the south by the north line produced from the west line of Reservoir avenue.
“ ‘Section 3. All ordinances or parts of ordinances in conflict with this ordinance, in so far as they conflict herewith, are hereby repealed.
“ ‘Approved September 11, 1897.’
“10. The parcel designated No*. 32, containing one-tenth of an acre, was conveyed to Kansas City for a park by a deed dated the 5th day of May, 1882. Said deed was accepted by the city and the parcel of land so conveyed was named Prospect Park. The following is a true copy of said deed with the endorsements thereon:
“ ‘Knew all men by these presents that we; "William Mulkey and Catherine Mulkey, the wife of said William Mulkey, of the City of Kansas, county of Jackson and State of Missouri, for and in consideration of one dollar to them in hand paid by the City of Kansas, in the county of Jackson and State of Missouri, the receipt whereof is hereby acknowledged, do by these presents remise, release and forever quitclaim unto the said City of Kansas the following described place or parcel of land situate in said City of Kansas aforesaid, to-wit: Lot one, block seven, as shown, by the recorded plat of the resurvey of Payne’s Addition to the said City of Kansas. To have and to* hold the same for the purpose of a public park forever and for no other purpose. In witness whereof we have here
“ ‘William Mulkey, Catherine Mulkey. ’
“This deed was duly acknowledged on the 5th of May, 1882, and was duly recorded on the 31st of May, 1882.
‘ ‘ 11. The above two' pieces of land were the only parks in said West Park District at the date of said ordinance levying special park maintenance assessment. No boulevard, street, avenue or road in said district had at that time been placed under the control of the Board of Park Commissioners; but the following proceedings had been taken by Kansas City for the purposes of establishing and acquiring parks in the West Park District under the provisions of the charter:
“The Board of Park Commissioners had selected and designated land in the West Park District for two parks to be established therein and known respectively as Penn Yalley and West Terrace Park; said selection and designation had been by resolutions by the Board of Park Commissioners defined and described, and on the 6th day of June, 1886, upon recommendation of the Board of Park Commissioners, aforesaid, an ordinance was passed in the Common Council and approved by the mayor of Kansas City, entitled, ‘An ordinance to open and establish a public park in the West Park District in Kansas City, Missouri, to be known as Penn Yalley;’ the area of the land described in said ordinance to be condemned and taken for said park was 134 acres. By authority and provision of said ordinance, proceedings for the condemnation of the land described therein to be taken for said Penn Yalley Park were begun in the circuit court of Kansas City, Missouri, on the 16th day of December, 1896', by cause numbered 28709 in division No. 3 of said court, entitled, ‘In the matter
“Motions for a new trial were duly filed therein, argued and considered by the court and overruled, and judgment was rendered by the said circuit court on the 5th.day of November, 1898, in said cause, confirming the verdict of the jury, and providing that said Kansas City have and hold the property sought to be taken aforesaid for park purposes upon payment therefor of the compensation fixed by the jury. An appeal was taken from said judgment of the court by Martha E. Bacon, James Munroe and W. N. Munroe, owners of certain property which had been assessed with benefits for said park in said proceedings. Said appellants gave a supersedeas bond and filed their bill of exceptions in said cause, which was allowed by the court on the 31st day of October, 1899, and said cause is now, the 4th day of January, 1900, pending in the Supreme Court of the State of Missouri, but has not yet been argued and submitted.
“On the 11th day of September, 1895, ordinance was passed on recommendation of the Board of Park Commissioners, locating a park in West Park District, to be known as West Terrace, and on the 5th day of October, 1896, proceedings were concluded for the condemnation of land for said park by the rendition of a verdict by a jury in said cause,, fixing the compensation to be paid for said property and assessments of benefits to be received in payment of the same,- and,
“Under this new ordinance, proceedings were at once begun and are now pending in the circuit court of Jackson county, Missouri,' for the establishment of the West Terrace Park to contain an area of 26 acres. This cause has been tried and submitted to the jury, which is now assessing the value of lands and benefits to arise from the improvement. Said two parks are designated on the map ‘Exhibit A’ herewith filed in red and are marked respectively ‘Penn Valley’ and ‘West Terrace.’
