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Mullins v. Cemetery Assn.

Appeal from Jackson Circuit Court.-Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

McCune, Harding, Brown & Murphy, William Moore and Clarence S. Palmer for appellant.

V.

(1) As to the property of this defendant, the imposition of the special assessments in question could result in no possible benefit, actual or potential. The acts were manifestly oppressive and an unreasonable exercise of municipal authority and therefore void. The trial court erred in not so finding and deciding. Neenan v. Smith, 50 Mo. 525; Grading Co. v. Holden, 107 Mo. 305; McGhee Walsh, 249 Mo. 279; Corrigan v. Gage, 68 Mo. 541; Kelly v. Meeks, 87 Mo. 401; Copeland v. St. Joseph, 126 Mo. 417; St. Louis v. Theatre Co., 202 Mo. 690; Halpin v. Campbell, 71 Mo. 493; Freund on Police Powers, sec. 158. (2) As the charter under which this work was done contained no provision for notice to property owners or no opportunity for a hearing, the courts alone can give redress against the unreasonable and arbitrary acts of the city authorities. Sec. 10, art. 14, Charter of 1889, p. 147; Meier v. St. Louis, 180 Mo. 409; McGhee v. Walsh, 249 Mo. 284. (3) If this court decides that the ordinances were not so unreasonable as to be void, still it was error in the trial court to hold that one tax bill could be issued, including both the land still owned by the defendant and the land already sold. The effect of this ruling, under the facts in the record, was to make half the amount of the tax bills the personal obligations of the defendant. The trial court erred in not giving defendant's instruction number 2. Sec. 10, art. 14, Charter of 1889, p. 147; Fowler v. St. Joseph, 37 Mo. 228; St. Louis v. Provenchere, 92 Mo. 66;

Mullins v. Cemetery Assn.

Cooley on Taxation, sec. 410; Christian to use Taussig, 8 Mo. App. 602; Kemper v. King, 11 Mo. App. 116; City to use v. Allen, 53 Mo. 54; Neenan v. Smith, 50 Mo. 525; State v. Newark Co., 50 N. J. L. 66; Cemetery Co. v. Brockmaster, 49 N. J. L. 449; Neil v. Ridge, 220 Mo. 233. (4) The enforcement of the special assessments with no resulting benefits, actual or potential, amounts to the taking of property of defendant without due process of law, in violation of section 20, article 2, of the Constitution of Missouri, and of section 1 of the Fourteenth Amendment of the Constitution of the United States. Hayes v. Missouri, 120 U. S. 68; Railroad v. Minnesota, 134 U. S. 458. (5) The judgment of the trial court in enforcing the whole amount of the special tax bills as a single lien against the property now owned by defendant, including that part of the amount of said tax bills computed on the area of land already sold by defendant, amounts to a denial to the defendant of the equal protection of the laws, in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States. (6) The court erred in rejecting evidence offered to show the amount of sewer bills issued against the land in question prior to the issue of the bills in suit, also in rejecting evidence offered to show that in other cases Kansas City had established sewer districts comprised only of a cemetery. This evidence was competent on the question of the reasonableness of the proceedings as they affected the land in question.

Fyke & Snider for respondent.

(1) The question of benefits is a question peculiarly within the province of the city council. Keith v. Bingham, 100 Mo. 306; State ex rel. v. Schweickardt, 109 Mo. 511; Heman v. Allen, 156 Mo. 543; Johnson v. Duer, 115 Mo. 376; Heman v. Schulte, 166

Mullins v. Cemetery Assn.

