Bridges Asphalt Co. v. Jacobsmeyer

• Decision Date: 02 August 1940
• Docket Number: 36550
• Parties: Bridges Asphalt Company v. Jerome E. Jacobsmeyer and Ursula Jacobsmeyer, His Wife, August C. Hilmer, Trustee, Appellants
• Court: Missouri Supreme Court

142 S.W.2d 641

346 Mo. 609

Bridges Asphalt Company v. Jerome E. Jacobsmeyer and Ursula Jacobsmeyer, His Wife, August C. Hilmer, Trustee, Appellants

No. 36550

Supreme Court of Missouri

August 2, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorious, Judge.

Affirmed.

Grimm Mueller & Roberts for appellants.

(1) Special assessments for street improvements are not taxes in the usual sense, but are charges for improvements which enhance the owner's property, for which he should render compensation. McGuire v. Brockman, 58 Mo.App. 307; Kansas City v. Ritenour, 84 Mo. 253; Union Trust Co. v. Pagenstecher, 221 Mo. 131. (2) The benefit or taxing district formed under the ordinance of the city of St Louis was palpably arbitrary and improperly laid out, and its formation an abuse of legislative power, and is contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States and the Sections 21 and 30, Article II, of the Constitution of Missouri. Gast R. & I. Co. v. Granite Co., 240 U.S. 55; Hesse-Rix Co. v. Krug, 6 S.W.2d 570; Parlser-Washington v. Dodd, 264 S.W. 651; Commerce Trust Co. v. Blakeley, 202 S.W. 402; Wetterau v. Farmers & Merchants Trust Co., 226 S.W. 941. (3) Many lots similarly situated to that of appellants' lot were not taxed a frontage and the apportionment of the cost of the public improvement was unlawfully increased on appellants' lot and deprives them of their property without due process of law, without just compensation, and denies them the equal protection of the law, in violation of the Fourteenth Amendment to the Constitution of the United States and Sections 21 and 30 of Article II of the Constitution of the State. St. Louis Public Schools v. St. Louis, 26 Mo. 468; Hannibal Contracting Co. v. Friend, 38 S.W.2d 493; Moran v. Lindell, 52 Mo. 229; Powers v. Lindell, 52 Mo. 233. (4) For the purpose of establishing a benefit or taxing district lots or parcels of real estate must be treated in their entirety and cannot be split or divided. Rackliffe-Gibson Const. Co. v. Zeilda Forsee Inv. Co., 179 Mo.App. 229. (5) The decree of the court is inconsistent, contradictory and erroneous.

C. L. de Renthel for Bridges Asphalt Paving Company; Wm. B. Kinealy of counsel.

(1) The trial court correctly entered a decree in favor of plaintiff, and the decree was in all respects proper, and the plaintiff was entitled to recover upon the special tax bill upon pleading and proof that the special tax bill was issued by the proper authorities of the city of St. Louis, because: (a) Under the charter of the city of St. Louis special tax bills are prima facie evidence of their validity. St. Louis Charter, Art. XXIII, Secs. 4, 5; Vieths v. Planet P. & F. Co., 64 Mo.App. 207. (b) It is not necessary for the plaintiff in a suit upon a special tax bill to allege or prove that the preliminary steps leading up to the issuance of the special tax bill were duly taken, but if there be any defect in such preliminary proceedings it is incumbent upon the owner of the property assessed and sued to plead and prove such defect. Bambrick Const. Co. v. McCormick, 157 Mo.App. 208; First Natl. Bank v. Aquamsi Land Co., 70 S.W.2d 90, certiorari denied State ex rel. v. Hostetter, 79 S.W.2d 463. (2) The attack upon the city's judgment amounted to a collateral attack which cannot be maintained, and in any event could not affect the validity of plaintiff's special tax bill. Burke v. Kansas City, 118 Mo. 309; Tremayne v. St. Louis, 6 S.W.2d 945; Bobb v. Taylor, 193 S.W. 800. (3) There was no evidence showing fraud or oppression in the levy of the tax or any discrimination or nonuniformity in the tax. There was no evidence that defendants had appeared at the original hearing for this improvement and protested against the same, and, therefore, said defendants cannot complain against the amount of the tax. Wiget v. City, 85 S.W.2d 1038; Haeussler Inv. Co. v. Bates, 267 S.W. 264; Parker-Washington Co. v. Dodd, 264 S.W. 651. (4) It has often been held that the establishing of a benefit or taxing district (as herein under Ordinance 40661) is a legislative question. Ely v. St. Louis, 181 Mo. 723; Bassett v. St. Joseph, 53 Mo. 290; Keating v. Kansas City, 84 Mo. 415; Kassman v. St. Louis, 153 Mo. 293; Kansas City v. Jones Store Co., 28 S.W.2d 1008. Laying off benefit district for special improvement is purely legislative function and not unconstitutional as violating due process. St. Louis v. Nicolai, 13 S.W.2d 36. The following citations may be referred to as supporting above rulings: Garrett v. St. Louis, 25 Mo. 505; Barber Asphalt Pav. Co. v. French, 158 Mo. 534; Heman v. Allen, 156 Mo. 534; Prior v. Construction Co., 170 Mo. 439; Heman v. Schulte, 166 Mo. 409. (a) In the case of Mudd v. Wehmeyer, 19 S.W.2d 891, the court found that due process does not require property owner be given opportunity to be heard before taxing district is created, where Legislature itself establishes district and declares what property shall be taxed. U.S. Const. Amend. 14; Mo. Const. Art. II, Sec. 30.

