Farrar v. City of St. Louis

Decision Date31 October 1883
PartiesFARRAR et al., Appellants, v. THE CITY OF ST. LOUIS et al.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Glover & Shepley, John Wickham and J. L. and F. P. Blair for appellants.

The action was properly brought in the name of the appellants, as tax-payers of the city of St. Louis. Matthis v. Cameron, 62 Mo. 504; State v. Saline Co., 51 Mo. 350; Newmeyer v. Railroad Co., 51 Mo. 81. The city ordinance No. 12,041, attempts to collect a special tax for the improvement of Washington avenue from Fifth to Twelfth street, by dividing the entire cost of the work by hnear front feet, and requiring each adjoining lot owner to pay accordingly; said ordinance is unconstitutional and void. Charter of St. Louis, § 18, art. 6; Cooley Con. Lim., (5 Ed.) top p. 629; Cooley Tax., p. 451; Burroughs Tax., p. 470; Warren v. Henley, 31 Iowa 31. The courts have never held the front foot rule, so called, to be a rule, nor have they admitted the legislature omnipotent. Burroughs on Tax., p. 61; Woodbridge v. Detroit, 8 Mich. 274; City v. Donohue, 31 Mo. 345; Weber v. Schergens, 59 Mo. 389; Halpin v. Campbell, 71 Mo. 493. The special tax proposed by ordinance 12,041 is unconstitutional and void, because not uniform. Cons. of 1875, art. 10, § § 1, 3, 4, 6, 7, 10; City Charter 1876, art. 6; St. Joseph v. O'Donohue, 31 Mo. 345; Livinton v. Albany, 41 Ga. 21; Burroughs on Tax., p. 62. Ordinance 12,041 is illegal and void, because it exempts from the operation of the special tax a large part of the property liable to its burden. City of New Haven v. Fair Haven, etc., R. R. Co., 38 Conn. 422; Gas Co. v. Thurber, 2 R. I. 15. Said ordinance is illegal in taxing owners of adjoining lots for improving that part of the avenue in possession of the railroads. City Charter, art. 10, § 5; 2 Dillon Munic. Corp., (3 Ed.) § 761; Street R. R. Co.'s Appeal, 32 Cal. 491. The ordinance is illegal in taxing lot owners with cost of cross-walks. City Charter, art. 6, § 18; Blunt v. Janesville, 31 Wis. 648. The special tax proposed by the ordinance is void, because in excess of constitutional limit. Cons., art. 10, §§ 11, 8. The ordinance is illegal, being in violation of section 15, article 6 of the city charter, and because it establishes no constitutional improvement district. Cons., art. 5, §§ 9, 10; State, etc., v. St. Louis, 1 Mo. App. 503; Cummings v. Bank, 101 U. S. 153. The contract of the city with W. R. Allen is void, because it contains a clause authorizing the street commissioners to alter its terms. City Charter, art. 6, §§ 15, 27, 28; Kiley v. Oppenheimer, 55 Mo. 374. The ordinance is void, because it is in conflict with the provisions of section 18, chapter 6 of the City Charter. Blunt v. City, 31 Wis. 648; Ruggles v. Collier, 43 Mo. 353.

George A. Madill and Leonard Wilcox for W. R. Allen.

The power to tax is inherent in the State, and primarily is unlimited. No restriction upon such power will be presumed to be imposed by the constitution, unless such intention is expressed in clear and unambiguous terms. County Ct. v. Griswold, 58 Mo. 192; Dillon Munic. Corp., (3 Ed.) § 737; Cooley Cons. Lim., § 479; Simmons v. State, 12 Mo. 270; Railroad Co. v. Maguire, 20 Wall. 46, 62; McCullough v. Maryland, 4 Wheat. 431. The Supreme Court of this State has always recognized the validity of local assessments to pay for local improvements, and held that the general provisions of the various constitutions of the State limiting and regulating the mode of taxation, were not intended to reach them. Lockwood v. St. Louis, 24 Mo. 20; Newby v. Platte Co., 25 Mo. 269; Garret v. St. Louis, 25 Mo. 413; Palmyra v. Morton, 25 Mo. 595; Egyptian Lever Co. v. Hardin, 27 Mo. 496; St. Louis v. Clements, 36 Mo. 471; Uhrig v. St. Louis, 44 Mo. 463; State v. St. Louis, 62 Mo. 245; St. Louis v. Speck, 67 Mo. 406; Adams v. Lindell, 72 Mo. 198; St. Louis v. Spigel, 75 Mo. 146. The power granted the city of St. Louis to pave, is a continuing one. McCormack v. Patchen, 53 Mo. 36; Hoffman v. St. Louis, 15 Mo. 654. The power conferred on the city to pave at the cost of the adjoining property, carries with it the power to adopt any reasonable mode of apportionment. Cooley Cons. Lim., (5 Ed.) p. 233; Dillon Munic. Corp., (3 Ed.) §§ 94, 739, 741; Page v. St. Louis, 20 Mo. 142; Am. Union, etc. v. St. Joseph, 66 Mo. 680. The frontage assessment was legal. Cooley Cons. Lim., 629; Cooley on Tax., p. 451; Fowler v. St. Joseph, 37 Mo. 228; St. Joseph v. Anthony, 30 Mo. 228; Neenan v. Smith, 50 Mo. 528; Adams v. Lindell, 72 Mo. 198. The mode of the exercise of the power to make the street improvements, prescribed by ordinance No. 12,041, was otherwise constitutional and valid.

