Field v. Kansas City

YALLIANT, J.

— 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, of 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 of 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.

Gcmtt, C. J., Lamm and Fox, JJ., concur; Burgess, Graves and Woodson, JJ., dissent.