City of St. Louis v. Rankin

• Decision Date: 26 November 1888
• Citation: 9 S.W. 910,96 Mo. 497
• Parties: CITY OF ST. LOUIS v. RANKIN.
• Court: Missouri Supreme Court

9 S.W. 910

96 Mo. 497

CITY OF ST. LOUIS v. RANKIN.

Supreme Court of Missouri.

November 26, 1888.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — ASSESSMENTS — NOTICE.

The charter and ordinances of the city of St. Louis, relating to the opening of streets, provide for a taxing district, the assessment of special benefits upon the property within the district in the proportion that it is benefited, and for an assessment against each piece of land of a tax equal to its proportionate share of such benefit, and for notice to the owners by the commissioners of the time and place of making the assessment, giving them the right to be heard before the assessment is

made. In an action on a special tax-bill for alleged benefits to defendant's property, held that, defendant having received notice of the proposed assessment, it was not necessary that he should be made a party defendant in the condemnation proceedings.

2. SAME — COLLECTION OF TAX — AMOUNT OF BENEFIT.

In such action, the only question is as to the validity of the assessment. The questions whether defendant's property was benefited by the improvement, and the amount of such benefit, cannot be raised.

3. SAME — LEVYING ASSESSMENT — BURDEN OF PROOF.

Where plaintiff's petition did not show that a taxing district had been defined, that defendant's property sought to be charged was within it; that notice of its boundaries, or of the time when, and the place where, the commissioners would meet for the purpose of making the apportionment, was published, as required by the ordinance, — the court properly refused to instruct the jury to find a verdict for plaintiff.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action by the city of St. Louis against Thomas Rankin, Jr., on special tax-bill for alleged benefits to defendant's property because of the widening of a street. Plaintiff appeals from a verdict and judgment for defendant.

Leverett Bell, for appellant. G. M. Stewart, for respondent.

BRACE, J.

This is an action on a special tax-bill, for alleged benefits to defendant's property because of the widening of Eighteenth street at its intersection with Clark avenue, in the city of St. Louis. The benefits were assessed in a condemnation proceeding in the St. Louis circuit court, in a case entitled City of St. Louis v. Jacob B. Wall et al. The defendant was not by the petition in that proceeding made a party defendant, nor was there a summons issued to or served upon him, nor was any of his property sought to be condemned therein. The property assessed for benefits is on Clark avenue, 158 feet distant from the street improved. The petition sets out the proceedings in the condemnation suit; the ordinance authorizing its institution; the ordinance governing condemnation proceedings, and for the collection of benefits and payment of damages; the issuance of the tax-bill; the notice thereof to the defendant; alleged the expiration of the time allowed by ordinances for its payment; averred non-payment; and prayed judgment for the amount thereof, with interest and costs, and that said amount be declared a special and first lien against the premises assessed, and for a sale, etc. The defendant, in his answer, denied all the allegations of the petition, and set up two defenses to plaintiff's action: First. That he was not a party to said suit of City of St. Louis v. Wall et al.; had no notice of the proceedings alleged to have been had therein; and was in no way impleaded therein. Second. That the property described in said petition was in no way and in no respect benefited by or in consequence of the matters and things alleged in the petition. The plaintiff read in evidence the record of the condemnation proceedings, and it was admitted that the tax-bill was regularly issued, and that all the ordinances referred to in the petition had been regularly passed; and then introduced evidence tending to prove that the defendant's property sought to be charged was specially benefited by the improvement, and rested. The defendant then introduced evidence tending to prove that his property was not specially benefited by the improvement, and this was all the evidence. The court refused to instruct the jury, as prayed for by the plaintiff, "that on the testimony in the case the plaintiff is entitled to recover the amount of the special tax-bill sued upon," and instructed them "that the issue for them to determine in this case is whether defendant's property, as described in the petition, was especially benefited by the widening of Eighteenth street, and the amount of such special benefits, if any. If you find said property was not especially benefited, your verdict should be for the defendant; if you find it was especially benefited, you should state the fact in your verdict, and the amount of such benefit," — and further instructed the jury that the report of the commissioners in the condemnation proceedings was not evidence of such benefits, and to make their finding as to the benefits on the other evidence in the case, without reference to the finding of such commissioners. The jury found for the defendant, and the plaintiff appealed.

It will thus be seen the case was tried upon the theory that the defendant in this action, for the collection of the amount assessed for benefits against his property, and the enforcement of the lien therefor given by law, had the right to show that his property had not been specially benefited, or had not been benefited to the amount assessed; in effect, holding either that the property had not been assessed at all, or allowing an appeal from that assessment, — practically converting the suit for the collection into an action for the assessment and collection of benefits; and this theory seems to have the support of the opinion in the case of City of St. Louis v. Richeson, 76 Mo. 470. The doctrine that the property of a citizen especially benefited by a public improvement may be made to contribute, for such special benefit, to the expense thereof, an amount equal to such benefit, over and above the amount to be contributed by his property in common with other citizens for the common benefit, though sometimes questioned, is now so universally accepted and well established that it is unnecessary to cite authorities in support of it. It is also as well settled that the power of the government by which such contribution is enforced is the exercising of the taxing power of the government, and not of the power of eminent domain. Such special benefit is a tax assessed against the particular property benefited. Suits for the collection of delinquent taxes are quite familiar. The law-making power doubtless might provide for the assessment as well as the collection of taxes by suit, but the suggestion that it had done so in a given case would be so novel as to invite a careful scrutiny of the law said to authorize it. The law governing this case is found in the scheme and charter of St. Louis, §§ 2-6, 9, 10, and in ordinances of the city of St. Louis, Nos. 11,695, 12, 121; the former, a general ordinance, entitled "An ordinance governing proceedings in the condemnation of private property for public use, and providing for the collection of benefits, and the payment of damages," etc., approved March 30, 1881; the latter, an ordinance for the widening of the particular street in question. The charter provisions contained in said section, so far as applicable to this case, may be summarized as follows: Whenever the assembly shall provide by ordinance for widening any street, and it becomes necessary for that purpose to appropriate private property, a proceeding shall be instituted in the circuit court in the name of the city, by petition, setting forth the general nature of the improvement proposed to be made; the names of the owners of the property to be appropriated, if known; and, if not known, a description of the property; and praying the appointment of three disinterested commissioners to assess the damages which said owners may severally sustain by reason of the appropriation; to which petition the owners, if known, shall be made parties defendant by name; if unknown, by a description of the land. Upon filing the petition, a summons shall issue to the defendants, giving them ten days' notice of the time when the petition will be heard, and, in case of non-resident or unknown owners, an order of publication....