Field v. Kansas City

— The facts of this case are like those in Corrigan v. Kansas City, ante, p. 608, except that in this case the plaintiffs’ property is in another park district of Kansas City called Westport Park District. These two cases were argued and submitted together. Like the Corrigan case, this is a suit in equity to enjoin the sale of plaintiffs’ property (or rather to enjoin the delivery of certificates of.purchase) for delinquent park maintenance taxes. The court sustained a demurrer to the plaintiffs’ petition and, they declining to plead further, final judgment was entered against them and from that judgment they have appealed.

The main proposition of appellants in this, as it was in the Corrigan case, is that section 33, article 10, *668of the charter of Kansas City, and the ordinance assessing the park maintenance tax passed under authority of that section, are invalid. All that is said in the opinion in the Corrigan case on that proposition is applicable in this case and there is no necessity for repeating’ it.

But in this case the plaintiffs make one point that was not made in the other case and it deserves our attention.

It is contended that the charter elsewhere provides that the streets of the city may be constructed, reconstructed, improved and repaired at the expense of the property-owners, that is, by special taxbills against the property abutting on the street. In support of that contention various clauses of article 9 of the charter are, quoted. Section 31 of article 10 provides that under certain conditions the park boulevards may be constructed and improved at the expense of the adjoining property and special taxbills issued therefor; then in the closing sentence of that section it is provided “that when any parkway or boulevard has been constructed, paved, guttered and otherwise improved at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the park district in which the same is situated or out of the general park fund.” The plaintiffs ’ property, not fronting on a park boulevard, but on a street in the park district, is taxed to construct the street and maintain it; the property fronting on the boulevard bears no part of the burden of either constructing or maintaining the street, yet the plaintiffs’ property is taxed for maintaining the boulevard, and therein the plaintiffs say they are denied that equal protection of the law that the Fourteenth Amendment guarantees.

If we count a street and a boulevard as the same thing the plaintiffs’ point is well made. But whilst a park boulevard has some of the general characteristics *669of a street, yet there is a difference between them. The boulevard here mentioned is an appurtenance to the park; it is under the control of the parir commissioners and is a part of the park system. In a sense it is a public highway, yet it is so in a restricted sense only. It is not all traffic that may use it as a street is used; it is dedicated rather to pleasure than to work. It possesses characteristics that justify the law-making power of the city government in making a class of park boulevards distinguished from ordinary streets. It is in a sense a part of the park, and therefore the answer ■that has been given by this court to objections of property-owners to having their properties taxed for payment for lands condemned for parks and for maintenance of parks, is an answer to the objection the plaintiffs now make to taxing the property for the maintenance of the park boulevards. If the city has authority to tax property, for park purposes, as distant from the park, as this court has in former cases of this kind, founded on the Kansas City charter, decided that it has, it has authority to levy this maintenance tax. We see no difference in the principle involved.

For the reason above given, as well as for the reasons contained in the opinion in Corrigan v. Kansas City, supra, the judgment is affirmed.

DISSENTING- OPINION.

— This case presents precisely the same questions that are involved in the case of Corrigan v. Kansas City, ante, p. 608, and I dissent from the majority opinion herein for the same reasons stated in my dissenting opinion filed in that case.

This case presents an additional point not presented by the record in that case, and that is this: In *670addition to the section 33 of article 10 of the charter of Kansas City, authorizing the city council to levy the park maintenance tax discussed in the Corrigan case, it also provides in another provision that the streets of the city not fronting upon the boulevard proper, but, however, within the same park and boulevard district, may be constructed, reconstructed, improved and otherwise repaired 'at the expense of the adjacent property-owners. In other words, the first-mentioned provision provides that the park and boulevard proper shall be constructed, improved and maintained by a tax to be assessed against all of the taxable real, estate of the entire district, while the other provides that the cost of constructing, improving and maintaining’ all other streets which are located within the limits of the same park and boulevard district shall be at the expense of the abutting property-owners. Prom those two provisions it is seen that those who front on the boulevard are required to pay only. such portion of the costs of constructing, repairing and maintaining the boulevard as the value of their property bears to the value of all the property of the district, while those who do not front upon the boulevard but do front upon streets and avenues embraced therein nrbst bear the entire cost of the construction and maintenance of the streets upon which they front and must in addition thereto pay their proportional part of the costs of paving, guttering, curbing and otherwise improving and 'maintaining the boulevard, so-called, which, in that regard, is nothing more or less than a street or highway of the city.

This is clearly a violation of the 14th Amendment of the Constitution of the United States. That system of taxation denies the equal protection of the laws to the real estate located in the same district.

The record discloses that these districts are about three miles long and one and a half miles in width; and if we allow ten blocks to the mile, then we have fif*671teen streets paralleling the boulevard in the district, the property abutting upon all of which must not only pay the entire costs of constructing, repairing and maintaining those streets, but also its proportional part of the costs of constructing and maintaining the boulevard, which would, according to that basis, be approximately fifteen-sixteenths thereof, while those fronting on the boulevard would pay only one-sixteenth of the cost of constructing and maintaining- the boulevard, and not a penny for the other streets of the district.

This is clearly a denial of the equal protection of the laws, and the tax so levied, in my judgment, is void, and the charter provision which authorizes such a levy is void and unconstitutional.

I am, therefore, of the opinion that the judgment should he reversed and a judgment entered here declaring the taxes null and void and of no force or effect.