Albers v. City of St. Louis

• Decision Date: 23 July 1921
• Citation: 233 S.W. 210,289 Mo. 543
• Parties: FRANK ALBERS v. CITY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

233 S.W. 210

289 Mo. 543

FRANK ALBERS v. CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

July 23, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

Charles H. Daues and H. A. Hamilton for appellant.

(1) The city had the right to repeal Ordinance 22948 and abolish the boulevard therein provided for prior to the time it had actually been condemned and opened as a boulevard. St Louis v. Christian Brothers College, 257 Mo. 541. (2) In opening a street the city had the right to determine the width thereof, and its legislative discretion in so determining is not subject to review. St. Louis v Brown, 155 Mo. 555. (3) There is no evidence of fraud in the enactment of Ordinance 24224 providing for the opening of Kingshighway northeast. (4) The court exceeded its jurisdiction in this case in vacating and setting aside the entire judgment in the case of City of St. Louis v. James E. Baker, and in declaring said judgment, which included the condemnation of the land, null and void. (5) The judgment assessing benefits in the case of City of St. Louis v. James E. Baker in the circuit court was a final judgment fixing the benefits chargeable against the property assessed, and said judgment is not subject to collateral attack in this proceeding. St. Louis v. Belle Place Realty Co., 259 Mo. 126; Searcy v. Clay County, 176 Mo. 493; Vrana v. St. Louis, 164 Mo. 146; Buddecke v. Ziegenhein, 122 Mo. 243.

Wm. L. Bohnenkamp and Benjamin H. Charles for respondent.

(1) The questions of law decided on the first appeal are the law of the case. Gracey v. St. Louis, 221 Mo. 1; Benton v. St. Louis, 248 Mo. 98; 15 R. C. L. sec. 430, p. 953. (2) The charter fixed the benefit district for the creation of a boulevard, confining it to lands fronting or bordering thereon. St. Louis Charter, art. 6, sec. 1 (Rombauer's Code 1912, p. 352). (3) The petition charged, the evidence established and the court found, that Kingshighway Northeast (Bircher Street) was widened and opened as a boulevard. No benefit district, therefore, other than that established by the charter could lawfully be designated; and no property outside of such district could be deemed to be benefited, nor assessed. Albers v. St. Louis, 268 Mo. 349; St. Louis v. Realty Co., 259 Mo. 136. (4) There is no conclusive presumption that the increase of width in Bircher Street was merely to widen that highway as a street. It may be shown, and was shown in the evidence, that this widening was designed by the city to create a boulevard without complying with the boulevard provisions of the charter. The courts will look through any sham. Albers v. St. Louis, 268 Mo. 349; Kansas City v. Hyde, 196 Mo. 498, 513; Kansas City Gas Co. v. Kansas City, 198 F. 515. And the courts will not tolerate abuses of power. 22 L. R. A. (N. S.) 173; Bennett v. Marion, 106 Iowa 628, 632; Albers v. St. Louis, 268 Mo. 349. (5) The repealing ordinance (24,224) under which the boulevard was in fact sought to be established was void, as found by the trial court, because it attempted to carry out a boulevard proceeding under the guise of a mere street widening. Albers v. St. Louis, 268 Mo. 349; St. Louis v. Brinckwirth, 204 Mo. 305, 306; St. Louis v. Realty Co., 259 Mo. 126. (a) The city counselor's notice that a benefit district had been established by commissioners appointed by the circuit court was therefore void, because the ordinance itself under which the proceeding was instituted was void, and because also the commissioners had attempted to establish a benefit district for a boulevard not authorized by the charter. (b) The judgment rendered in a proceeding brought under a void ordinance is itself void.

JAMES T. BLAIR, J. Elder, J., not sitting.

OPINION

JAMES T. BLAIR, J.

The city appeals from a judgment of the circuit court which cancels certain special assessments against parcels of land owned by respondent. These assessments purported to be levied as part of the cost of the widening of Bircher Street. The case was here before on an appeal from a judgment for the city, following the trial courts action in sustaining the city's demurrer to the petition. [Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83.] This court held the petition good and reversed the judgment and remanded the cause. On the hearing which followed that remandment the trial court found the facts to be as alleged in the petition and canceled the special assessments, as stated. Appellant offered no evidence. The evidence offered by respondent proves the allegations of the petition considered in the opinion on the former appeal, and a reference to those allegations will, therefore, be substantially sufficient to disclose the facts of this record.

In brief, to recapitulate, the petition alleges, the evidence shows and the trial court found that the city undertook to open and improve a rather elaborate boulevard from the river on the south side of the city around the western limits and to the river again on the north side of the city. Kingshighway Northeast was to constitute a part of this boulevard, and it included Bircher Street, then a little used street, sixty feet wide, in a sparsely settled residence district, upon which there was but scant traffic and that of a sort found in such communities. The principal use was by a comparatively small number of delivery wagons which served the people of the neighborhood. Under the boulevard scheme the width of Bircher Street was to be increased to two hundred feet. A service roadway and two pleasure driveways were to be constructed, and parkways, with trees, etc., and sidewalks were to occupy the remainder of the two hundred feet. This plan conformed Bircher Street to the general boulevard scheme. Its name was to be changed and it was to become a part of Kingshighway Northeast.

Under the charter the expense of opening the boulevard was required to be borne in part by the city at large and in part by the property abutting on the boulevard. To pay the city's part of the expense the people of St. Louis voted bonds for $ 500,000. These bonds were then sold and the money became...