“12. All parties reserve the right to object to any of the facts before stated on the ground that they are immaterial Or irrelevant. All parties reserve the right to offer other evidence as to them shall seem best. Counsel on both- sides of this case understand that the charter of Kansas City and amendments thereto, mentioned in the pleadings, are public laws of which all courts are required to take judicial notice, but to obviate any trouble that may arise it is agreed that the charter and amendments as' set forth in a printed book entitled ‘ Charter and Revised Ordinances Annotated,. Kansas City, Missouri, 1898,’ shall be considered a part of the record in this case the same as if copied
“The said ‘Schedule A,’ filed with the amended petition and made a part thereof, being the schedule mentioned in the first paragraph of said agreed statement of facts, was also read in evidence by the plaintiffs, and which said schedule is in words and figures as follows:
“tHere follows said ‘Schedule A.’ It is headed ‘Land Tax Book for 1898 of Kansas City, Jackson County, Missouri.’ In one column it gives the tract numbers corresponding to the numbers stated in the petition; in another a description of each parcel or lot; in another the names of the owners. Then follows columns headed as follows: ‘Value Per Parcel Returned by Assessor,’ ‘Value of Improvements Returned by Assessor,’ ‘Total Value Returned by Assessor,’ ‘Value Per Parcel as Corrected by Board of Appeals,’ ‘G-enéral Tax Per Centum,’ ‘Per Cent-Tax for Payment of Bonds and Coupons, ’ ‘ Total Tax for 1898, ’ ‘Taxes Paid and Date of Payment for 1898,’ and ‘Assessment for Maintaining Parks and Boulevards in West Park District.’ This schedule shows all taxes paid save the last-named tax.
“The plaintiffs also put in evidence the plat mentioned in said agreed statement of facts as ‘Exhibit A. ’ It is agreed that the original of said plat may be sent up to the Supreme Court or to any other appellate court to which this case may go, and that it shall be taken and considered the same as if it were a certified copy.”
The plaintiffs, to further maintain the issues on their part, introduced parol evidence tending to show how the assessment of the taxes was made, and the character and amount of land owned by the city for
The court found for the defendants, dissolved the temporary injunction, and dismissed plaintiffs’ bill.
In due time plaintiffs filed their motion for a new trial, and in arrest of judgment, which were, by the court, overruled — to which action of the court in overruling said motions, the plaintiffs duly excepted and have appealed the cause to this court.
I. In my judgment the taxes in controversy are void for two reasons; and that for either of which the judgment of the circuit court should be reversed, and a decree entered here in conformity to the prayer of the bill. Those reasons are as follows: First, because they were in violation of the express terms of section 33 of article 10 of the charter of Kansas City. Second, because the ordinance making the levy is unconstitutional and void, for the reason that it is in conflict with that portion of section 1 of the 14th Amendment of the Constitution of the United States, which is in the following words: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ”
I will consider these two propositions in the order stated.
Section 33 of article 10 of the charter of Kansas City reads 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
The ordinance making the levy complained of provides in part as follows:
“Section 1. That in pursuance of section number • thirty-three of article number 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.
“Section 2. The special assessment hereby levied and made shall be used for the purpose of maintaining, adorning, constructing, repairing and otherwise improving the parks, parkways, roads, boulevards or avenues, or portions thereof, located in said West Park District,” etc.
There were fifty-five tracts of real estate lying within the bounds of said park district which did not appear upon the books of the city assessor showing the real estate of said district which was assessed for general city purposes for the year 1898, and were, therefore, under the terms of section 1 of said ordinance, excluded from the special assessment for park and boulevard purposes. Said parcels of land in the aggregate exceeded in area more than two hundred and forty acres, and belonged to various railroad com
The words “the real estate” of the district are so plain and unambiguous in their meaning that they need no interpretation, and, if undertaken, it would on that account be difficult to find language to do so. In fact, if I correctly understand the majority opinion, it does not hold that those words if considered alone and independent of the words, “May, upon recommendation of the Board of Park Commissioners, be assessed annually for maintaining, adorning,” etc., found in the next clause of the section, would mean anything less than the entire real estate lying within the park district, hut holds that the words last quoted modify the meaning of the words “the real estate” of the district so as to authorize the park board to assess any or all of said real estate for those purposes. In other words, that when the two clauses are read and construed together they mean the same as if the section read as follows: “Ilpon the recommendation of the Board of Park Commissioners the city council may
Clearly the council have no such power.
