Heman v. Allen

Decision Date04 June 1900
Citation57 S.W. 559,156 Mo. 534
PartiesHEMAN v. ALLEN et al., Appellants
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

Grover & Grover and G. B. Webster for appellants.

(1) Under sec. 22, art. 6, charter of St. Louis, before a lien can arise on property in a taxing district for the cost of the construction of sewers, the board of public improvements must make an assessment of the entire cost of the construction against the property. The petitions in these cases do not allege that the board made the assessment, and the petitions allege that "the president of the board of public improvements computed the cost thereof, and levied and assessed the same as a special tax, etc." This does not meet the requirement of the charter. The petition, therefore does not state one of the facts necessary to constitute a lien. (2) There is no evidence to prove that the board ever made an assessment. (a) The petition must state all the facts necessary to constitute a cause of action, so there must be evidence to sustain all the facts necessary to constitute a cause of action. This proof is not dispensed with in a suit on a special tax-bill any more than it is dispensed with in any other kind of suit. (b) Sec. 25, art. 6, of the charter does not dispense with proof of the necessary allegation of the petition; but only provides that the special tax bill shall be prima facie proof of the allegations necessary to constitute a cause of action, in a petition for the enforcement of the lien of a special tax bill. The special tax bill can not be prima facie evidence of a necessary fact, which has not been alleged in the petition. It is only prima facie evidence of necessary facts which are alleged in the petition. (c) The tax bill itself contains no evidence that an assessment had been made. The tax bill is not in itself an assessment. (3) It was error for the court to refuse to allow, as it did, the defendants to show by the record of the board of public improvements that the board never inquired into or adjudicated the question as to whether or not the public was benefited in any way by the construction of the Vandeventer avenue sewer. As the tax against the property-holder must be limited to the amount of benefit accruing to the property-holder's lots over and above the benefit which inured to the general public from the same improvement, it was entirely relevant for defendants to show that the public was benefited, the extent of the benefit, and that the board never examined into or made an adjudication on that subject. Norwood v. Baker, 172 U.S. 269; Fay v. Springfield, 94 F. 409; Hutcheson v. Storrie, 51 S.W. 848. (4) The main sewer on Vandeventer avenue into which the lateral district sewers emptied was a public sewer, and was not a district sewer. Moreover, it was held to be a public sewer by the St. Louis Court of Appeals, on substantially the same evidence which is presented in this case. Heman v. Handlan, 59 Mo.App. 490. (a) It was originated, planned and constructed as a public health measure. (b) The main artery of this sewer, to-wit, the "main sewer" on Vandeventer avenue, was for the use of the many "districts" which were embraced in the taxing area, which embraced 525 acres of land. The main stem was for the use, not of the district, but for the use of many districts. The character of the sewer is to be determined by its uses. (c) The sewer was projected to drain 125 acres of public property composed of streets and alleys lying in the taxing district. As to that public property, the sewer was certainly a public sewer. (d) The ordinance created, not a district sewer, but a sewer system, in which there was a central public artery, surrounded by districts, from which districts lateral or district sewers were conducted into the main conduit. It is impossible to call this main conduit a district sewer within the contemplation of the charter.

Hickman P. Rodgers, David Goldsmith, Collins, Jamison & Chappell for respondent.

