Schmelzer v. Kansas City

| Mo. | Sep 6, 1922

This is a suit to enjoin the further prosecution of the work of grading Twenty-third Street in Kansas City and the paying of the expense thereof by tax bills issued against property in a designated district. The suit was brought by appellant. She owns a lot in the benefit district. This appeal is from a judgment rendered after the trial court had sustained a demurrer to the petition and appellant had refused to plead further.

The petition sets out the steps taken by the Board of Public Works, the Council and the several authorities which function under the charter in the matter of improvements of the kind in question. The resolution, ordinance and court proceedings are set forth in full, as are all the steps taken in the matter. These need not be herein set out in that way, since the questions raised do not require it.

Twenty-third Street leads through the southern part of the business portion of Kansas City, and at its western end proceeds along a viaduct which has been constructed at an expense of several hundred thousand dollars, and which is continued westward by a like structure erected at like great expense by the city of Kansas City, Kansas. The viaduct crosses the West Bottoms and unites the business sections of these two important cities. The contemplated improvement of Twenty-third Street is designed to make this roadway accessible from the east, and other improvements are intended to bring the streets which cross Twenty-third to such a level that they will cross this thoroughfare at grade. The benefit district over which it is proposed to spread the cost of the improvement of Twenty-third Street extends eastward from the State line about three miles, and is about one mile wide. The total value of the property in this district exceeds twenty-five million dollars. The cost of the proposed improvement will be about three hundred and forty-five thousand dollars, which may be diminished if certain retaining walls are found to be unnecessary. Thirty thousand dollar's worth of work has already been done by the contractors, who are parties defendant with the city in this suit.

It is alleged that appellant's lot is over three miles from the State line, but it does not appear from the petition how far it lies away from Twenty-third Street, nor from the improvement. Appellant contends (1) that the benefit district sought to be established is "unreasonable, arbitrary and oppressive, in that the land" of appellant and others "at great distance from the proposed improvement will be assessed at the same rate as land abutting on the improvement;" that to create and enforce such a lien is to violate Section 30 of Article II of the Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States; that (2) the tax assessed against appellant's property will exceed the benefits and thereby constitutes a taking without due process of law; that (3) the suit or proceeding brought to determine the validity of the ordinance is void because it (a) was not brought as required by the charter and (b) was not an action in rem; and further, because the proceeding is unconstitutional in several particulars and is, in effect, a mere unauthorized declaratory judgment; that (4) the contract between the city and the contractors is void because (a) it covers only a part of the work contemplated by the ordinance, (b) there is an unreasonable excess of contract cost over estimated cost and (c) because an arbitrary discretion to determine whether part of the work is to be done is vested in the City Engineer and the Board of Public Works.

I. Section 28 of Article VIII of the Charter of Kansas City provides that the cost of an improvement like that of Twenty-third Street in question in this case may be levied in proportion to benefits in a district to be defined by ordinance applying to the particular case, and is excepted from the provision of Section 3 of Article VIII, in so far as determining the benefit district is concerned. It is not denied that this improvement falls within the class defined by Section 28 of Article VIII. It is denied that the benefit district established by ordinance is valid. Section 28 of Article VIII contains the following: "The public work described above shall be provided for by ordinance, and the city may provide that after the passage of the ordinance and after an approximate estimate of the cost of the work shall have been made by the Board of Public Works, the city shall file a proceeding in the Circuit Court of Jackson County, Missouri, in the name of the city against the respective owners of land chargeable under the provisions of this section with the cost of such work. In such proceeding the city shall allege the passage and approval of the ordinance providing for the work and the approximate estimate of the cost of said work; and shall define and set forth the limits of the benefit district, prescribed by the ordinance, within which it is proposed to assess property for the payment of said work. The prayer of the petition shall be that the court find and determine the validity of said ordinance, and the question of whether or not the respective tracts of land within said benefit district shall be charged with the lien of said work in the manner provided by said ordinance." It is further provided that service of process in such proceeding "shall be governed by the provisions of Section 11 of Article XIII of the charter, relating to service of notice and summons in proceedings for the ascertainment of benefits and damages for the condemnation of lands for parks and boulevards . . ." Under Section 11 of Article XIII, notice by publication is authorized and service by summons is required only when the court shall make an order to that effect. No such order was made in this case. The ordinance provided that a proceeding under Section 28 should be begun and prosecuted. This was done.

The first contention, in this connection, is that "the action was not brought in the name of the city against the respective owners of land chargeable . . . with the cost of the work." The style or title of the case as it appeared in the petition filed is: "In the Circuit Court of Jackson County, Missouri, at Kansas City, November Term, 1916. In the Matter of Determining the Validity of Ordinance of Kansas City, Missouri, No. 28181, approved November 4, 1916, and of the proposed tax lien thereunder for the cost of grading Twenty-third Street, as widened from New Brook Street to the east line of Jefferson Street." The petition begins: "Now comes Kansas City, Mo., by," etc. Then follow allegations of the various steps taken toward the making of the improvement and a detailed description of the benefit district. The owners of the property therein are not named in the petition. The order of publication was directed "to all whom it may concern," as it is specifically provided shall be done by Section 11 of Article XII, according to the provisions of which service is required to be made in such a proceeding unless otherwise ordered by the court. The case is brought in the name of the city. The petition specifically so states. The naming of the thousands of property owners in the district (said to be about seventeen thousand) was not essential under any constitutional provision. "Up to this time, notice to property owners generally in the described benefit district and defining the district, as here, has been sufficient to bring in interested parties. It was sufficient in this instance." [Kansas City v. St. Louis K.C. Land Co., 260 Mo. l.c. 418, 241 U.S. 419" court="SCOTUS" date_filed="1916-06-05" href="https://app.midpage.ai/document/st-louis--kansas-city-land-co-v-kansas-city-98757?utm_source=webapp" opinion_id="98757">241 U.S. 419.] The charter might possibly give some basis for a view that such names were required to be set out in the proceeding, if it is to be construed without reference to the principle just quoted. With the principle in mind, however, and the express language of Section 11 of Article XIII given its plain effect, it is clear that such an apparently impossible task was not intended to be laid upon the city.

II. It is argued that the special proceeding looks merely to a "declaratory judgment," and is therefore void under our law. The fact is that a proceeding in court is one of the recognized methods of assessing benefits. [West v. Burke, 286 Mo. 368, and cases cited.] That a proceeding in a court or before some other validly ordained tribunal may be made a part of the machinery for assessing benefits and that property owners may thereby be permitted to be heard on this otherwise almost exclusively legislative question is too well established to require further discussion or citation of authorities.

III. The remaining questions of consequence are such as should have been raised in the proceeding in the circuit court. They were raised and litigated by many of the property owners. Appellant had her opportunity to litigate these questions. She was in court. She allowed the judgment to go without appearance or appeal. She is now bound by it.

The judgment in this case is affirmed. Graves, Higbee, DavidE. Blair, Elder and Walker, JJ., concur.