This question was not involved in the case of Kansas City v. Bacon, 147 Mo. 259, nor in any other case in this court to which my attention has been called. There is nothing in that case that militates against the foregoing observations. That was a proceeding under the Constitution to condemn land for park purposes, and, under the law, before real estate could be assessed for benefits received from establishing the park, a freeholders’ jury was required to find, as a matter of fact, that the land was actually benefited by the establishment of the park before the assessment could be made. In that case the jury found that the land was not benefited, and for that reason refused to assess benefits, and this cqurt correctly sustained that finding of the jury; but that is not this case. Here all of the property in the district is conclusively presumed to be benefited, and no owner of any tract of land lying within the boundaries of the district is even entitled to' a hearing upon the question of benefits or no benefits. This is a legislative assessment, and the mere fact that the property is located within the benefit district is conclusive of the fact that it is benefited by the improvements. It is thus seen that the question there involved was one of benefits, while the one here is discrimination. This is the very foundation of'the scheme of taxation,
Admitting for the argument’s sake, and that is the best any one can claim for said charter provision, that the two clauses thereof before quoted when read together render the meaning thereof ambiguous and sus-, ceptible of either of the two constructions before suggested, then that construction should be placed upon it which will result in just and reasonable results. In ascertaining the meaning of a law, whether organic or statutory, it is always permissible to consider the consequences of any construction proposed. In obedience to this wise and just cause of construction, this court has many times held that it is not to be presumed that unjust or unreasonable results are to flow from the law; and it should not be construed so as to accomplish such
It will not do to say that the able and distinguished gentleman who drafted this charter ever intended to confer upon the city council the.power to exempt from taxation property in the district which was taxable under the law, and thereby unjustly increase the burden of taxation upon the remaining property of the district.
Ever since the case of Sheehan v. Good Samaritan Hospital, 50 Mo. 155, this court in an unbroken line of cases, down to date, has uniformly held that all such property as that exempted in the case at bar is not exempt from taxation for benefits received by local improvements. All of these cases are predicated upon the theory that each piece of real estate is specially benefited by the improvement and that it must be taxed with its proportional part of the total cost of the improvement. [Heman Construction Co. v. Railroad, 206 Mo. 172.]
II. The second reason I have for believing the judgment should be reversed is, that the ordinance making the levy of the special taxes involved in this controversy is unconstitutional and void, because it violates section 1 of the XIV. Amendment of the Constitution of the United States, which provides that no State shall deny to any person within its jurisdiction the equal protection of the laws.
In the consideration of this question it must be borne in mind that, under the charter provision before
The owners of the lands assessed claim that the ordinance in question denies to them the equal protection of the laws; that it is an unjust discrimination against them and in favor of those whose lands are not assessed, and thereby casts the entire burden of the taxation upon their property, in violation of said amendment. The intention of that amendment was to prevent legislation which embraces within its provisions only a portion of the persons or things which naturally belong to the same class and who are similarv situated. [Railroad v. Ellis, 165 U. S. 150.]
Upon the other hand, counsel for respondents contends that the record shows that the ordinance in question embraces within its provisions all lands of the district which naturally and reasonably belong to the same class and that are similarly situated and used, and that it does not arbitrarily select only a portion of the lands which rationally belong to the same class, and taxes them, and omits other lands of the same class.
If the record showed that the ordinance embraced all of the lands that belonged to the same natural class, as contended for by respondents, then the ordinance would not be obnoxious to that constitutional provision. The laws of the State do not offend against that provision if all persons and things that are subject to them are treated alike under similar circumstances and conditions in respect to both the privileges con
It is argued that the class of land embraced within the terms of the ordinance does not belong to the same class that the lands which are not assessed belong to, but learned counsel for respondents has not pointed out the distinguishing features that separate the lands into two natural classes. If they are to be classified according to ownership or by the purposes for which they are being used, then the classification might be extended so as to exempt the property of telegraph, telephone, express and steamboat companies. And if that extension can be made without infringing upon that section of the Constitution, why might it not reach out still further and take in the property of insurance and banking corporations, or that of any other corporation or individual upon whom the friendly smiles of the ■city council might perhaps gently fall? Or, if any one or all of those things may be done, what would prevent the council from changing its mind, transfer its affections, become more just, and shift the burden of taxation from the shoulders of those who have borne it for the last decade and saddle it upon the property which has escaped this taxation, through this favoritism, for the next ten years, and thereby correct the injustice and discrimination heretofore done?
