Jennings Heights Land & Improvement Co. v. City of St. Louis
| Decision Date | 02 April 1914 |
| Parties | JENNINGS HEIGHTS LAND & IMPROVEMENT COMPANY, Appellant, v. CITY OF ST. LOUIS et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.
STATEMENT.
Plaintiff owns lot number 7, city block number 5949, located in Baden Sewer District No. 1, laid out by the ordinance number city of St. Louis. The watershed drained by the district sewer constructed under this ordinance embraces 2266 acres. Of this, 938 acres lie outside of the city limits, and 1338 acres are within the city. The outlying land and 583 acres adjacent to it, and within the western limits of the city are drained by the district sewer in question. Just east of that, a second section embracing 356 acres lying in the city and running through Calvary cemetery, is drained by public sewer. Just east of this section are 399 acres also drained by a public sewer, which empties into the Mississippi River. The last two sections drained by the two public sewers were constructed and paid for by the city. These are the largest and most expensive, for they are built so as to drain all the flow from the west as well as the lateral drains, and to carry off the rainfall. The first section, wherein the district sewer was constructed by the defendant contractor was built so as to carry off the water of the south branch of Gingrass Creek, a small stream sometimes dry, which collected water flowing from the outlying lands as well as the drainage of the section of the city through which it runs, until it united with another fork and both carried off through the public sewers emptying into the Mississippi.
These three sewers were constructed under ordinances duly enacted by the city of St. Louis, which laid off their respective districts and provided for their construction, and provided for the issuance of tax bills against the property-owners in the district where Baden sewer district was established. Tax bill number 12118 for $ 80.14 was issued to the defendant contractor against the property of plaintiff in accordance with the benefits assessed to it. Plaintiff brings this action, accompanied by a tender of $ 60 paid into the court to cancel said tax bill on the ground that it embraced an overcharge against its property and that the ordinance under which it was issued is void for the reason that the city had no charter power to enact it; and that it was enacted in consideration of a fraudulent agreement between the city and the cemetery association through whose grounds one of the public sewers is laid. The city of St. Louis, the contractor who built the sewers in the district where the plaintiff's property lies, and a trust company which holds some of the tax bills, are made parties defendant. All the defendants answer by general denial. After hearing the evidence adduced by the plaintiff, the trial court dismissed its petition and it duly appealed to this court.
The errors assigned by the plaintiff will be considered in connection with the relevant evidence.
Affirmed.
Christy M. Farrar for appellant.
(1) An ordinance of a municipal corporation may be declared void by the courts, as being unreasonable, fraudulent, arbitrary or oppressive. City v. Hyde, 196 Mo. 498; Hannibal v. Telephone Co., 31 Mo.App. 23; Corrigan v. Gates, 68 Mo. 541; Ligare v. Chicago, 139 Ill. 46; 2 Dillon on Municipal Corporations (5 Ed.), secs. 580, 778, 1578, note p. 2779; State ex rel. v. Gates, 190 Mo. 540. (2) Where the action of a Legislature is manifestly arbitrary or the assessment palpably unjust and oppressive, the wrong must always be open to correction. Norwood v. Baker, 172 U.S. 269; French v. Asphalt Co., 181 U.S. 324; 2 Cooley on Taxation (3 Ed.), pp. 1256-7-8. Special benefits actually received is the only principle on which special tax assessments can justly rest. Clinton v. Henry County, 115 Mo. 569; Neenan v. Smith, 50 Mo. 526; 4 Dillon on Mun. Corp. (5 Ed.), sec. 1443, pars. 3-4-8. The cost of a local improvement ought to be assessed on particular property only to the extent that it is specially and peculiarly benefited, and since the expense beyond that is benefit to the municipality at large, it ought to be borne by the general treasury. Any other rule is unequal, arbitrary and oppressive. Chouteau v. Leffiingwell, 54 Mo. 474; Ins. Co. v. Preston, 71 F. 817; 4 Dillon on Mun. Corp. (5 Ed.), sec. 1443, pars. 3-4-8, and sec. 1437; Hammet v. Philadelphia, 65 Pa. 154; Tidewater Co. v. Coster, 18 N.J.Eq. 529; 2 Cooley on Taxation (3 Ed.), p. 1255; 1 Hare on Const. Law, pp. 314-315. It is generally recognized and adopted as a rule by many legislatures and courts that in assessing the benefits of a trunk sewer, the cost of supplying local drainage for the district, is the measure of benefits to the district and the excess cost necessary to drain lands outside of the district is the public or general benefits. 