Heman v. Wolff

• Decision Date: 11 December 1888
• Citation: 33 Mo.App. 200
• Parties: AUGUST HEMAN, Respondent, v. MARCUS A. WOLFF, Appellant.
• Court: Missouri Court of Appeals

33 Mo.App. 200

AUGUST HEMAN, Respondent, v. MARCUS A. WOLFF, Appellant.

Court of Appeals of Missouri, St. Louis.

December 11, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

Frank Hicks, for the appellant.

The city charter and the law permits the inclusion within a sewer district of only those lands which are benefited by the system of sewerage to be constructed in said district. The inclusion by ordinance of lands within a sewer district is not conclusive of the question whether such lands are benefited or equally benefited by the system of sewerage to be constructed in such district. It is a principle recognized wherever special taxes or local assessments are upheld, that special benefits to the property assessed, by reason of the local improvement, is the true and only foundation upon which local assessments can rest. 2 Dillon Mun. Corp. [3 Ed.] p 755, sec. 761, par. 3. Our supreme court has repeatedly announced the same doctrine, viz., that local assessments are constitutional only when imposed to pay for local improvements conferring special benefits. Neenan v Smith, 50 Mo. 525; State v. Leffingwell, 54 Mo. 458. It must be concluded upon these general considerations that a necessary limitation upon the power of the council is that the property embraced in the taxing district must be such as is or may possibly be benefited by the improvement. See 2 Dillon Mun. Corp. [3 Ed.] p. 755, sec. 761; Thomas v. Gain, 35 Mich. 155; O'Meara v. Green, 16 Mo.App. 118; S. C., 25 Mo, App. 198. In support of the position that a district sewer is in itself a system which must relate and be of possible service to all the property in the district, especial attention is called to the language of the court in Eyerman v. Blakesley, 78 Mo. 151. In re Sackett; 74 N.Y. 100; Cooley on Taxation, 619; Barton v. Syracuse, 37 Barb. 292; People v. Brooklyn, 23 Barb. 174; City v. Swope, 79 Mo. 446. As to the second special defense: This defense presents the question, whether the provision appearing in the latter part of section 18 of article 6 of the city charter is applicable to special taxes for sewers. The language of the clause containing this provision is general, and is applicable to all special taxes. Aside from the provisions of said section 18, with respect to the two lots whose values are less than the amounts of the special tax-bills issued against them, there should be no recovery. City to use v. Allen, 53 Mo. 55; Neenan v. Smith, 50 Mo. 525; Zoeller v. Kellogg, 4 Mo.App. 163.

T. J. Cornelius and Thomas Rowe, for the respondent.

" Nor can the assembly establish a sewer district except by ordinance, as approved by the board of public improvement. * * * It is to be presumed that the board will not approve an ordinance to establish a district until the necessity for it is apparent, and when that is so it is equally apparent that there is a present necessity for the construction of the sewer." Eyerman v. Blakesley, 78 Mo. 145. The board in recommending, and the assembly " in passing the ordinance, necessarily exercised the discretionary power given by the statute, and must be presumed to have formed an opinion of the necessity or desirableness of the improvement." Young v. City, 47 Mo. 494; McCormick v. Patchin, 53 Mo. 33. " The recommendation by the board of the passage of such an ordinance is a sufficient declaration of the necessity of such a sewer." Sheehan v. Martin, 10 Mo.App. 285; Eyermann v. Blakesley, 9 Mo.App. 231; S. C., 78 Mo. 145. As to the defense that the special taxes exceed twenty-five per cent. of the assessed valuation of the lots, the law is that special assessments " are not regarded as a tax, but as an assessment for improvement, and are not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement." Sheehan v. Hospital, 50 Mo. 155; Neenan v. Smith, 50 Mo. 525; Lockwood v. St. Louis, 24 Mo. 20; Adams v. Lindell, 74 Mo. 198; S. C., 5 Mo.App. 197-212. But apart from these authorities, it is plain that the twenty-five per cent. provision of the charter relating to public improvements has no bearing upon the assessments made for the construction of a sewer district. The construction of sewers, and the mode of paying therefor, is made a separate and distinct provision in the charter.

OPINION

PEERS J.

This suit was instituted upon eleven special tax-bills issued for the alleged proportionate cost of constructing sewers in Gingrass Creek Sewer District No. 2. The defenses interposed are: (1) That the sewer improvements forming part of the aggregate work, as far as they drain or benefit the defendant's property, consist of clay pipe sewers, which connect directly with a public sewer known as Prairie Avenue Sewer, and which is no part of the system of the drainage or sewerage of Gingrass Creek Sewer District No. 2; that the property charged has no benefit of the costly district sewer built in that district and is therefore not chargeable with the proportionate cost. (2) That the assessment of the special tax on each lot sought to be charged is in excess of twenty-five per centum...