City of St. Louis v. Nicolai

• Decision Date: 31 December 1928
• Docket Number: No. 28440.,28440.
• Citation: 13 S.W.2d 36
• Parties: CITY OF ST. LOUIS v. IRENE NICOLAI, Appellant.
• Court: Missouri Supreme Court

13 S.W.2d 36

CITY OF ST. LOUIS v. IRENE NICOLAI, Appellant.

No. 28440.

Supreme Court of Missouri, Division No. 1.

December 31, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

Caulfield & Bartlett for appellant.

The question involved in this case is whether the city of St. Louis has the lawful authority to let public work by contract, then to pay the cost of such work out of the general revenues of the city, and then to reimburse itself therefor by the issuance of special tax bills made payable to the city. (1) The first ground of invalidity that suggests itself is that an improvement paid for out of general revenue is a general, not a local, improvement, and was so regarded by the city when the work was fully paid for out of general revenues of the city collected at large. To justify a levy of special assessment there must have been special benefits conferred by the improvement upon the property assessed, different in kind and different in degree from those conferred upon property in the city at large. Unless those special benefits so conferred are substantially equal in value to the amount of the assessment made, then such assessment is a taking of defendant's property for public use without just compensation and without due process. To pay the cost of public work out of general revenues and then afterward attempt to levy the cost of such work on local property seems inconsistent with this principle of special assessment. (2) The first section of Article 23 of the Charter provides, in part, that: "The city shall not be liable in any manner for any work or improvement to be paid for in special tax bills." If the tax bills were being sued on by any other than the city, the failure to do the work "in a good and workmanlike manner according to the class of work mentioned in the contract" would constitute a defense to such tax bills — or, at least, evidence of such failure would serve to diminish the amount of the recovery under such bills. Charter, Art. 23, sec. 4. But with such bills being sued on by the city and the city being expressly exempted from liability in any manner for any of such work or improvement, the defense of such failure of the work is taken away. Thus, the city might pay a full price for work not done in a workmanlike manner, or not even done at all. The city might then levy such tax bills to pay the cost of the work, and the owner of property so assessed would be, it seems, estopped from charging the city with liability for such failure. Under such a state of circumstances, his property would be taken without compensation and without due process, for he would be compelled to pay for something he had never received. Such a tax would be void. "The exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation." Norwood v. Baker, 172 U.S. 279.

Julius T. Muench and Oliver Senti for respondent.

(1) Special assessments for local improvements are a constitutional exercise of the taxing power. Heman Const. Co. v. Wabash Railroad, 206 Mo. 179. The city of St. Louis is authorized by its charter to levy special assessments for local improvements. Charter, Art. 22. (2) The city of St. Louis is authorized by its charter to pay for public work out of its general revenue and reimburse itself by the issue of special assessments upon property specially benefited by such public work. Charter, Art. 24, sec. 4. (3) Taxing a citizen with his proportionate share of the cost of public work is not taking his property for a public use. Barber Asphalt Pav. Co. v. French, 158 Mo. 548; 44 C.J. 490. (4) The levy of special assessments on property specially benefited by public work does not violate the due-process clause of the State or Federal Constitution. 44 C.J. 489; French v. Barber Asphalt Pav. Co., 181 U.S. 324. (5) Special assessments may be lawfully issued against property benefited by a public improvement, although the municipality has already paid the contractor out of general revenue. Jelliff v. Newark, 48 N.J.L. 101; City of Elkhart v. Wickwire, 121 Ind. 331.

GANTT, J.

This is a suit on a special tax bill for street improvement, issued by the city of St. Louis in its own favor against real property within its corporate limits and owned by the defendant.

The benefit or taxing district was established, and the letting of a contract for the improvement of the street was authorized, by ordinances duly enacted by the city, pursuant to the provisions of its charter.

