(263 F.) support it. The inspector, who first advanced it, in the next paragraph complained that petitioner "was working and earning a good salary, but never purchased any War Savings Stamps or Liberty Bonds." This and like war references betray some the atmosphere surrounding the proceedings. The writ is granted. BROUGHAM v. KANSAS CITY et al. (District Court, W. D. Missouri, W. D. February 24, 1920.) No. 221. 1. CONSTITUTIONAL LAW 42-DISCRIMINATION BETWEEN RESIDENT OWNERS ON BUSINESS AND RESIDENCE STREETS AS TO REMONSTRANCE AGAINST PAVING CANNOT BE COMPLAINED OF BY NON RESIDENT. That a city charter gives resident owners no right of remonstrance against the paving of business streets, as is given in the case of residence streets, cannot be complained of by a nonresident owner, who is not given any right of remonstrance in either case, even though resident owners testify that they would have remonstrated, if given the opportunity. 2. CONSTITUTIONAL LAW 232, 290 (3)—MUNICIPAL CORPORATIONS 297 (1)— CHARTER NOT AUTHORIZING REMONSTRANCE BY OWNERS AGAINST PAVING NOT UNCONSTITUTIONAL. Kansas City Charter, § 3a, as amended in 1910, invades no rights under the United States Constitution, in authorizing the paving of the streets to which it refers, without giving property owners any right of remonstrance. 3. MUNICIPAL CORPORATIONS ING OF STREETS AS BUSINESS 269 (2)-CHARTER HELD TO AUTHORIZE PAVSTREETS, INDEPENDENT OF THEIR PRESENT Kansas City Charter, § 3a, as amended in 1910, providing a special mode of proceeding when it is proposed to improve a street "as a business street," authorizes the board of public works and city council to improve and pave certain streets as business streets, independently of their strict actual present status as such. 4. EVIDENCE-48-COURT WILL NOT DISREGARD ITS OWN KNOWLEDGE OF CON DITIONS. The court, in determining whether the authorities of Kansas City acted arbitrarily and unreasonably in improving and paving a street as a business street, will not leave out of mind the knowledge of local conditions which it has in common with all other citizens of that city. 5. MUNICIPAL CORPORATIONS 278 (%) -IMPROVING STREET AS BUSINESS STREET NOT ABUSE OF DISCRETION. The board of public works and city council of a city held not to have acted arbitrarily, unreasonably, and oppressively in ordering the paving as a business street of a part of a street, where the part of the street already paved was a business rather than a residential street, and the improvement was a natural extension of that already existing. 6. MUNICIPAL CORPORATIONS 473-ASSESSMENT OF BENEFITS NOT RENDERED VOID BY SPECIAL CASES OF LARGE ASSESSMENTS. In determining whether the cost of paving a street and the tax bill issued therefor were so grossly out of proportion to the resulting benefit and to the value of the property assessed as to make them unreasonable, confiscatory, and void, and to amount to an unlawful taking of the abutting property, the fact that, in the case of certain lots having a large frontage on the street, the assessments were very large, could not affect the proceeding as a whole. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 7. MUNICIPAL CORPORATIONS 484(3)-SALABILITY OF PROPERTY IS NOT TEST OF BENEFITS FROM PAVING. The salability or nonsalability of property assessed for street paving, especially during a time when the real estate market is notoriously dull, is not a true criterion of the benefits to the property from the improvement. 8. MUNICIPAL CORPORATIONS 484 (1)—ASSESSMENT FOR BENEFITS NOT TO BE LIGHTLY SET ASIDE FOR ABSENCE OF BENEFITS. Street paving assessments against abutting property, apparently regular, should not be lightly set aside, because of varying opinions as to the existence of benefits; this being confided to official judgment and discretion. In Equity. Suit by Thomas H. Brougham against Kansas City, Mo., and another. On final hearing. Decree for defendants. W. C. Scarritt, of Kansas City, Mo., for complainant. A. F. Smith, Asst. City Counselor, and Clarence S. Palmer, both of Kansas City, Mo., for respondents. VAN VALKENBURGH, District Judge. This court acquires jurisdiction of this case by reason of diversity of citizenship; the complainant being a citizen and resident of the state of New Mexico, and the owner of certain land within the corporate limits of Kansas City, the same being a part of the northwest quarter of the southeast quarter of section 22, township 49, range 33, in Jackson county, Mo., having a frontage of 1,162.55 feet on the south side of Thirty-Ninth street, between Indiana avenue and Jackson avenue, and a depth of 150 feet therefrom. On or about March 7, 1919, the board of public works of the respondent Kansas City adopted a certain resolution, No. 8486, stating that said Thirty-Ninth street, between said Indiana and Jackson avenues, was used and occupied for business purposes, and unanimously recommended that the same be improved as a business street, and be paved as a business street to the full width thereof, exclusive of sidewalks, with a pavement consisting of a wearing surface of asphaltic concrete not less than 2 inches in thickness, laid upon a Portland cement concrete foundation 6 inches in thickness, except that the center 18 feet of the roadway should consist of a Portland cement concrete pavement 6 inches in thickness, and that the whole of the contract cost of said pavement should be paid in special tax bills, to be issued and charged against the lands abutting on the said part of said street according to the frontage thereof. The usual notice of such a proceeding required by the city charter, was published for 10 days, and in that notice a time and place were fixed for hearing property owners relative to the proposed paving. This hearing was held, and no property owners appeared to oppose the same, nor to make suggestions relative thereto, with the possible exception of complainant herein. The secretary of the board testified that Mr. Brougham appeared and made some suggestion with respect to the laying of gas or water mains, but made no objection to the paving as a whole. This is denied by the complainant, who says he did not hear of the proposed improvement until it was in process of construction. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) On April 11, 1919, a contract was awarded to the Gray Paving & Material Company, as contractor, providing for the paving specified at a contract price of $3.64 per square yard for the asphaltic cement concrete pavement, and $2.85 per square yard for the Portland cement concrete pavement; and subsequently, as provided by law, the common council passed Ordinance No. 35491, authorizing the improvement, and ratifying and confirming the contract therefor, and finding and declaring by a vote of more than two-thirds of the members-elect of each house, to wit, by 30 out of 32 members of both houses, that the street, or part thereof in which proposed improvement was to be made, was used or occupied for business purposes, and that the improvement had been unanimously recommended by the board of public works. The pavement was laid and the work accepted by the city as having been completed according to the terms of the contract, and on or about July 31, 1919, the respondent city issued, in favor of the said contractor, its tax bill No. 26 of that date, assessing and charging against complainant's said land, as its pro rata share of the cost of said work, the sum of $8,374.92, which said tax bill was duly recorded and evidences a first and paramount lien on said property, and was thereafter sold and assigned in due course to the respondent Commerce Trust Company, which now owns and holds the same. Complainant asks that this tax bill be declared illegal, null, and void; that the same be surrendered up and canceled, and the lien thereof be satisfied in full, and the cloud on his title be thereby removed, upon the grounds: (1) That the said part of Thirty-Ninth street was not, at the times referred to, in fact used or occupied for business purposes, and that the declaration to that effect of the board of public works and common council was fraudulent in law and contrary to the rights of the plaintiff. (2) As corollary to this, that under the procedure provided in such specific cases no right of remonstrance was accorded to residence property owners by which a majority might have stayed and deferred the contemplated proceeding. (3) Because the said resolution, ordinance, contract, and the said tax. bill founded thereon, whereby the said roadway was paved at a contract cost of approximately $7.20 per front foot, are unreasonable, confiscatory, illegal, and void, and constitute an unlawful taking of complainant's said property without due process of law, and deprive him of the equal protection of the law, contrary to the Fourteenth Amendment to the Constitution of the United States. This proceeding was instituted under the provisions of section 3a of article 8 of the City Charter of 1908, as amended July 19, 1910. This section, omitting immaterial parts, provides as follows: * * the road * or "In case the proposed improvement consists of paving way of a street or part thereof, as specified in section 3, article VIII, of this charter and it is proposed to improve said street part thereof, as a business street, the procedure therefor shall be as follows: The resolution of the board of public works providing for said work, in addition to the matters required to be stated therein by seetion 3, article VIII, of this charter, may contain a statement that the street or part thereof in which the proposed improvement is to be made is used or occupied for business purposes, and that the improvement is unanimously recommended by the board of public works, then in such case the improvement may proceed regardless of any remonstrance: Provided, each house of the common council shall in the ordinance authorizing the improvement and ratifying, approving and confirming the contract there for, find and declare by a vote of two-thirds of the members-elect of each house that the street, avenue, alley, public highway, or part thereof in which the proposed improvement is to be made is used or occupied for business purposes and that the improvement has been unanimously recommended by the board of public works, and such finding and declaration shall be final and conclusive for all purposes and no special tax bills that may be issued to pay for the work shall be held invalid or affected for the reason that the work for which they may have been issued was not unanimously recommended by the board of public works or that such street, avenue, alley, public highway, or part thereof was not, in fact, used or occupied for business purposes. Except as provided in this section the proceedings for paving the class of streets herein specified shall be the same as provided in article VIII of this charter for paving streets not found and declared to be used for business purposes." Section 3 in the charter of 1908 makes this further provision: * * * "After the adoption of