Bates v. Comstock Realty Company

• Decision Date: 30 December 1924
• Docket Number: 24317
• Citation: 267 S.W. 641,306 Mo. 312
• Parties: CHARLES W. BATES v. COMSTOCK REALTY COMPANY, Appellant
• Court: Missouri Supreme Court

267 S.W. 641

306 Mo. 312

CHARLES W. BATES v. COMSTOCK REALTY COMPANY, Appellant

No. 24317

Supreme Court of Missouri

December 30, 1924

Motion for Rehearing Overruled December 30, 1924.

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

Affirmed.

H A. Loevy and Albert Chandler for appellant.

(1) The right of trial by jury in special tax cases was "enjoyed" before the adoption of the Constitution of 1875. St. Louis v. Armstrong, 38 Mo. 31, 33; Creamer v. Bates, 49 Mo. 525; St. Louis v Allen, 53 Mo. 44; Kiley v. Oppenheim, 55 Mo 374; Neenan v. Smith, 60 Mo. 295; Seibert v. Allen, 61 Mo. 482. The right, therefore, "remained inviolate." This was recognized in the subsequent trial of the following cases in this court: Sheehan v. Owen, 82 Mo. 460; Asphalt Pav. Co. v. Ulman, 137 Mo. 560; Independence v. Knoepler, 205 Mo. 339. And in the following, it is expressly stated that a jury was waived: State ex rel. v. Ellison, 277 Mo. 50; Prendergast v. Goldsmith, 273 Mo. 184; Ruecking v. Withnell, 269 Mo. 553; Securities Co. v. Kansas City, 265 Mo. 258; Mullins v. Cemetery Assn., 259 Mo. 147. No reported case on a special tax bill in Missouri can be found where a jury trial was asked for and was denied. (2) The tax bills are not admissible in evidence. They should have been excluded. They bear neither the signatures, nor the name, of any city official or head of a department. Whether signed manually by himself or an authorized subordinate in his name, the signature to a tax bill by or in the name of a city officer makes a primafacie case on the theory that his certificate under his official oath stands for proof. Here the Charter and Revised Code and special ordinances for this sewer require signature of the then comptroller and the then president of the Board of Public Service, subordinates can be and were authorized to do the manual work of attaching said signatures; but the employees signed only their own names, and omitted those of the two city officers altogether. Such a bill is a nullity, and the objection to its introduction in evidence should have been sustained. Eyerman v. Payne, 28 Mo.App. 72; Nevada v. Eddy, 123 Mo. 546; Heman v. Loevy, 179 Mo. 455; Jaicks v. Merrill, 201 Mo. 91; St. Louis v. Brinckwirth, 204 Mo. 301; Porter v. Boyd Paving Co., 214 Mo. 1; State ex rel. v. Reber, 226 Mo. 229; Himmelman v. Danos, 35 Cal. 451; St. Louis Charter 1914, art. 23, sec. 1; St. Louis Revised Code 1914, sec. 183, p. 874; St. Louis Revised Code 1914, sec. 796, p. 1017. (3) The St. Louis Charter provisions, defining classes of sewers and authorizing the taxing of property for sewers in this case, are void because out of harmony with the uniform state law on the subject which defines what such classes are. Constitution, art. 9, sec. 16; Constitution, art. 9, sec. 23; R. S. 1919, secs. 7583, 8131, 8304, 8482, 8734, 8769; Laws 1853, p. 253; Laws 1859, p. 165; 1901 Charter, art. 6, sec. 20; Lockwood v. St. Louis, 24 Mo. 22; Ewing v. Hoblitzelle, 85 Mo. 64; Manker v. Faulhaber, 94 Mo. 442; Badgley v. St. Louis, 149 Mo. 122; Owen v. Baer, 154 Mo. 434; State ex rel. v. Commissioners, 184 Mo. 132; St. Louis v. Myer, 185 Mo. 583. There are limits to home rule for St. Louis beyond which neither the charter nor the State can go without violating the Federal and State constitutions. To uphold the charter provisions here would involve the absurdity of surrendering the police power. Transbarger v. Railroad, 250 Mo. 55, 238 U.S. 77; Stone v. Mississippi, 101 U.S. 814; Van Cleve v. Sewerage Com., 71 N. J. L. 183; Railway v. Drainage Com., 200 U.S. 592; Bacon v. Walker, 204 U.S. 317; Railway v. Ohio, 173 U.S. 292; Houck v. Little River Dist., 238 Mo. 373, 239 U.S. 254; Virginia v. West Virginia, 220 U.S. 28; Texas v. White, 7 Wall. 721; Mo. Constitution, art. 9, sec. 25; U.S. Constitution, art. 4, sec. 3. (4) The assessments being in substantial excess of any benefits received are void. They are a taking without due process in violation of the Fourteenth Amendment. And the area taxed having entirely unequal relations to the improvement, the blind obedience to a rule of apportionment that ignores the facts of the situation is a denial of the equal protection of the laws, also in violation of the Fourteenth Amendment of the Federal Constitution and the similar provisions of our State Constitution. Garret v. St. Louis, 25 Mo. 505; Corrigan v. Gage, 68 Mo. 544; St. Joseph v. Farrell, 106 Mo. 437; Moberly v. Hogan, 131 Mo. 19; Skinker v. Heman, 148 Mo. 355; Heman v. Allen, 156 Mo. 546; Barber Asphalt Co. v. French, 158 Mo. 543; Spencer v. Merchant, 125 U.S. 345; State ex rel. v. Oliver, 273 Mo. 542; Birmingham Drainage Dist. v. Railroad, 274 Mo. 140; Wetterau v. Trust Co., 285 Mo. 561. (5) Overcharges in three items included in computation of cost and in the tax bills: (a) improper classification of excavation; (b) illegal method of ascertaining pumpage and (c) improper inclusion of cost of unauthorized drop shaft being proven, the "recovery on the tax bill shall be reduced accordingly" under the express provisions of the St. Louis Charter. They are additional evidence of fraud. 1914 St. Louis Charter, art. 23, sec. 4. (6) The tax bills on the first section are void for failure to obey the charter provisions as to the manner of making the computation of the cost and the assessment, namely, that same must be levied and assessed by the Board of Public Service. 1914 St. Louis Charter, art. 22, sec. 18.