The petition, with the special tax bill attached as an exhibit, is in the usual form for the enforcement of a special tax bill issued by the city of St. Louis, for proportionate cost of construction of a street adjacent to the defendant's property. It alleges the enactment of the ordinances mentioned; the making of a contract for the improvement; the completion of the work; the defendant's ownership of the property; the issuance of the special tax bill; the particulars of the special tax bill; notice of its issuance; that demand for payment had been made, and concludes with a prayer for judgment for the amount of the bill, with interest and costs, and that the same be declared a special lien upon defendant's real estate described therein.

The defendant filed a special demurrer, which was overruled. Defendant refusing to further plead, judgment was for the plaintiff, and defendant appealed.

The special tax bill upon which this suit is based is in all respects the same as other special tax bills whose validity we have repeatedly upheld, except that, instead of being issued to the contractor in payment of the work, the city paid the contractor and issued the bill to itself, so that it might be reimbursed by the collection of the bill.

I. Defendant contends "that the enactment of the ordinances and the issuance of the special tax bill pursuant thereto are unauthorized."

We have uniformly upheld the right of a city or municipality to charge the cost of public improvements to private property in the neighborhood. In Heman Construction Co. v. Wabash Municipal Railroad, 206 Mo. 172, 104 S.W. 67, we said: "Under Power. the law of this State, as declared by the higher courts, it is well settled that special assessments for local improvements are a constitutional exercise of the taxing power (Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Paving Co. v. French, 158 Mo. 534, S.C. 181 U.S. 324), and that `it is within the power of the Legislature of the State to create special taxing districts, and to charge the cost of local improvements, in whole or in part, upon the property in said district, either according to valuation or superficial area of frontage.' [Webster v. Fargo, 181 U.S. 394; Prior v. Construction Co., 170 Mo. 439; Asphalt Paving Co. v. French, supra; Spencer v. Merchant, 125 U.S. 345; Egyptian Levee Co. v. Hardin, 27 Mo. 495.]"

Similar rulings have been made by this court so many times, both before and since the above-mentioned case was decided, that the right of the city of St. Louis to issue special tax bills against private property for public improvements when authorized by its charter is no longer open to question. Specific authority to issue special tax bills against private property for the improvement of public streets and for the establishment of benefit or taxing districts therefor, is contained in Article XXII of the Charter of the City of St. Louis. The method of issuing special assessments for public improvements under the charter and ordinances adopted pursuant thereto is governed by Article XXIII. Among the provisions of this article are the following:

"Section 1. For all special assessments for public work or improvements under this charter and ordinances adopted in pursuance thereof, special tax bills shall be prepared and signed by a person designated by the board of public service by resolution entered on its record, and shall be made payable to the parties entitled, either at the collector's office or at some bank or trust company in the city, at the option of the party so entitled. They shall be promptly registered and certified both in the office of said board and of the Comptroller by persons designated by said board and by the Comptroller respectively to make such registration and certificate, and then delivered by the Comptroller to the parties entitled and their receipts taken therefor; and the city shall not be liable in any manner for any work or improvement to be paid for in special tax bills.

"Section 4. All special tax bills shall be prima-facie evidence of what they contain and of their own validity, and no mere informality or clerical mistake in any of the proceedings leading to the issuance of or in any special tax bill shall be a defense thereto; provided, that if the work was not done in a good and workmanlike manner according to the class of work mentioned in the contract, the property charged with the payment of said bill shall be liable only for the value of such work done, and the recovery on the special tax bill shall be reduced accordingly.

"Section 5. All special tax bills shall be a first lien on the property charged therewith from the day of issuance thereof; ...

"Section 7. Special tax bills and the lien thereof may be assigned and the place of payment thereof changed to the office of the collector or to any bank or trust company in the city....

"Section 12. The city by ordinance recommended by the board of public service may, from time to time, make further provision by ordinance, not inconsistent with this charter, for special assessments, the issuance of special tax bills therefor, the collection thereof, and all matters incidental thereto."

Heretofore public improvements have been paid for in...