The answer to the question must obviously be nothing, for the reason that all of the property now exempt from taxation under the ordinance is, according to the Constitution and laws of the State, subject to taxation for these special benefits. This court has so held time and again, and it would be a useless waste of time to cite the decisions so holding. That being undeniably true, then from whence does the city council derive its
The foregoing views are fully supported by the case of St. Louis v. Heitzeberg Packing Co., 141 Mo. 375, which involved the validity of an ordinance of the city of St. Louis, commonly called the “smoke ordinance.” In holding that ordinance void Gantt, J., speaking for the court, used this language: “On the other hand, if, as learned counsel suggests, the ordinance is not enforced in all its strictness, but much is left to the discretion of the inspectors, then we have an unregulated official discretion which of itself renders the ordinance void, for it cannot be tolerated that the rights of a citizen in this State shall depend entirely upon the caprice of any official, high or low. All valid ordinances must fix the duty or liability of the citizen by certain intelligible prescribed rules so that he may govern himself accordingly. ” •
The difference between the question presented in that case and this is one of degree only, and not one of principle. There the ordinance permitted the inspector to fix and prescribe the rights of the citizen; and here, if respondents’ contention that the charter of Kansas City authorizes the city council to determine what property shall or shall not be taxed for general purposes, or for local improvements, is right, it would be an equally unauthorized delegation of power, for the reason that all property must be taxed according to the Constitution and laws of the State, and not according to the caprice of the city council. If the city council has that power, then what is to prevent it from taxing
It is not denied that the city council has certain discretionary powers, but they are encompassed within certain well defined and known limits, and the power to determine what property may or may not be taxed is not one of those powers.
The same question came before the Supreme Court of the United States in the case of Yick Wo v. Hopkins, Sheriff, 118 U. S. 356. In that ease the court held that the State was prohibited by the Constitution of the United States from delegating to the council such arbitrary power to pass such unjust and discriminatory ordinances; and in doing so used the following-language :
“It is contended on the part of the petitioners that the ordinances for violations of which they, are severally sentenced to imprisonment, are void on their face, as being within the prohibitions of the Fourteenth Amendment; and, in the alternative, if not so, that they are void by reason of their administration, operating unequally, so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances — an unjust and illegal discrimination, it is claimed, which, though not made expressly by the ordinances, is made possible by them.
“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude
“There are many illustrations that might be given of this truth, which would, make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will, under certain conditions, nevertheless
“In reference to* that right, it was declared by the Supreme Judicial Court of Massachuetts, in Capen v. Foster, 12 Pick. 485, 489, in the words of Chief Justice Shaw, ‘that in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations., in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly, and convenient manner;’ nevertheless, ‘such a construction would afford no warrant for such an exercise -of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.’ It has accordingly been held generally in the States, that, whether the particular provisions of an act of legislation, establishing means for ascertaining the qualifications of those entitled to vote and making previous registration in lists of such, a condition precedent to the exercise of the right, were or were not reasonable regulations, and accordingly valid or void, was always open to inquiry, as a judicial question. [See Daggett v. Hudson, 1 Western. Rep. 789, decided by the Supreme Court of Ohio, where many of the cases are collected; Monroe v. Collins, 17 Ohio St. 665.]
‘ ‘ The same principle has been more freely extended to the quasi-legislative acts of inferior municipal bodies, in respect to which it is an ancient jurisdiction of judicial tribunals to pronounce upon the reasonableness and consequent validity of their by-laws. In respect to these, it was the doctrine that every by-law must be reasonable, not inconsistent with the charter
“This conclusion, and the reasoning on which it is based, are deductions from the face of the ordinance, as to its necessary tendency and ultimate actual operation. In the present cases we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to' warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and. thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York, 92 U. S. 259; Chy Lung v. Freeman, 92 U. S. 275; Ex parte Virginia, 100 U. S. 339; Neal v. Delaware, 103 U. S. 370; and Soon Hing v. Crowley, 113 U. S. 703.
“The present cases, as shown by the facts disclosed in the record, are within this class. It appears that
Conceding that the charter of Kansas City gives to the city council the power contended for by learned counsel for respondents, then, according to the last authority cited, it would be clearly violative of the Fourteenth Amendment, because it would authorize the council to make the unjust discrimination before pointed out.
But in my opinion the charter grants no such capricious power to the city council. I believe, as stated in the former'part of this opinion, it requires the council to assess all the real estate of the district, and not all or parts as it may see proper to do. If that is true, then the charter provision is not void because it violates. the Fourteenth Amendment in that particular; but the
I am, therefore, of the opinion that the judgment should be reversed, and that a decree should be here entered adjudging said tax bills null and void and of no force or effect.