Bates v. Comstock Realty Co.

• Decision Date: 08 October 1924
• Docket Number: No. 24317,24317
• Parties: BATES v. COMSTOCK REALTY CO.
• Court: Missouri Supreme Court

267 S.W. 641

BATES v. COMSTOCK REALTY CO.

No. 24317

Supreme Court of Missouri.

October 8, 1924.

Motion for Rehearing Overruled December 30, 1924.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Charles W. Bates against the Comstock Realty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

H. A. Loevy and Albert Chandler, both of St. Louis, for appellant.

Bates, Williams & Baron, of St. Louis, for respondent.

RAGLAND, J.

This is a suit on two special tax bills issued and delivered to the Carter Construction Company by the city of St. Louis, evidencing assessments made against property of defendant for the payment in part of the cost of construction of what is known as the Mill Creek joint district sewer.

The improvement was made, and tax bills issued to pay for it, pursuant to three ordinances approved July 3, 1914. The first established a joint sewer district, to be known as "Mill Creek joint sewer district." The second and third authorized and directed the board of public improvements to let contracts for the construction respectively of the first and second sections of a Mill Creek joint district sewer, in accordance with the plans and specifications on file in its office.

The boundaries of the Mill Creek joint sewer district as established by the ordinance are substantially coterminous with those of the natural watershed known as the Mill Creek valley, which extends westwardly from the Mississippi river, and comprises a territory of approximately 5,122 acres. For many years prior to the construction of the joint district sewer giving rise to the present controversy this area was drained by a system of sewers consisting of a main sewer, the "Mill Creek sewer," extending in a westerly direction from the Mississippi river a distance of 3½ miles, and laterals which came into it from both the north and the south. At the time of the passage of the ordinances just referred to these sewers were entirely adequate for the carrying off of the sanitary sewage which flowed into them during dry weather, but during heavy rains the main sewer became overcharged, and the water flowed out through the manholes and backed up through the laterals and flooded basements in territory on both the north and the south sides of it. The joint district sewer was designed to relieve this condition, and was so constructed as to become an auxiliary of the main sewer during the times in which storm water is seeking an outlet.

The new Mill Creek joint district sewer lies immediately south of the old Mill Creek sewer and parallels it, but has no direct connection with it. Nor does the new sewer communicate directly with any of the laterals on the north side of the old one. But it does receive the water flowing through the laterals on the south side after it reaches a certain volume. By reason of this connection the new sewer carries approximately one-half of the flood water that formerly sought outlet through the old one in times of heavy rains. The new sewer is of concrete construction, built in the shape of a horseshoe, and having dimensions of 16½ feet both horizontally and vertically. From the river for a distance of 1,990 feet it was constructed in an open cut; the remainder of it was tunneled through rock. For the purpose of construction it was divided into two sections and a separate contract was let for each. The Carter Construction Company was awarded both, however. Under these contracts the work and material were classified and were to be paid for by the quantity. The bids were based on a "unit price" which was defined to mean "the price * * * of the separate, articles of material in place and the labor necessary to render a complete sewer according to the plans and specifications." According to the bids and estimates the first section was to cost $1,399,924.20 and the second section, $1,672,532.

The second section of the sewer was completed and accepted by the city in April, 1916, and the first section in May, 1916. Computations of the cost, alleged to be in conformity with the terms of the contracts, were made under the supervision of the president of the board of public service. According to such computations the cost of the first section was $1,673,611.80, and that of the second section $1,760,038.22. These two sums were each levied and assessed by the board of public service as a special tax ratably by area on all lots or parcels of ground within the joint sewer district, excluding public highways, as provided by the charter then in force. Based on these assessments, tax bills were issued. They were signed as follows:

"By Order of the Board of Public Service. [Signed] Leo Osthaus, Assessor of Special Taxes. Registered and Certified. [Signed) Paul Young, Jr. By Order of the Comptroller."

