46 Kan. 438 | Kan. | 1891
Opinion by
A motion for a rehearing was filed in this case, that, among other causes assigned for a reversal of the judgment below, alleges the following:
*439 “ It had escaped the attention of the court and counsel for plaintiff' in error, until after the argument, that the amend-
“The court inadvertently applied the principle of construction and power of legislative bodies as set forth in Farrar v. City of St. Louis, 80 Mo. 393, and cases referred to, while it will be apparent on a reconsideration that the court of the state from which the rule was borrowed shows that the rule of apportionment — the front foot — is provided by the law, and any change by the council makes the proceedings null and void.”
Again, it is urged that^-
“The court inadvertently overlooked the fact that the proviso and amendment of 1887, providing for grading on a petition, is to be construed independently, or as modifying all the previous laws on the same subject, as this court has decided in another case.”
The petition for the grading of Reynolds avenue from Fifth street to Tenth street asked that the grading be done as provided in § 4 of the act of the legislature entitled “An act to amend §§ 8, 9,11,13,14, etc., of an act entitled ‘An act to incorporate and regulate cities of the first class, and to repeal all prior acts/ etc., approved March 5,1887.” It was stipulated and admitted on the hearing below, that the defendant city was formed by the consolidation of the former cities of Wyandotte, Kansas City, Kas., and Armourdale, in April, 1886, under the provisions of an act of the legislature of the s.tate of Kansas, entitled “An act to provide for the consolidation of cities,” approved February 11,1886, and an act amendatory thereto, approved February 18, 1886. This petition to grade the street was filed in July, 1889, and at that time § 13, or ¶ 557, General Statutes of 1889, was in force, and read as follows:
“Sec. 13. For opening, widening, extending and grading any street, lane, alley, or avenue, and for doing all excavating and grading necessary for the same, and for all improvements of the squares and areas formed by the crossing of streets, and*441 for building culverts, bridges, viaducts, and all crossings of streets, alleys, and avenues, the cost or contract price thereof shall be paid out of the general-improvement fund, except as otherwise provided by law; and for all paving, macadamizing, curbing and guttering of the streets and alleys, the assessments shall be made for the full cost thereof on each block separately; on all lots and pieces of ground to the center of the block on either side of such street or avenue, the distance improved or to be improved, or on the lots or pieces of ground abutting on such alley, according to the assessed value of the lots or pieces of ground, without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council. It shall be the duty of said appraisers, within ten days after being notified of their appointment, to proceed to appraise such lots and pieces of land as may be designated by the council, after having taken and subscribed an oath to make a true and impartial appraisement, which appraisement shall be returned to the city council at its first meeting after the same shall have been completed. When said appraisement is returned, the mayor and council shall appoint a time for holding a special session, on some day to be fixed by them, to hear any complaint that may be made as to the valuation of any lot or piece of ground appraised as aforesaid, a notice of which special session shall be given by the mayor in the official paper of the city; and said mayor and council at said special session shall alter the valuation of any lot or piece of ground, if in their opinion the same has been appraised too high or too low: Provided, That in case a petition of a majority of the resident property-owners of a majority of the front feet on any street or part thereof shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof, at the 'cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.”
Paragraph 1077 was also, it is claimed, in force, and it reads as.follows:
“The grading of all streets, avenues and alleys in said consolidated city, after such consolidation, shall be borne by the*442 property abutting thereon, and the assessments for the payment thereof shall be made on each block separately, in the same manner and with like effect as is provided by the law governing cities of the first class for paving, macadamizing, curbing and guttering of streets.”