NORTON, J.

Section 26, article 3 of the charter of the city of St. Louis, (R. S., p. 1585,) provides that the mayor and assembly shall have power within the city, by ordinance, to establish, open, vacate, alter, widen, extend, pave or otherwise improve * * all streets and avenues * * and provide for the payment of the costs and expenses thereof in the manner provided in the charter. It is also provided by section 18, article 6, Revised Statutes, page 1608, that the cost of constructing such improvements in the city shall be apportioned as follows: “The grading of new streets, alleys and the making of crosswalks and repairs of all streets and highways and cleaning of the same, and alleys and crosswalks, shall be paid out of the general revenue of the city; and the paving, curbing, guttering, sidewalks and the materials for the roadways, the repairs of all alleys and sidewalks, shall be charged on the adjoining property as a special tax and paid and collected as hereinafter provided, and whenever the estimated special taxes to be assessed against any property shall in the aggregate amount to more than 25 per cent of the assessed value of said property, calculating a depth to such property of 150 feet, then the assembly shall provide out of the general revenue fund for the payment of the amount in excess of said 25 per cent.”

In pursuance of the power conferred by the charter provisions the following ordinance was adopted by the mayor and assembly.

[12,041]

“An ordinance to reconstruct Washington avenue, from Fifth street to Twelfth street.”

“Be it ordained by the municipal assembly of the City of St. Louis, as follows:

Section 1. The board of public improvements is hereby authorized and directed to cause Washington avenue, from Fifth street to Twelfth street, to be reconstructed by taking up and removing the old pavement, preparing the road-bed, renewing and re-adjusting the curbing, paving the roadways with granite blocks laid on a concrete foundation, and making all proper connections and intersections with other streets and alleys.

Section 2. The foundation shall be a bed of hydraulic cement concrete; the paving blocks shall be granite, laid on a bed of sand, and the curbing shall be limestone.

Section 3. The old pavement shall be removed and the road-bed properly formed to a depth of fourteen inches below the intended surface of the roadway. On the road-bed a foundation of hydraulic cement concrete six inches deep shall be laid; on this foundation there shall be placed a pavement of granite blocks set on edge on a bed of clean, coarse sand. The blocks shall then be covered with fine, hot gravel and raked until the joints are completely filled. There shall then be poured into the joints of the pavement a paving cement of proper consistency until they are filled flush with the surface. All broken or defective curbstones shall be removed and replaced with new ones, and such as can be used again shall be re-adjusted. They shall have a straight and even face on the side toward the gutter, and shall have close joints at least eleven inches in depth below top of earth.

Section 4. The cost of the foregoing work and all proper connections and intersections required shall be charged as a lien upon the adjoining property fronting or bordering on the improvement herein provided for, and shall be paid by the owners thereof. When said work is completed, the president of the board of public improvements shall compute the cost thereof respectively in the proportion that the linear feet of each lot fronting or bordering on said improvement bears to the total number of linear feet of all the property chargeable with the special tax aforesaid and shall make out and certify to the comptroller, on behalf of the contractor, bills of such cost and assessment accordingly as required by law.”

“Approved May 10, 1882.”

That on the foot of said ordinance is the following entry.

OFFICE OF THE BOARD OF PUBLIC IMPROVEMENTS,
)
St. Louis, April 14, 1882.

)

“The board of public improvements estimate the cost of the entire work to be done at the expense of the property-owners at $42,840.

Attest:

HENRY FLAD, president.

EMORY S. FOSTER, Secretary.”

The plaintiffs, who are the owners of a lot of ground fronting thirty-two and one-half feet on Washington avenue on the line of the improvement authorized by the ordinance, with a depth of seventy-one feet along the west line of Ninth street, instituted this proceeding to enjoin the city and the contractor from executing the work of reconstructing Washington avenue. They allege substantially in their petition as the grounds for appealing to the restraining and injunction powers of the court the following:

1. That the ordinance and contract are beyond the powers of the city and are illegal and void.

2. That Washington avenue has heretofore been improved; that the city at large is interested in its improvement; that the ordinance makes no provision for ascertaining the benefits to the public from the improvement thereof; but assesses the whole cost thereof equally upon each linear foot fronting on said avenue between Fifth and Twelfth streets.

3. That said ordinance includes the cost of cross-walks on Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh...

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