4 Dillon on Mun. Corp., sec. 1460 (5 Ed.), p. 2619, note; Beechwood Ave. Sewer, 179 Pa. 490; Park Ave. Sewers, 169 Pa. 433; 2 Beach on Pub. Corp., sec. 1092; Witman v. Reading, 169 Pa. 375; Gray v. Boston, 139 Mass. 328; Alley v. Lebanon, 146 Ind. 125; Toledo v. Ford, 59 N.E. 779; McMakin v. Cincinnati, 1 Ohio Dec. 141. Any increase of cost in a sewer due to the fact that it drains other property, which cannot be included in the assessment, is unequal and invalid. Eyerman v. Blakely, 78 Mo. 151; South Highland Co. v. Kansas City, 172 Mo. 531; Page & Jones on Taxation by Assessment, secs. 563, 658; State ex rel. v. Union, 53 N. J. L. 67; Bayonne v. Morris, 61 N. J. L. 127; Boyden v. Battlebro, 65 Vt. 504; Hanscom v. Omaha, 11 Neb. 43. (3) Any consideration, other than the public good, influencing the legislative discretion of a municipal government is an abuse of such discretion, and a fraud on the law and is contrary to public policy. Dillon on Mun. Corp. (5 Ed.), secs. 245, 792; Gurnsey v. Edwards, 26 N.H. 229; Smith v. Conway, 17 N.H. 586; Pepin Co. v. Puindle, 61 Wis. 310; Bill v. Elting, 29 Kan. 397; Howard v. First Church, 18 Md. 451; Maguire v. Smock, 42 Ind. 1; In re First Street, 66 Mich. 42; Commonwealth v. Cambridge, 7 Mass. 567; Commonwealth v. Samin, 19 Mass. 547; Townsend v. Hoyle, 20 Conn. 1. (4) An agreement on the part of a city to exempt, omit or relieve property from payment of special taxes for improvements is void. Vrana v. St. Louis, 164 Mo. 146; Ratcliffe v. Duncan, 130 Mo.App. 695; State v. Railway, 75 Mo. 208; Masters v. Portland, 24 Ore. 161; Fairbanks v. Fitchburg, 132 Mass. 42. And the omission of such property from taxation vitiates the tax bills and whole proceedings. 4 Cooley on Taxation (3 Ed.), chap. 6, p. 382; Meketchnie V. Co. v. Cavandaniga, 44 N.Y.S. 317, affirmed 162 N.Y. 631; Vandeventer v. Long Island, 139 N.Y. 139; Green Bay & M. Co. v. Centagamin, 76 Wis. 587; Chicago v. Baer, 41 Ill. 306; 1 Page & Jones on Taxation by Assessment, secs. 639, 616; Weeks v. Milwaukee, 10 Wis. 263. Ordinances fair on their face, passed in pursuance of an illegal purpose or agreement are void, and parol evidence may be used to prove same. City v. Hyde, 196 Mo. 498; State ex rel. v. Gates, 190 Mo. 540.
Charles W. Bates, William E. Baird and Truman P. Young for respondents.
(1) The charter of the city of St. Louis was enacted by the voters of the city under authority of the Constitution, and is a public law of which the courts take judicial notice, and has all the force and effect of an act of the General Assembly of the State. Constitution, art. 9, secs. 20-25; St. Louis v Lang, 131 Mo. 420; St. Louis v. Fischer, 167 Mo. 660; Meier v. St. Louis, 180 Mo. 409. (2) The Municipal Assembly having express charter power to build district sewers, determine the class of sewers to be built, and establish taxing districts within which to assess property for the payment of the cost of such sewers, the passage of the ordinances for those purposes upon the recommendation of the Board of Public Improvements, as provided by the charter, is conclusive determination of those questions at least in the absence of fraud or imposition. These are legislative and not judicial questions. Prior v. Construction Co., 170 Mo. 439; Johnson v. Duer, 115 Mo. 376; Asphalt Co. v. French, 158 Mo. 534; Heman v. Allen, 156 Mo. 543; Heman v. Schulte, 166 Mo. 417; McGehee v. Walsh, 249 Mo. 266; State ex rel. v. Schweickhart, 109 Mo. 511; Skinker v. Heman, 148 Mo. 355; Kansas City v. Richards, 34 Mo.App. 521. (b) The same favorable presumptions as to reasonableness and validity attach to ordinances passed in the exercise of express charter power as to acts of the Legislature. St. Louis v. Fischer, 167 Mo. 663; Prior v. Construction Co., 170 Mo. 439; Skinker v. Heman, 148 Mo. 349; State ex rel. v. Schweickhart, 109 Mo. 511; Morse v. West Port, 110 Mo. 508. The special tax bills issued in payment for the cost of a public improvement is prima-facie evidence of the validity of all acts leading up to its issuance. Halsey v. Richardson, 139 Mo.App. 157; Michel v. Taylor, 143 Mo.App. 683; Granite Co. v. McManus, 144 Mo.App. 593. The attack on the special tax bill is based on the invalidity of the sewer ordinances and the ordinances being within the express power of the city to enact the burden is on plaintiff to show by extrinsic matter the invalidity of the ordinances. (3) If the propriety of interference by the courts were unquestioned, nevertheless the ordinances providing for the sewers in the watershed under consideration were neither unreasonable, oppressive nor subversive of the rights of the plaintiff, and cannot be held void on any such ground. Prior v. Construction Co., 170 Mo. 439; Joseph v. Farrel, 106 Mo. 443; Glasgow v. St. Louis, 107 Mo. 198; Morse v. Westport, 136 Mo. 276; Skinker v. Heman, 148 Mo. 356; Heman v....
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