Mo. 417; Prior v. Construction Co., 170 Mo. 451; Corrigan v. Kansas City, 211 Mo. 649. (2) It is claimed by the learned counsel for the defendant that the establishment of the sewer district by ordinance, and the ordinance providing for the construction of District Sewer in Sewer District 218 without notice to the defendant, violate the provisions of the Constitution of the State of Missouri and of the United States. By a long line of decisions of the Supreme Court of Missouri such proceedings have been held valid and not in violation of any constitutional provision of the State or of the United States. Kansas City v. Huling, 87 Mo. 207; Mining Cọ. v. Joplin, 124 Mo. 138; Bank v. Carswell, 126 Mo. 444; Moberly v. Hogan, 131 Mo. 23; Heman v. Schulte, 166 Mo. 414; Asphalt Co. v. French, 158 Mo. 552; Davidson v. New Orleans, 96 U. S. 97; State ex rel. v. Seehorn, 246 Mo. 584. Under the city charter the defendant is not denied due process of law. No notice of the ordinance creating the sewer tax was necessary, neither was any notice of the ordinance for the construction of the sewer necessary. The charter provides that, in any action on a special tax bill the defendant may plead and prove that the work was not done in a workmanlike manner, and may reduce the bill if such fact be established. The lien against his property cannot be enforced except by an action in court of which the property owner must have notice; therefore under all decisions he has due process of law. (3) The suggestion that two tax bills should have been issued, because defendant has different interests in different parts of the ground is without merit. Parsons v. Grand Rapids, 141 Mich. 467.

ROY, C.-Plaintiff recovered judgment on special tax bills for sewer construction. The defendant has appealed. This is the third appeal. in the case. [See: 239 Mo. 681 and 259 Mo. 142.]

Mullins v. Cemetery Assn.

The petition is in two counts, the first being based on a tax bill issued October 12, 1904, for $17,598.28, and the second on a tax bill issued September 1, 1905, for $1,531.71. Both bills bear interest, in case of default, from date, at ten per cent.

Sewer District No. 218, in which the work was done, was established by ordinance on August 2, 1901. It is the largest in the city, containing about 407 acres. It is over a mile and a half long north-andsouth, and nearly three-fourths of a mile wide in the middle. The land slopes from the east and west sides to the middle line, and there is a general incline to the north. The cemetery is composed of a square sixteenth of a section, except four acres belonging to the Home of the Sisters of the Good Shepherd in the northwest corner, and excepting such part as may be in the streets on the east, south and west sides of it, the cemetery proper containing about thirtyfour acres. The evidence on the point is not clear, but tends to show that the most of the surface water of the cemetery runs to the west, gathering consid-· erably towards the part just south of the Home of the Good Shepherd. When unrestrained it passes onto and over the adjoining land. To what extent such surface water flows northward onto adjoining land is not shown.

The tax bills in controversy were issued for the construction of lateral sewers, some of which with manholes and catch basins therein, extend along the south and west sides of the cemetery and along the north fourth of the east side. There is no street along the north side; but there are three streets and four alleys extending from the north and terminating in culs-de-sac at the cemetery line. Sewers were placed in those alleys, with manholes in each close to such line. None of those sewers were laid in the cemetery grounds. No openings in the sewer pipes

Mullins v. Cemetery Assn.

were made on the sides next the cemetery for house connections, but the evidence shows that such openings are often made by the plumbers when the connections are made.

In grading the street on the west a ten-foot fill was made near the northwest corner of the cemetery. The grading contractor placed a ten-inch pipe so as to lead the water from the cemetery into the manhole at that point, thus preventing the formation of a pond. There are two waterclosets in the defendant's grounds, neither of which connects with the sewers. The defendant has an eight-inch pipe about 400 feet long laid in the cemetery for the purpose of drawing the water towards the west.

The

The cemetery's existence began in 1877. corporation is a charitable one and has no capital stock. About half the land in the cemetery had been disposed of in lots to purchasers for burial purposes prior to 1904. There had been about 9,000 interments, the number being about 15,000 at the time of the last trial. The lots sell at from fifty-five to seventy cents a square foot. The by-laws of defendant provide that one-third of the money received for lots sold shall constitute a maintenance fund to be loaned at interest, the income to be used in caring for the cemetery. The evidence shows that the land in that vicinity, for other than cemetery purposes, is worth from $1,250 to $5,000 an acre. Witnesses both for plaintiff and defendant testified that the location of the cemetery affected the value of the land in the vicinity, but they did not say whether it enhanced or depreciated it. The defendant offered to prove that two other cemeteries in Kansas City had each been made a separate sewer district, but the evidence was excluded. The trial court also excluded evidence offered by defendant to show that two other special tax bills for the construc

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