The two tax bills in suit are for the assessments made against defendant's property for its proportion of the cost of the two sections of the sewer respectively. Plaintiff is the assignee and holder. Other facts having an immediate bearing on the questions presented for decision will be stated in connection with their consideration. The petition is in two counts, one for each tax bill, and is conventional. The answer is quite long. A synopsis of it was made by defendant's counsel in their principal brief as follows:

"(1) Denial that contractor did work that required in conformity with contract; denial that city officials properly computed the costs of the sewer and duly levied and assessed the cost; denial that the tax bills are lawful liens.

"(2) That charter classification of public sewers is arbitrary, oppressive, and void, that the sewer in question was a public sewer but was falsely and fraudulently named `joint district sewer,' so that property owners would have to pay for it, whereby the burden of payment was arbitrarily, unreasonably, and oppressively shifted from public funds to private property, that this sewer is intended and designed to carry off surface water only, and not house or sanitary drainage at all.

"(3) That charter section 22, art. 6, provides that the whole cost of the joint district sewer will be assessed against the real property in the district; that the benefit to the real property in the sewer district (if there is any benefit therein, which is not admitted) is much less than the alleged cost of the sewer, in fact, it is no benefit at all to the defendants; that special tax bills cannot lawfully be for more than the benefit to the property, that if the cost exceeds the benefit the municipality should pay wherefore, the provision that the total cost shall be assessed against the property is unlawful, oppressive, and unreasonable and in violation of sections 20, 21, and 30, art. 2 of Constitution and Fourteenth Amendment of the federal Constitution.

"(4) That charter section 22, art. 2, that if the proposed joint district sewer is to drain territory outside of the city limits, the municipal assembly shall in the sewer ordinance provide that the city shall pay such pro portions of the entire cost as the territory outside the city limits bears to the entire district; that this sewer drains 11,000 acres in St. Louis county, and, as the total area of the sewer district is 16,000 acres, the city should pay 11 1/6 of the cost of the sewer, ordinances here fail to do, and are therefore null and void.

"(5) That the sewer was intended only as a relief storm sewer to relieve the original Mill Creek public sewer; that it was not intended to carry house or private sewage and is not for same, and that there was no need for sewer facilities; that even if it had been necessary to construct a new storm sewer, one which was one-half of the size mentioned would have been ample and, therefore, the tax bills are void, unreasonable, and excessive.

"(6) That there are four lateral sewers in the southern half of the district, and that it is only in case of extraordinary rain (if at all) that by means of an opening in each lateral sewer that storm water overflow empties in the sewer through a drop shaft; that none of the territory in the district north of the old sewer drains, or is drained, or is intended to drain into the new sewer, and it is therefore entirely useless to the property owners in the northern part of the district, that their property cannot be benefited thereby, and therefore the tax bills are void and illegal, are in violation of paragraph 1 of the Fourteenth Amendment of the federal Constitution, and of sections 20, 21, and 30 of article 2 of the Missouri Constitution.

"(7) That the proceedings and naming this sewer to be a `joint district' sewer and not a 'public' sewer is in violation of paragraph 1 of Fourteenth Amendment of federal Constitution in that the property of defendants is sought to be taken without due process of law, and also in violation of sections 20, 21, and 30 of article 2 of Missouri Constitution.

"(8) That the sewer is much larger than was necessary to provide for drainage only within the city limits, and that it was made specially large for the benefit of residents of St. Louis county, therefore, the ordinances are void and null in violation of section 22 art. 6 of the charter, and of the provisions aforesaid of state and federal Constitutions.

"(9) That the tax bills were issued before the work of construction was completed by then contractor, that the plans, specifications and contract were not complied with, but purposely ignored and departed from by the contractor with the knowledge and approval of board of public service, that the cost was $350,000 greater by reason of changes specified.

"(10) That the charter contains absolutely no provision for notice to the property owners of the intention to initiate sewer ordinance, nor any notice thereof of hearings to be held by the board and no notice was given to the propsame, erty owners at any time, that defendants had no knowledge of the work being done, or of the contract being let,...