188 S.W. 83 (Mo. 1916), Albers v. City of St. Louis
| Judge | BROWN, C. Railey, C., concurs. |
| Parties | FRANK ALBERS, Appellant, v. CITY OF ST. LOUIS |
| Docket Number | . |
| Date | 03 July 1916 |
| Court | Missouri Supreme Court |
| Citation | 188 S.W. 83,268 Mo. 349 |
Page 83
Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm, Judge.
Reversed and remanded.
(1) "A person injuriously affected by an ordinance may show that its passage was obtained by fraud or other unlawful means, or for an unlawful purpose; and the fraud which will invalidate an ordinance is shown by proof of fraud, defined to be the wilful doing of an unlawful act." Kansas City v. Hyde, 196 Mo. 507, 7 L. R. A. (N. S.) 639; State ex rel. v. Gates, 190 Mo. 555; Glasgow v. St. Louis, 107 Mo. 203; McQuillin on Mun. Corps., sec. 379, pp. 833, 835, sec. 2127, pp. 4526, 4527; 21 Am. & Eng. Ency. Law (2 Ed.), p. 978; People ex rel. v. Creiger, 138 Ill. 401. The unlawful act pleaded in the case at bar was the attempted substitution of a benefit district, for the establishment of a boulevard, not recognized by the law; a district different from the benefit district fixed by the city's charter for the boulevard. (2) The city's charter fixed the benefit district for the creation of a boulevard, confining it to lands fronting or bordering thereon. St. Louis Charter, art. 6, sec. 1 (Rombauer's Code, 1912, p. 352). The petition charges that "Kingshighway Northeast" was widened and opened as a boulevard; and therefore no district other than that established by law could lawfully be designated. And no property outside such district fixed by the charter could be deemed to be benefited; and therefore could not be assessed with benefits. St. Louis v. Realty Co., 259 Mo. 136; Railroad v. Portland, 25 Ore. 229. The notice of the city counselor that the commissioners had established a benefit district was, therefore, insufficient and illegal. It attempted to establish a benefit district not authorized by the charter. The designation of an unauthorized benefit district is fatal to the assessments. St. Louis v. Brinckwirth, 204 Mo. 305. (3) The repealing ordinance is void because of the city's fraudulent intent to assess, for what was to be a boulevard in fact, property outside of the boulevard benefit district, on the pretense that the improvement was merely the widening of a street. Repealing the boulevard ordinance containing restrictions as to traffic was not conclusive that the street was not to be a boulevard. There could still be a boulevard without the restrictions prescribed in the boulevard ordinance. St. Louis v. Realty Co., 259 Mo. 135. A false recital in an ordinance is not conclusive. Kansas City v. Hyde, 196 Mo. 513. So also the implication in the repealing ordinance that the increase of width in Bircher Street was merely to widen that highway as a street is not conclusive. It may be shown that this widening was designed by the city to create a boulevard without complying with the boulevard provisions of the charter. The courts will look through any sham. Kansas City v. Hyde, 196 Mo. 513; Gas Co. v. Kansas City, 198 F. 515. And will not tolerate abuses of power. 22 L. R. A. (N. S.) 173; Bennett v. Marion, 106 Iowa 632. (4) If the opening or widening of a proposed street is but a part of a general scheme, the court should know what that scheme is, in order to appreciate the value of the particular street in question. Kansas City v. Hyde, 196 Mo. 505; Kansas City v. Railroad, 230 Mo. 375. (5) If this "Kingshighway Northeast" was not intended to be a boulevard, then the amount of land taken for mere street purposes was excessive. The determination of the amount necessary for that purpose is subject to review by the courts. Bennett v. Marion, 106 Iowa 632; Grafton v. Railroad, 22 L. R. A. (N. S.) 1. (6) The action of the court in the Baker case, approving the report of the commissioners fixes the amount of the tax, "but there is no further judgment." St. Louis v. Brinckwirth, 204 Mo. 298. (7) St. Louis v. Baker was dual in character. (a) As to those defendants whose land was to be taken in the widening, the proceeding was a judicial one. (b) As to those whose land was not taken, but against which assessments were sought to be laid, the proceeding was merely a tax assessment proceeding. This distinction as to the duality of the condemnation provisions of the St. Louis charter runs through many of the recent cases. St. Louis v. Brinckwirth, 204 Mo. 297; St. Louis v. Calhoun, 222 Mo. 53; St. Louis v. Busch, 252 Mo. 220; Jefferson City v. Wells, 263 Mo. 251. (8) Even in those cases where this distinction is not made, the judgment, so-called, as to assessments for benefits is not held to be final as to "the validity and regularity of the proceeding." Eyssell v. St. Louis, 168 Mo. 620; St. Louis v. Ranken, 96 Mo. 497; St. Louis v. Realty Co., 175 Mo. 67. (9) The petition attacks Ordinance 24224 as void, and thereby attacks the jurisdiction of the court in the Baker case, both as to the subject-matter and as to the person. The city virtually begs the question when it urges that the judgment in the Baker case is not subject to collateral attack.
(1) The judgment assessing benefits in the case of City of St. Louis v. James E. Baker, in the circuit court, was a final judgment fixing the benefits chargeable against plaintiff's property, and said judgment is not subject to collateral attack in this proceeding. St. Louis v. Realty Co., 259 Mo. 140; Searcy v. Clay County, 176 Mo. 493. (2) The notice given to the owners of property to be assessed for benefits was sufficient to confer jurisdiction in the Baker case, and property owners within the district were charged with notice thereafter of all proceedings in the case. Eyssell v. St. Louis, 168 Mo. 612; Brinckwirth v. St. Louis, 204 Mo. 313; St. Louis v. Realty Co., 259 Mo. 140; St. Louis v. Calhoun, 222 Mo. 53; 2 Lewis on Eminent Domain (3 Ed.), sec. 585. (3) The repeal of ordinance number 22948, establishing a boulevard, was not in violation of section 1 of article 6 of the city charter. St. Louis v. Christian Brothers College, 257 Mo. 541. (4) The question whether a highway shall be opened as a street or as a boulevard, is a question addressed to the legislative discretion of the city government, and is not subject to judicial review. St. Louis v. Brown, 155 Mo. 555.
OPINION
Page 84
[268 Mo. 354]
This is a suit for the cancellation of certain special tax bills against the plaintiff's land in the city of St. Louis, the apparent lien of which is alleged to be a cloud upon the title. The tax bills were issued against seven parcels of land described in the petition, to the aggregate amount of $ 469.40, and are founded upon a special assessment of benefits to said land in a proceeding for the widening of Bircher Street from Euclid Avenue to Florissant Avenue in said city from 60 feet, its original width, to 200 feet, under ordinances which changed its name to King's Highway Northeast. None of the land fronted or bordered upon said street, which was outside the business district, and upon which there was little commercial traffic.
A general demurrer was sustained to the petition, and the plaintiff declined to plead further. Final judgment for defendant was entered, from which this appeal is taken.
The petition states, in addition to these general facts, that the defendant, by authority of a vote of the people of said city, duly authorized and issued its negotiable bonds in the sum of $ 500,000, to be exclusively devoted to the establishing, opening and construction of King's Highway Boulevard, to meet that portion of the cost and expense which by law the defendant was required to pay, and that the proceeds [268 Mo. 355] of said bonds were paid into the treasury of the city. That thereupon the defendant ordained and passed a certain ordinance numbered 22,948, entitled, "An ordinance to change present Bircher Street from Euclid Avenue to Florissant Avenue into a boulevard, to be known as 'King's Highway Northeast,' and to widen said boulevard, and to regulate the use...
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