It is claimed by the city that the assessments for the grading were made under paragraph 1077, as this was a consolidated city; while it is claimed by the plaintiff in error that these assessments must be governed by the proviso contained in paragraph 557. The opinion heretofore rendered affirmed the judgment below by a construction of the proviso to paragraph 557, General Statutes of 1889; the theory of the decision being that the proviso did not expressly state a rule for apportionment, and, the one adopted being fair, just, and equitable, the court would not interfere. Under the authorities cited by counsel for plaintiff in error, we have serious doubts as to this proposition, and are strongly inclined to the belief that the proviso does fix a rule of apportionment. In the case of City of Lexington v. McQuillan’s Heirs, 9 Dana, 513, the charter of the city gave the mayor and council authority to grade and macadamize streets and alleys of said city, at the cost and expense of the lot-owners fronting such streets or alleys, and required them to apportion the cost and expense of grading and macadamizing equally on the lot-holders. In the year 1836 the council graded and macadamized Main street, from the intersection of High to Maxwell streets, and distributed the cost thereof among the owners of lots on each side of the squares opposite to and adjoining the improvement thus made. McQuillan’s heirs being owners of a lot on the corner of Main and High streets, the city council assessed against them, as their portion of the cost of the . work, the sum of $509.92, that being one-half the amount charged for grading and paving opposite to their ground. This sum greatly exceeded the proportionate cost of the entire work done opposite to the lots of ground respectively in the same square, in consequence of a deep cut and a stone wall made opposite to the lot of'McQuillan’s heirs, and they resisted the
“It is manifest that this section of the charter prescribes a distribution of the entire cost of grading and paving a street to the whole extent of the square, among the owners of the ground in that square, according to some principle of equity, and that it did not intend to authorize the exaction from any such proprietor of the cost of construction opposite to and coextensive with the front.of his lot, when the cost of that portion of the work had exceeded the average charge upon the whole square. And it seems to us, also, that the rule of equality prescribed by the legislature is the territorial extent, and not the value of each lot of ground. This is the test of the authority given to a portion of the owners of the grounds in any one square to renovation of the street and sidewalks opposite such square at the cost of all the owners of ground in it. Had the ad valorem principle been adopted, the owner of a comparatively small piece of ground, expensively improved, might control the other owners of ground in the same square, and impose on the majority a heavy burden against their consent, and possibly against their interest. And as the extent of each proprietor’s front on the street is the criterion of authority given to a part of them to control the whole and impose a common burden, it is altogether reasonable to infer that the aggregate responsibility should be, and was intended to be, distributed according to the same principle. Then as the amount assessed against .McQuillan’s heirs is admitted to be much greater than their portion of the cost of the work opposite the whole square, distributed among the several owners of the ground therein, according to the rule prescribed by the statute, the circuit judge did not err in enjoining the coercive collection of the assessment as thus illegally made.”
This is equivalent to saying that under the section of the charter the whole square is a taxing district, and the legal mode of assessment is to ascertain the cost of the improvement of the square, and apportion that cost equally to. the lot-owners in proportion to the frontage of their respective lots on the square.
In the case of the City of Louisville v. Hyatt, 2 B. Mon. 177, it appears that § 9 of the charter of that city is the same as
“That, in distributing the burden of the entire cost of improvement, each lot-holder on the square divided by the graded street should be required to pay, not one-half the cost of the grade opposite his ground, but his adequate portion of the whole cost, estimated according to the relative extent of his lot on the street.”
In the case of The State, ex rel., v. City of Portage, 2 Wis. 562, it will be seen that the charter of the city provided, that upon the application of two-thirds of the owners of lots on a street, the council should have power to have such street graded, and, for the purpose of defraying the cost, to levy and collect a special tax on the lots abutting on such street in proportion to the size or front of such lots, respectively. The city passed an ordinance requiring a certain street to be graded, and directed that each lot should be charged with the.work done in front thereof. This ordinance the court held void, as being repugnant to the charter, Paine, J., saying:
“That all that part of the ordinance which provided that each lot or part of a lot should be chargeable with all the work done in front of it is repugnant to the provisions of the charter on that subject, can admit of no question. The charter evidently requires that, when any street .is ordered to be graded, the section so ordered to be improved shall, for the purposes of taxation, be treated as a whole; and that when the whole amount of tax to be raised for that work is ascertained, it shall be equalized and divided among the various lots chargeable therefor, according to their front or size. This, it is obvious, is an entirely different principle of assessment from that which charges each lot with the entire expense of the improvement in' front of it, and seems to avoid much of the inequality and injustice of the latter system. But it is the latter which is provided for in the ordinance under which the contract is let, and that part of it is of course void.”
