St. Louis Malleable Casting Company v. George C. Prendergast Construction Company
| Decision Date | 06 June 1921 |
| Citation | 231 S.W. 989,288 Mo. 197 |
| Parties | ST. LOUIS MALLEABLE CASTING COMPANY, Appellants, v. GEORGE C. PRENDERGAST CONSTRUCTION COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Affirmed.
Muench Walther & Muench for appellant.
(1) The charter of the City of St. Louis makes no provision for notice or hearing in the establishment of taxing districts for sewers, and no notice was given or hearing had upon the question of benefits in the establishment of the taxing district for Baden District Sewer No. 2. Therefore, the assessment is invalid, being violative of the due process clause of the Federal Constitution. Hamilton on Special Assessments, sec. 145; McQuillin on Municipal Corporations sec. 2074; Page & Jones on Taxation by Assessment, sec. 729; Farnham on Water & Water Rights, sec. 232, p. 1091; Baumann v. Ross, 167 U.S. 549; Embres v. Road Dist., 240 U.S. 242, 257 Mo. 593; Land Co. v. Kansas City, 241 U.S. 419; Land & Stock Co. v. Miller, 170 Mo. 240; McGhee v. Walsh, 249 Mo. 284. (a) The hearing provided for by Section 3 of Article XXII of the charter relates to the character of the improvement and not to the defining of the taxing district. It takes place after the taxing district has been finally established by ordinance. Collier Est. v. Paving & Supply Co., 180 Mo. 390. (b) A local assessment may be made by the Legislature itself without notice or hearing, but when the power is delegated to a municipal body it cannot be exercised without notice to property owners and an opportunity to be heard at some stage of the proceeding. McGehee on Due Process of Law, p. 248. (c) Even if it be conceded that a Legislature may delegate such power to a municipal legislative board, and that such board may exercise the power without notice and opportunity to be heard, yet the Board of Aldermen, in passing the ordinance establishing the taxing district in question, was not acting legislatively. State ex rel. v. Gates, 190 Mo. 540; McKenna v. St. Louis, 6 Mo.App. 320; Parks v. Boston, 8 Pick. (Mass.) 218; State v. Mayer, 34 N. J. L. 445; 2 McQuillin on Mun. Corp. sec. 704. Under the charter the Board of Public Service makes the inquiry into the facts and drafts a bill for the establishment of the taxing district, based upon its finding of facts, and recommends to the Board of Aldermen the adoption of the assessment. The Board of Public Service is a purely administrative board. Kansas City v. Ward, 134 Mo. 172. The Board of Aldermen is given no power under the charter to amend the bill and must either reject or pass it as it comes from the Board of Public Service. It cannot originate an ordinance of this character. American Tobacco Co. v. City, 247 Mo. 374; State ex rel. Belt v. St. Louis, 161 Mo. 371. The taxing district being in fact established by the Board of Public Service, the property owners must be given an opportunity to be heard. The charter making no provision for such hearing and none having been accorded, the ordinance in question is invalid. (d) When the scheme of distribution of an improvement tax is palpably arbitrary and constitutes a plain abuse, it is violative of the Fourteenth Amendment to the Federal Constitution. St. Louis Land Co. v. Kansas City, 241 U.S. 429. (2) Special taxation for local improvements rests on the principle of benefits. McQuillin on Municipal Corps., sec 2018; Construction Co. v. Haeussler, 201 Mo. 400; Gast Realty Co. v. Schneider Granite Co., 240 U.S. 58; Norwood v. Baker, 172 U.S. 269; Page & Jones on Taxation, secs. 549 and 651. (a) Taxes for local benefits should be distributed equally upon all standing in like relations. McQuillin on Municipal Corps., sec. 2021, p. 4339; Gast Realty Co. v. Schneider, 240 U.S. 58; Hanscon v. Omaha, 11 Neb. 37; Masters v. Portland, 24 Ore. 161. (b) The omission to assess the property of the Calvary Cemetery and the "Kuhs" property, both of which are in the natural drainage area, invalidates the assessment. 28 Cyc. 1162; Page & Jones on Taxation, sec. 556, p. 905, sec. 553, p. 897; Masters v. Portland, 24 Ore. 161; Scranton v. Levers, 9 Pa. Dist. 176; Clay v. Grand Rapids, 60 Mich. 451; Brewing Co. v. Trustees, 15 A.D. 139; Stover v. Springfield, 167 Mo.App. 328; Kansas City v. Bascom, 147 Mo. 301; Dyer v. Harrison, 63 Cal. 447; Helm v. Wirtz, 35 Ind.App. 131; Farnham on Water and Water Rights (1904 Ed.) sec. 172, p. 921. (3) The evidence establishes that the drain was made twenty per cent larger than the needs of the taxation district required, so as to take care of the surface water from Calvary Cemetery. There is no principle of taxation which justifies the throwing of the cost of this larger sewer upon the property in the district as defined by the ordinance, and the exclusion from the taxing district of the cemetery property for the benefit of which the size of the