Heman Construction Co. v. Wabash R. Co.

• Decision Date: 02 July 1907
• Citation: 104 S.W. 67,206 Mo. 172
• Parties: HEMAN CONSTRUCTION CO. v. WABASH R. CO. et al.
• Court: Missouri Supreme Court

104 S.W. 67

206 Mo. 172

HEMAN CONSTRUCTION CO. v. WABASH R. CO. et al.

Supreme Court of Missouri.

July 2, 1907.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — SPECIAL ASSESSMENTS—NATURE.

While a local assessment for a public improvement is not a tax levied for general revenue purposes, within the constitutional provision requiring uniformity of taxation, it is a tax in the sense that taxes are imposed on individual property receiving benefits from such improvements, different from the general benefit enjoyed by the property owner in common with others.

2. SAME—TAXING POWER.

Special assessments for local improvements are a constitutional exercise of the state's taxing power.

3. SAME—PERSONAL LIABILITY.

A special assessment for a local improvement constitutes a lien only on the property assessed, and cannot be made the basis of a personal judgment against the property owner.

4. SAME—PROPERTY SUBJECT TO ASSESSMENT —RAILROAD RIGHT OF WAY.

Under St. Louis Amended City Charter, art. 6, § 14 [Ann. St. 1906, p. 4854], providing that "all the property fronting on or adjoining an improvement shall be subject to a special assessment therefor," property part of a railroad's right of way contained in a special assessment district is subject to assessment.

Lamm and Fox, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the Heman Construction Company against the Wabash Railroad Company and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Hickman P. Rodgers, Hamilton Grover, and Chas. W. Bates, for appellant. Henry W. Blodgett, for respondents.

BURGESS, J.

This is a suit on a special tax bill, for street improvement, issued by the city of St. Louis in favor of the plaintiff against real property in said city owned in fee by the defendant railroad company, and upon which the other defendants in the case hold incumbrances by way of deeds of trust, part of which property is used by said defendant railroad company as part of its right of way over which it operates trains. The origin of the special tax bill was the enactment of an ordinance by the municipal assembly of the city of St. Louis providing for the paving of Audubon avenue with vitrified brick, between Taylor and Euclid avenues, in said city. The petition is in the usual form for the enforcement of a special tax bill issued by the city of St. Louis for proportionate cost of construction of a street adjacent to the property of the defendant railroad company. It alleges the incorporation of the various defendants, their interests in the property, which is fully described, the particulars of the tax bill, notice of the issuance thereof, and concludes with prayer for judgment for the amount of the bill, with interest and costs, and that the same be declared a special lien against the real estate described. The amended answer of the defendant railroad company, and of all the other defendants answering, sets forth the defenses: First, general denial; second, that the pretended assessment violates the Constitution and laws of Missouri and of the United States; third, exemption from assessment; fourth, that the land assessed is exempt because a part of a right of way, and therefore a public highway; fifth, exemption from said assessment, and any lien claimed thereunder, as a right, privilege, title, and immunity guarantied under the Constitution and laws of Missouri and of the United States and the charter of the city of St. Louis. It was admitted by counsel that the special tax bill sued on, No. 19,590, dated November 7, 1903, and which was introduced in evidence without objection, was signed by the proper officers of the city of St. Louis, and that said tax bill remains unpaid; that notice of issuance of the said tax bill was duly given to defendants by plaintiff, and that on the 5th day of April, 1904, defendant, the Wabash Railroad Company, was duly served with notice to the effect that, owing to its failure to pay the first installment of said tax bill within the time provided by law, plaintiff, as holder of said bill, had exercised its option and declared the entire bill to be immediately due and collectible. The evidence shows that the main line of the Wabash Railroad, on which its trains pass eastward and westward, runs on and along the length of the strip of land in question, but that a portion of same, fronting 25 feet on Euclid avenue and extending eastwardly between parallel lines at least 250 feet, had no tracks upon it at the time of the assessment and trial. Defendant offered evidence showing that it had paid certain special tax bills arising out of the same street improvements, and which were assessed against its ground fronting Euclid and Audubon avenues, laid off and platted as lots, and upon which no railroad tracks were laid, and which was not used for railroad purposes. The cause was tried without a jury. At the conclusion of the evidence, plaintiff asked the court to declare the law as follows: "The court, sitting as a jury, declares the law to be that the special tax bill offered and received in evidence makes a prima facie case for plaintiff, and that, it being admitted that defendants are the owners in fee of the property described in said tax bill, the mere fact that railroad tracks are laid on portions of said ground and constitute a part of the main line of the Wabash Railway Company between St. Louis and Kansas City is no defense to plaintiff's cause of action;" which requested declaration of law the court refused to give, and plaintiff duly excepted. At the instance of defendants, the court declared the law as follows: "The court gives, at the request of defendants, the instruction that, under the pleadings and all evidence, plaintiff is not entitled to recover;" to the giving of which declaration of law plaintiff duly excepted. At the same term of court judgment was rendered against plaintiff and in favor of defendants for costs, from which judgment plaintiff, after filing an unsuccessful motion for a new trial, appealed to this court. Section 5, art. 10, Const. Mo., provides: "All railroad corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on the real and personal property owned or used by them, and on their gross earnings, their net earnings, their franchises and their capital stock."

While a distinction is made between local assessments and taxes levied for general revenue purposes, in that an assessment for a local improvement is not a tax within the meaning of the constitutional provision requiring uniformity of taxation, it is in a sense a tax, not, however, for the purpose of sustaining the government, but imposed upon individual property upon the theory that such property receives a special benefit different from the general one which the owner enjoys in common with others; in other words, an assessment for benefits. That portion of section 14, art. 6, of the amended charter of the city of St. Louis, under which the assessment in this case was made, is as follows: "Special taxes for the improvements of streets, avenues and public highways shall be levied and assessed as follows: The total cost of grading and preparing the roadbed for the superstructure, placing foundation, curbing, guttering, roadway paving and crosswalks for the street embraced in the improvement, including all intersections of streets and alleys, shall be ascertained and one-fourth thereof shall be levied and assessed upon all the property fronting upon or adjoining the improvement, in the proportion that the frontage of each lot so fronting or adjoining bears to the total aggregate of frontage of all lots or parcels of ground fronting upon or adjoining the improvement, and the remaining three-fourths of the cost so ascertained shall be levied and assessed as a special tax upon all the property in the district to be defined and bounded as hereinafter provided, in the proportion that the area of each lot or parcel of ground or the part of such parcel of ground lying within the district bears to the total area of the district, exclusive of streets and alleys. The districts herein referred to shall be established as follows: A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, namely: If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. If the line drawn midway as above described would divide any lot lengthwise or approximately lengthwise, and the average distance from the midway line so drawn to the nearer boundary line of the lot is less than twenty-five feet, the district line shall in such case diverge to and follow the said nearer boundary line. If there is no parallel or converging street on either side of the street to be improved, the district line shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located. Provided, that if any property in a district established as herein provided is not liable to special assessment, the city shall pay the proportion of cost of the improvement which would have been assessed against such property. All of the property in the lots, blocks or tracts of land lying between the street to be improved and the district lines established as above specified, shall constitute the district aforesaid." It will be noted that ...