Russell v. Adkins

Philips, P. J. This is a petition for an injunction to restrain the defendants from collecting certain special tax bills against the real estate of plaintiffs, on the — 611 — ground that the same are illegal, and tend to cast a cloud upon plaintiffs’ titles. The tax bills were issued by Kansas City for certain work done in grading Summit street in said city, and putting a culvert therein. The gravamen of the complaint is, that the tax bills include, unlawfully, the expense of constructing a culvert in said street, incident to the grading. The court dismissed the bill; and the plaintiffs prosecute this appeal. Two principal questions are presented for determination : (1) As to the power of the city to construct a culvert, as an incident to the grading and improvement óf its streets, at the expense of private property owners ; and, (2) if such power exists, was the culvert in question of - the character authorized by the charter to be built at the expense of the private property owner % I. It is conceded that municipal corporations in the exercise of the taxing power, incident to city improvements, can impose such special tax only under express authority therefor. Any reasonable doubt as to the existence of such power must be solved in favor of the private citizen. Article 8, of the charter in question, contains the following provisions: “Section 1. The common council shall have power to cause to be graded, constructed, re-construct, paved, or otherwise improved and repaired, all streets, sidewalks, alleys and public highways or parts thereof, within the city, at such time, to .such extent, and of such dimensions, and with such materials, and in such manner and under such regulations as shall be provided by ordinance; and all ordinances and contracts for such work shall specify how the work shall be paid for; and, in case payment is to be made in special tax bills, the city shall in no event, nor in any manner whatever be liable for or on account of the work. Provided, however, that no street, avenue, alley, or public highway or any part thereof shall be — 612 — graded, constructed, re-constructed, paved or macadamized at the expense of the property holders owning the property fronting on such street, avenue, alley or public highway, unless a majority of the real estate owners in front feet on such street, avenue, alley or public highway, or the part thereof proposed to be-graded, constructed, re-constructed, paved or macadamized, and are residents of the City of Kansas, shall petition the common council to have such street, avenue,, alley or public highway graded, constructed, re-constructed, paved or macadamized.” “ Section 3. The cost of all work mentioned in the last section, except as otherwise provided in this article, shall be apportioned and paid as follows, namely: The cost of all work on any sidewalk including curbing and guttering, along side thereof, and of all work on any alley shall be charged as a special tax upon the adjoining land according to the frontage thereof on the sidewalk or alley; the cost of all work on streets, avenues and highways, or any part thereof, except as last aforesaid, shall be charged as a special tax on the land on both'sides of and adjoining the street, avenue or highway, or any part thereof, except, however, that the-cost of grading any street, avenue or highway exclusive of the grading of the sidewalks thereon, shall be charged as a special tax on all the property on both sides of such street, avenue or highway, or part thereof, graded within the following limits, namely: * * *” Section 7, inter alia, provides, that: “The work done in constructing, partially or wholly, any street or avenue, may be protected from surface water by temporary drains or culverts put in under the direction of the city engineer, or other officer in charge or superintending the work, or otherwise, as provided by ordinance ; and the same may be closed, removed, or altered at will, and the city shall not be liable for damage resulting to private property from insufficiency or — 613 — want of repair of such drains or culverts, or in respect thereof in any way * * *.” Section 8 provides how such improvement shall be petitioned for by the property owners, ordered, etc. I am unable to give consent to the proposition contended for by the learned counsel for appellants, that inasmuch as the power to construct temporary culverts is especially named in said section 7, it excludes the idea that such power was intended by the general language of the preceding sections, and that the sole object of the provision in said section 7 was to relieve the city from the burden of keeping open and in repair such work after it had been constructed at the public •expense. The first section in general terms confers the power .on the city to cause to be graded, or otherwise improved, the streets arid alleys and public highways. It ex-' pressly authorizes the council to so grade and improve “to such extent, and of such dimensions, and with such material, and in such manner, and under , such regulations, as shall be provided by ordinance; and all ordinances and contracts shall specify how such work shall •be paid for.” Section 2 provides for the apportionment of the tax ■among the property owners. Section 7 follows this up with details, by directing that “the work done in constructing any street may be protected from surface water by temporary drains and culverts, put in under the direction of the engineer.” The succeeding clause ¡of this section, providing for tax bills against the city, payable out of the general fund, where the city owns in fee lots or parcels of lands liable for work, clearly enough indicates the purpose to carry into specific detail the manner and extent of such improvements. The sections must be taken together as consecutive parts of the entire scheme. It is clear that, as an incident to the grading and improvement of the streets, it was competent for the — 614 — city to impose upon the private land owner the cost of constructing temporary culverts, as a means of protecting the work done in grading and improving the street “from surface water.” The council, section 29, chapter-31 of Revised Ordinances, provided as follows : “ The work done in