sewer was increased. Farnham on Water & Water Rights, sec. 173-d, p. 932; Harrisburg v. Cummings, 6 Pa. Dist. 437; Park Ave. Sewers, 169 Pa. 433; Bayden v. Village, 65 Vt. 504. (4) The agreement to exempt the Kuhs property, in consideration of the granting of the right-of-way for the district sewer and the altering of the Kuhs private sewer system, is invalid. So, also, is the arrangement between the Calvary Cemetery and the city for the exemption of the cemetery property. McQuillin on Municipal Corps., sec. 2063; 28 Cyc. 1134; St. Louis v. Meier, 77 Mo. 13; Bank v. Clark, 252 Mo. 20; Vrana v. St. Louis, 164 Mo. 146; St. Joseph v. Crowther, 142 Mo. 155; McKaine v. Independence, 175 Mo.App. 332; Rider v. Parker-Washington Co., 144 Mo.App. 677; Radkliffe v. Duncan, 130 Mo.App. 695; Brewing Co. v. Trustees, 15 A.D. 146. (5) The ordinance establishing the taxing district in question is arbitrary and results in favoritism to the owners of the properties within the natural drainage area excluded and in oppression upon those whose properties lie within the taxing district. The courts will declare such an unreasonable ordinance void. Dillon on Municipal Corps. (5 Ed.) sec. 592, p. 920; McQuillin on Municipal Corps., sec. 2052, p. 4401; Page & Jones on Taxation, sec. 555; 28 Cyc. 1122; Corrigan v. Gage, 68 Mo. 541; City v. Hyde, 196 Mo. 498; Masters v. City of Portland, 24 Ore. 161; Hanscon v. Omaha, 11 Neb. 44. (6) The fact that Calvary Cemetery and the Kuhs property had private drains is not sufficient to exempt sad property from assessment for the district sewer constructed by the city. Page & Jones, sec. 563, p. 920; City of St. Joseph to use of Gibson v. Owen, 110 Mo. 445. Calvary Cemetery and the Kuhs property are so located that they may be served by the district sewer. They are therefore benefited by the district sewer. Page & Jones on Taxation, sec. 563, p. 917.
Rodgers & Koerner for respondent.
(1) The special tax bill is prima-facie evidence of its validity; and the testimony in the case is not sufficient to overturn it. (2) No notice, or hearing, was necessary in the establishment of the taxing district for the sewer. Meier v. St. Louis, 180 Mo. 409; Heman v. Allen, 156 Mo. 551; Heman v. Schulte, 166 Mo. 417; Embree v. K. C. Road Dist., 240 U.S. 250; Work v. City of Lockport, 28 Hun. 9; 2 Page & Jones on Taxation by Assessment, secs. 728, 743; Williams v. Eggleston, 170 U.S. 304. The hearing had before the Board of Public Service upon due notice, gave full opportunity to property holders to be heard as to, and complain of, any matter which might make it inequitable to construct a sewer as projected in the district as established. (3) The action of the municipal authorities in establishing the sewer district, in the absence of fraud, is conclusive and not subject to review by the courts. Heman v. Allen, 156 Mo. 534; McGhee v. Walsh, 249 Mo. 266. (a) There is no evidence of fraud in this case. On the contrary, there is an express disclaimer thereof. (b) Even had there been fraud, the contractor was no party to it, hence could not be prejudiced by it. A complaint of this sort comes too late after the work is done. Land & Imp. Co. v. St. Louis, 257 Mo. 291; Bank v. Woesten, 147 Mo. 467. (4) The municipal authorities of the City of St. Louis are sole judges of the dimensions of contemplated sewers. Heman v. Allen, 156 Mo. 534. (5) Silent acquiescence with knowledge of the improvement, especially when accompained by acceptance of its benefits, estops the property owner from denying validity of the tax bill. Paving Co. v. Flemming, 251 Mo. 210; Heman v. Ring, 85 Mo.App. 231; Walsh v. Bank, 139 Mo.App. 641; Smith v. Carlow, 114 Mich. 67; Fitzhugh v. Bay City, 109 Mich. 581; Atkinson v. Newton, 169 Mass. 240; Board of Commissioners v. Plotner, 149 Ind. 116; Patterson v. Baumer, 43 Iowa 477; Wright v. Davidson, 181 U.S. 377.
The plaintiff brought this suit in the Circuit Court of the City of St. Louis against the defendant to cancel and set aside a certain tax-bill issued against the property of the former for the construction of Baden Sewer District No. Two, amounting to $ 9,168.86. The trial resulted in a judgment for the defendant and the plaintiff duly appealed the cause to this court.
The petition charged substantially the following facts:
The petition of the plaintiff alleged that the Board of Aldermen of the City of St. Louis, upon the recommendation of the Board of Public Service of the city, adopted an ordinance approved March 22, 1915, establishing a sewer district to be known as "Baden Sewer District No. Two", which ordinance is set out in full in the petition. That thereafter the Board of Aldermen enacted another ordinance, prepared and recommended by the Board of Public Service, for the construction of the sewer in said district, which ordinance was approved July 21, 1915, and under which the Board of...
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