any such resolution the board of public works shall, by order, fix a day upon which a hearing in respect to such improvement shall be had, * and shall cause to be published for ten days in the newspaper a notice directed to the property owners interested in the improvement without naming them, which notice shall recite the substance of the resolution and that a hearing will be had by the said board at their office concerning the proposed improvement, and the date upon which the hearing shall be had. On the date fixed for such hearing any and all property owners interested in such improvement may, by written petition, or otherwise, present their views in respect to the proposed improvement to the said board, and the said board may adjourn the hearing from time to time. After such hearing, if the said board shall determine that it is not for the public interest that the proposed improvement, or a part thereof, be made and paid for, either out of the general fund or by any method of assessment, they shall make an order to that effect, and thereupon the proceeding for the improvement, or part thereof determined against by such order, shall stop and shall not be begun again until the adoption of a new resolution." Also said section 3 provides that if the street to be improved shall not have been found and declared to be used and occupied for business purposes and the resident property owners of the city owning a majority of the front feet of all the lands belonging to such residents. fronting on the street, or part thereof, to be paved, shall file with the board on or before the day fixed for such hearing a remonstrance against such paving, the power of the board to make the improvement shall cease for a period of 6 months from the date of the remonstrance, after the lapse of which period the proceeding may be begun by the adoption of a new resolution. But, again, a new proceeding could be defeated by timely remonstrance. [1] It will thus be seen that in cases of residence streets the right of remonstrance exists on the part of resident owners which may have the effect of suspending the power to make the improvement for a period of 6 months. In the case of a street found and declared to be used and occupied for business purposes, no such right of remonstrance is given, and of this complaint is made. If this were the gist of the (263 F.) controversy, it could be said at the threshold of this discussion that complainant has no standing to invoke this provision of the charter. He does not come within the class whose rights are alleged to be invaded, no member of which is here complaining. Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1044; Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392; Chadwick v. Kelly, 187 U. S. 540, 23 Sup. Ct. 175, 47 L. Ed. 293. In the latter case it is said: "The serious duty of condemning state legislation as unconstitutional and void cannot be thrown upon this court, except at the suit of parties directly and certainly affected thereby." It cannot aid complainant's case that resident owners testify that they would have remonstrated if given an opportunity so to do. Practically all of them say they did not know of the proposed improvement in time for such remonstrance, even though one had been allowed; but it is conceded that the publication giving the notice required by charter, and provided by law, was duly made. The hearing provided by law was fixed and held. No one interested appeared to protest or object in any fashion, however informal or nugatory. Most of the parties heard and knew of the improvement while it was in process. No objection was made nor action taken to stay the work prior to its completion and the issuance of the tax bill thereon. [2] The complainant is and was a nonresident, and was given the right of remonstrance under no form of proceeding for an improvement of this nature. It has been held in numerous cases that this is no invasion of his rights under the Constitution of the United States. "The Legislature, in the exercise of its paramount control of the state, could have authorized the council to have ordered the grading of streets at the expense of property owners without any petition." (And equally without provision for remonstrance.) Buchan v. Broadwell, $8 Mo. 31; Bank v. Clark, 252 Mo. 20, 30, 31, 158 S. W. 597; Field v. Barber Asphalt Paving Co. (D. C.) 117 Fed. 925; Id., 194 U. S. 618–621, 24 Sup. Ct. 784, 48 L. Ed. 1142. In the latter case, Buchan v. Broadwell, supra, is quoted approvingly. But I think the substantial question involved under specifications 1 and 2, as above stated, is whether the part of the street in question was, in effect, used for business purposes, and whether the board of public works and common council, under the charter provisions quoted, had the right so to declare with binding effect upon the property owners, resident and nonresident alike. Section 3a above set out is an amendment to an original provision of the charter of 1908 (article VIII, Charter and Ordinances of Kansas City, 1909, p. 312), which reads as follows: "In case the proposed improvement consists of paving or repaving, macadamizing or remacadamizing as aforesaid, then, in that event, upon the unanimous recommendation of the board of public works, if each house of the common council shall, by ordinance, find and declare by a vote of two-thirds of the members-elect of each house that the street, * * or part thereof, on which the proposed improvement is to be made is used or occupied for business purposes," etc. |