OPINION

Douglas, J.

This is a suit upon a special tax bill issued against the property of defendants for the improvement of North Florissant Avenue from Wright Street to Palm Street in St. Louis. The plaintiff is the assignee of the bill.

A benefit or taxing district was laid out, the cost of the improvement apportioned, the work completed and tax bills issued. Upon defendants' refusal to pay the bill against their property plaintiff brought suit. Defendants by their answer and cross bill prayed for the cancellation of the bill. Judgment was for plaintiff and defendants have appealed. There is no complaint that the work was not properly performed.

The chief question for consideration is whether the taxing district has been laid out in such a manner as to be an abuse of legislative power in that the distribution of the cost of the improvement is so unfair that the due process clauses of the United States and Missouri Constitutions have been violated. This question, we might add, vests this court with jurisdiction of the instant case.

It is a recognized fact that there are bound to be certain inequalities and hardships in apportioning improvement taxes even under a plan which is reasonably fair and just because human wisdom has not yet devised a scheme of exact equality in the assessment of such taxes. The question is to be considered with a liberal view of the incidental inequalities. If the expense has been apportioned as justly and as fairly as is reasonable under the conditions and with special consideration of the benefits applicable to the parcels taxed there is no violation of the constitutional guaranties despite the fact greater burdens are cast upon some. [Barber Asphalt Paving Co. v. Hayward, 248 Mo. 280, 154 S.W. 140.] These guaranties are violated where the tax is distributed in grossly unequal portions under a plan which is palpably arbitrary or a plain abuse. [Houck v. Little River Drainage District, 239 U.S. 254.]

The cases chiefly relied on in support of the contention that the district was improperly laid out involve the old St. Louis charter provision which established a precise rule to be followed in laying out such districts. Abuses resulted because of the impossibility of applying a fixed rule to varying conditions. [See Gast Realty Co. v. Schneider Granite Co., 240 U.S. 55.] This court has consistently held that it is impossible to prescribe a hard and fast rule for the establishment of taxing districts which will not cause conflicts with the Constitution. As a result the charter was amended and the rule was abandoned. Flexible powers are now provided.

To be sure the district involved in this case has saw-tooth boundaries and is irregular in outline. This condition arises because of the acute angles at which the avenue and the cross streets intersect. Therefore, the lots fronting on these cross streets are not parallel with the avenue. Such boundaries should not be a basis for criticism. To the contrary, their irregularity denotes that special consideration has been given to the existing conditions. Consideration was also given to the distribution of the cost of the neighboring streets so that only those lots mostly benefited by the present improvements are included in the district. Under all the circumstances we believe that the district as it is laid out apportions the cost of the improvement fairly and reasonably.

In widening the avenue an entire lot would be taken and only part used for travel because the curb line would intersect the lot at an angle. As a result small triangular plots or islands were created at various cross streets on both sides of the avenue. These plots lie outside the new parallel curb lines of the avenue and abut it. While they were left unpaved the testimony was that they are part of the avenue. However it is insisted that they should have been assessed their share of the cost and the city required to pay such assessments. The charter makes no provision for an assessment against public highways which are in a benefit...