Bates, Williams & Baron for respondent.

(1) The tax bills make a prima-facie case. Their validity is presumed and the burden is upon those contesting the tax bills to prove their invalidity. All the testimony in these suits tended to support the validity of the special tax bills and there is none to the contrary. St. Louis Malleable Castings Co. v. Prendergast Constr. Co., 288 Mo. 197 affirmed 260 U.S. 469; Parker-Washington Company v. Field, 202 Mo.App. 159; Delmar Investment Co. v. Lewis, 271 Mo. 322; Collins v. Jaicks Co., 279 Mo. 404; Charter of St. Louis, art. 6. sec. 25. (2) The question of whether appellants' lots are or are not benefited by the construction of the sewer is a legislative and not a judicial question, and when the Municipal Assembly has adjudged that they are benefited and fixed the ratio of the benefit, by establishing the joint sewer district, such judgment of the Assembly is conclusive, and the owner of property in the district cannot contend in court that his property was not benefited. McMurry v. Kansas City, 283 Mo. 494; Meier v. St. Louis, 180 Mo. 409; McGhee v. Walsh, 249 Mo. 283; Prior v. Construction Co., 170 Mo. 451; Jennings Heights L. & I. Co. v. St. Louis, 257 Mo. 291; Moberly v. Hogan, 131 Mo. 19; Mt. St. Mary's Cemetery Assn. v. Mullins, 248 U.S. 501; Hancock v. City of Muskogee, 250 U.S. 454; Miller & Lux v. Sacramento Drainage Dist., 256 U.S. 129; Valley Farms Co. v. County of Westchester, 261 U.S. 162. The above rule is universal unless the property is so situated that it could not, as a matter of law, be benefited, which is not the case at bar. (3) The fact that the Old Mill Creek Sewer was a public sewer is of no consequence. Prior v. Construction Co., 170 Mo. 439; McMurry v. Kansas City, 283 Mo. 479; Collins v. Jaicks, 279 Mo. 404; Land & Improvement Co. v. Kansas City, 173 Mo. 523. (4) Before a court of equity will enjoin the collection of the tax on account of its being excessive, or make a deduction from the amount of the tax bills, the plaintiff must tender the amount which he conceives to be actually due and just. Porter v. Paving Co., 214 Mo. 1; Johnson v. Duer, 115 Mo. 366. (5) The charter of the city of St. Louis under which this work was done makes such tender necessary. Charter 1902, art. 6, sec. 25. (6) It was proper for the tax bills to be signed in their respective names by the assessor of special taxes designated by the Board of Public Service for that purpose and to be countersigned, registered and certified by the deputy comptrollers designated by the comptroller for that purpose. The charter adopted on June 30, 1914, so expressly provides. Sections 2, 4, 6 and 10 of the Schedule of the Charter; Barber Asphalt Paving Company v. Hayward, 248 Mo. 280; Eyerman v. Blakesley, 13 Mo.App. 407; First National Bank v. Shewalter, 153 Mo.App. 635; Construction Company v. Haeussler, 201 Mo. 400; Paving Company v. McManus, 144 Mo.App. 593. (7) Jury trials are not demandable in actions brought to enforce the lien of special tax bills. (a) The jury was not demandable at common law in any action to enforce the collection of taxes, general or special. (b) Special assessments on local improvements are referable to the taxing powers of the State. (c) The proceeding by suit to enforce the lien of a special tax bill is not judicial in a strict sense; it is but a step in an administrative proceeding in which judicial assistance is invoked as a matter of convenience, and because with its assistance the rights of parties can be most surely protected and the public interests at the same time conserved. 2 Cooley on Taxation (3 Ed.) 875, 876; 2 Cooley on Taxation (3 Ed.) 828, 829; 1 Cooley on Taxation (3 Ed.) 51-55. (d) The remedy which a state had at common law was forfeiture of the lands or chattels of the person taxed or by restraint of his property. It was a summary proceeding. Until by statute or charter municipalities of this State were given the right to resort to legal proceedings for the enforcement of the lien of special taxes, the only remedy the municipalities had was collection by summary process. City of Carondelet v. Picot, 38 Mo. 125. (e) The provision of the Constitution of the State of Missouri that the "right of trial by jury as heretofore enjoyed shall remain inviolate" means the right of trial by...