constructing any street or avenue in whole or in part, may be protected from surface water by temporary drains or culverts put in under the directions of the city engineer at such places, at such time, of such materials and dimensions as he may deem best; and the plan and specifications for grading and other work, shall, as far as practicable, provide for such drains or culverts. The cost of the same,' and of all such drains- and culverts put in under the direction of the city engineer, shall be deemed a part of the cost of the work done under the particular ordinance and contract in the case, and be paid for accordingly.” This ordinance was-as specific in its details as was practicable, in its general application. II. Section 7 provides for the construction only of temporary culverts. , The remaining question, therefore, is, was this culvert temporary or permanent in its character? If it was not a temporary culvert the city had no power to subject plaintiffs’ property to its payment, by special tax bills. The city could not, under the guise-of building a temporary culvert, cast upon the private citizen the burden of constructing a permanent, work. It is obvious, from the scheme of the charter, as well as the evidence at the trial, that it was contemplated the city would construct ultimately a system of sewers-for the drainage of surface water. And as, in the opening and grading of its streets, the work would be exposed to the effects of floods from surface water, as an incident to such improvements in providing against injury to and the destruction of the works by surface water, the burden should be laid upon the adjacent property owners of constructing culverts and drains, of a — 615 — temporary character, until the city should provide a permanent sewer or drain. In the very nature and necessities of the case, the word “temporary,” as applied to such culverts, is a relative term. It must be understood, and extended in its application to the given place, and with a reasonable regard to the probable time when a permanent sewer will be constructed in that locality. The character of the material and workmanship, the dimensions, and the like, of the temporary culvert, must, necessarily, de: pend upon the volume of water likely to seek passage through it, and the probable length of time it must endure the pressure of water and earth until relieved by the completion of the sewer, or other means of escape. What would answer the purpose of a temporary culvert in ,rone place might be wholly inadequate at a different place, and under different conditions. The structure, for the time being, is to be built to answer the object — the protection of “the work done from surface water.” The impracticability of prescribing, by arbitrary enactment, the material and workmanship, and dimensions, for every temporary culvert, adapted to varying circumstances and conditions, was, no doubt, the occasion of the provision that such culverts should be put in under the directions of the engineer, leaving the material and manner of construction to his discretion and judgment. Of course, this discretion is not an arbitrary, or unbridled, one. It is subject to judicial review and restraint; and the courts, for the proper protection of the property rights of the private citizen, should be swift to check such officers in the abuse of such discretion. After all, however, it must be mainly a question of fact, whether or not a given culvert is temporary, in the sense of the charter. It must be determined from all the surrounding facts and circumstances. It occurred to me, in reading — 616 — over the specifications and the testimony of the engineer, that this question of fact might have been placed in better form had the question been asked him directly, to state wherein the manner of construction and material of this culvert differed from that pursued and employed in the construction of a permanent culvert % For, I confess, had the cause been heard by me, I should have had some difficulty in escaping the impression that the character of this work was rather durable and sqb- • stantial, as well as expensive, for a temporary purpose. The evidence of this engineer, however, was, that he regarded the work, as done, essential- to answer the purpose of a temporary culvert at that particular place, as, in his judgment, a less substantial structure would have been unavailing to meet the emergencies likely to come upon it before the construction of any sewer in that part of the city. And there was evidence of experts tending strongly to corroborate his opinion. While there was some countervailing proof, on the part of the plaintiffs, we cannot say, with confidence, that the conclusion reached by the trial judge- was not borne out by the weight of the evidence. The special finding of the court is not, in so many words, that the culvert was a temporary work, in its mode of construction, yet it is in substance. The finding is, “that the material used in the culvert was of a durable and substantial character, and that a culvert of the strength and durability of this one was necessary for the proper protection and construction of the whole work.” While, in a chancery proceeding, our. judgment is not controlled, on appeal, by the conclusions drawn from the evidence by the trial judge, yet the tendency is more in the appellate courts, on disputed facts and opposing testimony, to defer much to the conclusions of the trial court. The trial judge hears all the evidence ; he knows, generally, the witnesses; he observes their manner; and, from his vantage ground, has a better — 617 — insight into the very substance of the evidence. On' this account, we defer much to his conclusions in a case like this. Chapman v. McIlwrath, 77 Mo. 43; Hodges v. Black, 76 Mo. 537; Royle v. Jones, 78 Mo. 403; Judy v. Farmers', etc., Bank, 81 Mo. 414; Berberett v. City of Edina, 19 Mo. App. 550. Having reached the foregoing conclusion, it is, of course, unnecessary to consider the other question raised .by appellant, whether the tax bills for the culvert, if invalid, and being indistinguishable from the valid portion of the tax, would not render the whole tax void. It follows, the other judges concurring, that the judgment of the circuit court is affirmed.