Fruin-Bambrick Construction Company v. St. Louis Shovel Company

• Decision Date: 13 April 1908
• Citation: 111 S.W. 86,211 Mo. 524
• Parties: FRUIN-BAMBRICK CONSTRUCTION COMPANY v. ST. LOUIS SHOVEL COMPANY, Appellant
• Court: Missouri Supreme Court

111 S.W. 86

211 Mo. 524

FRUIN-BAMBRICK CONSTRUCTION COMPANY v. ST. LOUIS SHOVEL COMPANY, Appellant

Supreme Court of Missouri, First Division

April 13, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Affirmed.

Powell & Zumbalen for appellant.

(1) (a) The provisions of the amended charter making three-fourths of the cost of street improvements a charge upon all the property in a district defined and established according to certain general rules therein laid down, are to be construed in the light of the general principles underlying and limiting the power to levy special taxes for local improvements. Newby v. Platte County, 25 Mo. 271; Kansas City v. Bacon, 157 Mo. 463; Kansas City v. Baird, 98 Mo. 215; 2 Dillon's Mun. Corp. (4 Ed.) sec. 761. (b) By the phrase "parallel or converging street," as used in said provisions, is meant a parallel or converging street not over 600 feet distant from the street to be improved, and which parallels or converges to the street to be improved for the entire length of the improvement. Asphalt & Gran. Const. Co. v Haeussler, 100 S.W. 14; Louisville v. Asphalt Co., 102 S.W. 806. (2) Said charter provisions, as construed by the lower court, are in violation of the first section of the fourteenth amendment to the Federal Constitution in that they deprive defendant of its property without due process of law, and deny to defendant and its property the equal protection of the laws. Norwood v. Baker, 172 U.S. 269; Spencer v. Merchant, 125 U.S. 345; Davidson v. New Orleans, 96 U.S. 97; Hagar v. Reclamation District, 111 U.S. 701; Walston v. Nevin, 128 U.S. 578; Construction Co. v. Haeussler, 100 S.W. 14; 2 Dillon, Mun. Corp. (4 Ed.), sec. 761.

Hamilton Grover for respondent.

(1) It is not necessary under section 14 of article 6 of the charter, that the street parallel to the street to be improved must necessarily be the next parallel street throughout the whole length of the improvement to be made, but the district line must deflect accordingly as the street to be improved is paralleled its whole length or partly by one street and partly by another. Sec. 14, art. 6, amended charter; Collier Estate v. Western Paving & Supply Co., 180 Mo. 362. (2) It is not necessary that the next parallel or converging street, within the meaning of section 14 of article 6, should be within 600 feet of the street to be improved, but the words "next parallel or converging street" mean the next street which parallels or converges to the street to be improved, although said next parallel or converging street may be more or less than 600 feet from the street to be improved. Sec. 14, art. 6, amended charter; Collier Estate v. Western Paving & Supply Co., 180 Mo. 362. (3) Section 14 of article 6 does not violate the "equal protection of the laws" clause of the fourteenth amendment to the Constitution of the United States. Collier Estate v. Western Paving & Supply Co., 180 Mo. 362; Meier v. St. Louis, 180 Mo. 391; Cotting v. Godard, 183 U.S. 79; Bell's Gap R. Co. v. Pennsylvania, 134 U.S. 232; Bank v. Pa., 167 U.S. 461; Davidson v. New Orleans, 96 U.S. 97; Ins. Co. v. Connecticut, 185 U.S. 364; Giozza v. Tiernan, 148 U.S. 657; Henderson Bridge Co. v. Henderson, 173 U.S. 616; Walton v. Nevin, 128 U.S. 578; Spencer v. Merchant, 125 U.S. 337; Pryor v. Construction Co., 170 Mo. 439; Cooley on Taxation (3 Ed.), 254; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; French v. Barber Asphalt Pav. Co., 181 U.S. 345. (4) Section 14 of article 6, of the amended charter does not violate the "due process of law" clause of the fourteenth amendment to the Constitution of the United States. Meier v. St. Louis, 180 Mo. 391; Pryor v. Construction Co., 170 Mo. 439; Davidson v. New Orleans, 96 U.S. 97; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; French v. Barber Asphalt Pav. Co., 181 U.S. 345.

OPINION

GRAVES, J.

The statement of the issues of this case is so succinctly made by learned counsel for the respondent, that we borrow his language as far as it goes, thus:

"This is a suit on a special tax bill issued by the city of St. Louis for the proportionate cost of paving Sarah street, a thoroughfare running north and south in said city. The respondent is the contractor who did the work and the appellant is the owner of the property against which the tax bill is issued. No question is involved as to the passage of the ordinances, letting of the contract, doing of the work, and the issuance of the tax bill to the respondent. The sole issues grow out of the establishment of the taxing district under section 14, article 6, of the St. Louis charter. The taxing district was established by drawing a line midway between the street to be improved and the next parallel or converging street, without reference to whether or not the next parallel street was within 600 feet of the street to be improved, and without reference to whether or not the next parallel street was parallel to the street to be improved the whole length of the improvement. The appellant claims that the district established in this way is erroneous, on the theory that for a street to be the next parallel street within the meaning of the St. Louis charter, it must be the next street which parallels the street to be improved the whole length of the improvement, and upon the further theory that for the street to be the next parallel street within the meaning of the St. Louis charter, it must be within 600 feet of the street to be improved.

"The appellant further contends that section 14, article 6, of the charter, otherwise construed, would violate that clause of section 1 of the Fourteenth Amendment to the Constitution of the United States which prohibits a State from denying to any person within its jurisdiction the 'equal protection of the laws.'

"The lower court held that the district as established by the city authorities was properly laid out and that it was not necessary that a street to be a parallel street should be the next street parallel to the improvement the whole length of the improvement, nor that it should be within 600 feet of the street to be improved. The lower court further held that the charter provision was not in violation of the 'equal protection' clause of the Fourteenth Amendment to the Federal Constitution.

"Judgment was entered for the respondent on the special tax bill, from which judgment, after the usual motions, defendant has appealed to this court."

The pertinent portions of the city charter involved, section 14, article 6, are as follows:

"Special taxes for the improvement of streets, avenues and public highways shall be levied and assessed as follows:

"The total cost . . . shall be ascertained and one-fourth thereof shall be levied and assessed upon all property fronting upon or adjoining the improvements, 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 district 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 either side of the street to be improved, which line shall be the boundary of the district, except as hereinafter provided, viz.:

"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 nearest boundary line of the lot is less than 25 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 the 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 lands lying between the street to be improved and the district lines established as above specified, shall constitute the district aforesaid."

The property of the defendant did not abut Sarah street, the street which was improved, but was 253 feet or more to the east thereof. Counsel for appellant correctly describes the metes and bounds of the district thus:

"On the eastern side of said Sarah street between Duncan avenue and Clayton avenue the district line was drawn midway between said Sarah street and Vandeventer avenue, and at a distance of 731 feet, 10 inches, from said Sarah street in blocks 2585 and 3952, so as to include the whole of defendant's said property, and in blocks 2582, 3960 and 3963 at a distance of 601 feet 5 1/2 inches, or...