(1) It is a well-recognized rule of pleading that plaintiff need only state in his petition what he is bound to prove to make out his prima facie case. Crane v. Railroad, 87 Mo. 588-593. The special tax bill made a prima facie case. St. Louis v. Oeters, 36 Mo. 456; Ess v. Bouton, 64 Mo. 105; St. Joseph v. Farrell, 106 Mo. 444. Allegations of facts unnecessary to sustain plaintiff's case are merely surplusage. Hudson v. Railroad, 101 Mo. 29. (2) The tax bill bears on its face evidence that the assessment had been made by the board of public improvements. (3) It is immaterial whether the board of public improvements inquired into or adjudicated the question of benefit to the public arising from construction of the sewer, since it was a local improvement, the cost of which was properly taxable against the property within the district. Lockwood v. St. Louis, 24 Mo. 22; Palmyra v. Morton, 25 Mo. 595. (4) The power to levy assessments for local improvements is referable to the taxing power. It is discretionary for the legislature to impose the whole or any part of the cost of improvement on adjoining property. Lockwood v. St. Louis, Ibid; Garrett v. St. Louis, 25 Mo. 510; St. Joseph v. Farrell, 106 Mo. 437; Moberly v. Hogan, 131 Mo. 23; Rolph v. Fargo, 7 N. Dak. 668. (5) That provision of the Constitution of the State of Missouri, which requires all property subject to taxation to be taxed in proportion to its value, is applicable only to general taxation, not to local assessments where the money is expended on the property taxed. The latter may be based on the area or front foot. Egyptian Levee Co. v. Hardin, 27 Mo. 495; Farrar v. St. Louis, 80 Mo. 379; Johnson v. Duer, 115 Mo. 376. (6) An assessment for local improvement is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement. Sheehan v. Good Samaritan, 50 Mo. 158; McCormack v. Patchen, 53 Mo. 36; Farrar v. St. Louis, 80 Mo. 391; Skinker v. Heman, 148 Mo. 349. (7) Appellants have no reason to complain of the finding of the trial court upon the fact that the sewer in question was a district sewer, as distinguished from a public sewer. The board of public improvements of the city of St. Louis, having determined it to be a district sewer, its action in that respect, being the exercise of a discretion, is not reviewable by the courts. St. Louis v. Oeters, 36 Mo. 456; Johnson v. Duer, 115 Mo. 366; Moberly v. Hogan, 131 Mo. 19; Warren v. The Barber Pav. Co., 115 Mo. 580; Skinker v. Heman, Ibid.

OPINION

In Banc

BURGESS J.

This is a suit upon a special tax bill issued by the president of the board of public improvements against the property of defendants for the sum of forty-nine dollars and four cents, for its proportionate part of the cost of constructing a district sewer in Vandeventer Avenue Sewer District No. One, in the city of St. Louis.

The answer sets up defenses which are equitable in their character, and then by way of cross bill asks for a decree cancelling and annulling the tax bill and lien.

The trial resulted in a judgment for plaintiff for the amount of his claim which was adjudged and decreed to be a first lien against the property described in the petition. After unsuccessful motions for a new trial, and in arrest, defendants appeal.

Objection is taken to the petition upon the ground that it does not state a cause of action, in that it does not allege that the board of public improvements made the assessment of the entire cost of the construction against the property in the sewer district, but alleges that the president of said board computed the cost thereof, and levied and assessed the same as a special tax. Under section 22, article 6, of the charter of the city of St. Louis, before a lien can attach to property in a taxing district for the cost of the construction of sewers, the board of public improvements must make an assessment of the entire cost of construction against the property liable for the cost of construction. The tax bill which was put in evidence shows that the board of public improvements did assess the costs of the sewers of said district, and as no objection was taken to the petition by demurrer, the defect was cured by the judgment. Section 2113, Revised Statutes 1889, provides that no judgment after trial shall be reversed, impaired or in any way affected for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a judgment, and it is clear that the court ought not to have given the judgment that it did give in the absence of proof of the assessment of the entire cost of the sewer, by said board. So that this defect in the petition is now unavailable to defendant.

But defendants say that as the petition does not state a cause of action the court erred in admitting in evidence over their objection the special tax bill sued upon. The record, however, fails to show that an objection was made to the introduction in evidence of this bill. It is true it shows that, when plaintiff, who was a witness in his own behalf, was testifying, and was handed the tax bill by his attorney and asked as to the signatures of Flad and Campbelle, as president of the board of public improvements and comptroller, respectively, as shown by the tax bill, the defendant objected upon the ground that the evidence was "incompetent, irrelevant, and immaterial," but these objections did not go to the introduction in evidence of the tax bill itself, and can not now be so considered.

It is argued by defendant that the sewer for the construction of which in part the tax bill sued on was issued is a public sewer, and should be paid for out of the public funds and...

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