The cases of Williams v. Mayor of Detroit, 2 Mich. 560, and Woodbridge v. City of Detroit, 8 id. 274, construing provisions in the charter of the city of Detroit similar to the proviso we
This principle was distinctly recognized by this court in the case of Parker v. Challiss, 9 Kas. 155. The charter of the city of Atchison expressly provided that the city council should have power to make sidewalks, and “for making and repairing sidewalks the assessments shall be made on all lots or pieces of ground abutting on the improvement, according to the front foot thereof.” In January, 1869, the city council by ordinance required the owners of lots on 17 different streets to build sidewalks. Challiss owned seven lots in a block fronting on Kansas avenue in said city. He resisted the collection of the special assessment made for the construction of the sidewalk in front of his lots, principally on the ground “that the city had no authority to make assessments for building sidewalks on said various streets upon all the lots on said streets fronting on said sidewalks, the power existing only to assess lots on each street for the sidewalks built thereon;” and this was the finding and judgment of the district court of Atchison county. It will be seen from this statement that the question was, whether the whole distance of all the streets ordered to be improved was the taxing district, or whether each street was a separate and distinct taxing district. Among the facts shown on the trial below was, that some of the streets on which sidewalks were ordered to be built were not graded,
“The power to make sidewalks is here given absolutely and without limitation. When and upon what streets they shall be made is committed to the discretion of the mayor and council. . . . This discretion is not limited to a single street. They may sidewalk the whole city at once, and by a single contract. But the right to assess the lots fronting on the improvement to pay for the same is coextensive with the power to make it. . . True, as urged, a sidewalk on one street may cost- more than a sidewalk on another, and if both be united in one contract and one assessment, the owner of a lot on the latter street may have to pay more than if his street only was sidewalked. But the same is true not only of two streets, but also of two blocks on the same street, or of two lots in the same block. Still there is no injustice in apportioning the entire cost of a sidewalk upon the several lots fronting it. The value of a sidewalk depends greatly upon its extent.”
In the case of City of Lawrence v. Killarn, 11 Kas. 499, it was conceded, in the briefs of counsel for both sides, “that the statute does not charge the property with the cost of building the walk in front of the lots, but the entire improvement — all the walk directed to be built — is to be assessed to the abutting property according to the front foot thereof;” and, with this concession, the question was whether the assessment
The case of Hines v. City of Leavenworth, 3 Kas. 186, is instructive, because of the change in the rule of apportionment during the progress of the improvement. In June, 1863, the city passed an ordinance providing for the improvement of streets, the third section of which provided: “For the purposeof making such improvements', a special tax shall be levied and collected upon adjacent real estate extending to the center of the block on either side of the improvements.” While the work was in progress the legislature passed an act amending the act incorporating cities, by which several methods were prescribed for levying taxes for the improvement of streets, and, among others, a levy according to the area of the abutting property, and providing that this method should apply to improvements then being made. The city passed an ordinance in pursuance to the amended charter. The city engineer made another assessment of the cost of the work according to the area of the lots. Hines et al. attacked the validity of the assessments, they being owners of lots abutting on the improved streets, on the ground that the law under which the assessment was made was not applicable — that the law was unconstitutional, in that the rate of assessment ■authorized was not equal and uniform. The court, after affirming the constitutionality of the amended act and declaring its application to the improvements then in progress, says:
“ The cost of the improvement must be assessed against the adjacent property; the charge must extend back to the middle of the block. It must be levied in one of three prescribed ways, and in proportion to the cost of the whole improvement.”
This is the only equitable construction that can be given to the statute under consideration. Special assessments are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of property peculiarly situated as regards the contemplated expenditure. (Cooley, Taxation, 606.) The principle is that—
“When certain persons are so placed as to have a common*448 interest among themselves, but in common with the rest of the community, laws may be justly made providing that under suitable and equitable regulations those common interests shall be managed so those who enjoy the benefits shall equally bear the burden.” (Shaw, C. J., in Wright v. Boston, 9 Cush. 233.)
In Palmer v. Stumph, 29 Ind. 329, an assessment is spoken of as “being the adjustment of the shares of a contribution to be made by several towards a common object, according to the benefit received.” In this state, assessments by benefits are made by appraisers, who value the property included in the district to be improved, and apportion the cost thereof in proportion to such valuation. This is a legislative requirement, and in the opinion of Judge Cooley, in his work on Taxation, is the most equal and just method. The legislature must determine over what territory the benefits must be diffused, because this is an undoubted and necessary power pertaining to all matters of taxation. The whole subject of taxing districts belongs to the legislature. (Cooley, Taxation, 640. See especially the case of Sinton v. Ashbury, 41 Cal. 525.) Property can only be assessed for local improvement on the principle of benefits received by the property from the construction of the work, and the benefits must be imposed on the property proportionately. (Crawford v. The People, 82 Ill. 557.) It is equally within the power of the legislature to prescribe one district over which the whole cost of the improvement shall be spread, or to make separate districts for the improvement along the several blocks, (Creighton v. Scott, 14 Ohio St. 438,) but when once prescribed, the levy must embrace all the property within the district, and to omit any would defeat the .rule of apportionment. (Hassan v. Rochester, 67 N. Y. 528; Matter of Churchill, 82 id. 288; People v. McCune, 57 Cal. 153.)
Whatever rule of apportionment is adopted, it must be just and equitable, and this is a question for the courts. Judge Dillon, in his work on Municipal Corporations, states that there has been a diversity of opinion in the courts as to whether
“The one right in principle, and most just in its practical workings, is that the assessment be made upon all the property specially benefited by the improvement, according to the exceptional benefit each lot or parcel of property actually and separately receives.” (Dill., Mun. Corp., p. 934, §761, subsec. 5.)
This is the sole object of our statute requiring each and every lot or parcel of ground to be appraised, excluding.improvements thereon, so that each naked lot can bear its proper proportion of the cost made in improving the block in which it is situate, or the entire distance on the street improved. These cases establish the rule that, when the legislature establishes the extent of the taxing district, it cannot be lessened or divided by the council, but that body must act in strict compliance with the terms of the power delegated. If, under this proviso, the extent of the improved street is the taxing district, the council must not depart therefrom, and say that each block must be separately taxed for the improvement made in its front, as that is establishing a different rule for the apportionment of the cost of the work.
From these decisions it inevitably follows that, without some express legislative sanction, the true rule is, that the whole property to be improved constitutes a single taxing district, and the owner of a lot abutting on the improved street is required to pay that portion of the cost of the improvement that the valuation of his lot bears to the valuation of all the lots or parcels of ground subject to assessment in the taxing district. This rule is changed by the legislature in respect to paving, macadamizing, curbing and guttering streets in cities of the first class, and each block separately made a taxing district for these purposes; but, as we think, the rule applies to the proviso we are considering. An examination of § 4,
“That in case a petition of a majority of the resident property-owners of a majority of the front feet on any street or part thereof shall petition the mayor and council to grade any street, and to grade and pave the intersections thereof, at the cost of the owners of the lands fronting upon the street described in the petition, and if such petition shall be ordered spread upon the journal of the council by a majority of the council elect, the mayor and council shall thereafter have power to assess the cost of such improvement against the lots and parcels of land abutting on such street so improved abutting property.”
The council has power originally, without petition from lot-owners, to order a street graded, and to pay for such improvement out of the general-improvement fund. If the council refuse or neglect to order a particular street or part of a street graded, the proviso gives the resident lot-owners who have a majority of the front feet on a street the right to have the street graded on certain conditions; but in such a case the cost of grading must be apportioned to the lots and parcels of land abutting on the graded street. This proviso, then, gave a right not granted by the body of the section. The council cannot pay the cost of paving, macadamizing, curbing and guttering streets out of the general-improvement fund, for the full cost of such an improvement must be assessed against each block separately thus improved. If this proviso intended that the grading of a part of a street petitioned for should be paid for in the same manner as paving,
It follows that the motion for rehearing is sustained, and the judgment of the court below reversed, for the sole reason that there is a rule of apportionment prescribed by the legislature making the whole distance on the street to be improved the taxing district. The petition and ordinance are valid, and probably the only thing required is a new apportionment and assessment of each lot or parcel of ground abutting on the graded street, so that it pays its proper proportion of the whole cost of the grading.
By the Court: It is so ordered.