City of St. Louis v. Richeson

• Citation: 76 Mo. 470
• Parties: THE CITY OF ST. LOUIS v. RICHESON et al., Appellants.
• Decision Date: 31 October 1882
• Court: Missouri Supreme Court

76 Mo. 470

THE CITY OF ST. LOUIS

v.RICHESON et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Marshall & Barclay for appellants.

The charter in so far as it permits “benefits” to be assessed by special tax-bills, in street opening proceedings, against the property of persons who have no notice of the proceedings, and no opportunity to be heard therein, is clearly unconstitutional and void. Charter, art. 6; 2 R. S. 1879, pp. 1606, 1607, § 2 et seq; Stuart v. Palmer, 74 N. Y. 183; Mo. Const., art. 2. §§ 30, 21; State v. City, 67 Mo. 113; State v. Jersey City, 4 Zabr. (24 N. J. L.) 662; Ray Co. v. Barr, 57 Mo. 290. Even the power of general taxation (and a fortiori of special taxation) cannot be lawfully exercised without an opportunity to those whose property is affected thereby to appear and be heard on the subject, before the tax becomes a lien on their property. Cooley on Taxation, p. 266; Abbott v. Lindenbower, 42 Mo. 162; Darling v. Gunn, 50 Ill. 424; Butler v. Supervisors, 26 Mich. 22. The charter (in the particular we are considering in this case) is in conflict with the United States Constitution as well as that of Missouri. To fix a conclusive (Cooley on Tax., pp. 450, 460; Potosi v. Casey, 27 Mo. 372), lien upon real estate (which can only be released by payment), without notice to the owner or opportunity given him to be heard in regard to the justice or amount of the lien, amounts to the taking of property without due process of law. U. S. Const., Amendments 5 and 14; Stuart v. Palmer, 74 N. Y. 183; s. c., 30 Am. Rep. 289; Davidson v. New Orleans, 96 U. S. 97; Clark v. Mitchell, 64 Mo. 564.”

The charter (art. 6, § 2) requires as parties in these cases two classes of defendants, viz.: 1st, The owners of the land taken for the street, and 2nd, The owners of all “parcels of land embraced in the proposed improvement;” that is to say, the owners of the land within the area improved or benefited by the opening, or (as expressed in the last sentence of the same section) “affected” by the improvement. Of course the city counselor, in the first instance, should--under this construction--include all persons likely to be thus assessed for the improvement, and the commissioners (§ 5) will afterward assess as many or as few of those thus brought in, as they may consider actually benefited.

To give section 2 a construction restricting the defendants to those only whose land is taken, and omitting those whose land is “affected” or benefited, would result (when read in connection with section 5) in sanctioning the assessment of benefits for the improvement against persons not parties to the proceeding nor notified thereof. It will never be presumed that such a result was intended unless the law be remarkably clear. State v. Commissioners, 41 N. J. L. 83. The owners of lands to be assessed for local improvements are entitled to notice of the meeting of the commissioners. State v. Commissioners, 41 N. J. L. 83; State v. Jersey City, 24 N. J. L. 662; Nashville v. Weiser, 54 Ill. 245. There is no escaping the conclusion that the charter provision is unconstitutional as authorizing the taking of property without due process of law, unless it can be held that the assessment of the commissioners is not final. But this position cannot be maintained, because (1) The charter assumes to make the commissioners the sole judges of the benefits, by providing that the assessment shall be the amount of benefit “in the opinion of the commissioners,” and further that “the sums to be paid by the owners of property specially benefited by the improvement, as ascertained by the commissioners, shall be a lien on the property so charged, and shall be collected as provided by ordinance.” Art. 6, § 5. Clearly showing that the amount of the lien is finally determined by the commissioners, and only the form and manner of its collection is to be regulated by ordinance. State v. Commissioners, 41 N. J. L. 83. (2) The general rules for the government of statutory powers prescribe that such duties as are performed by these commissioners are, by their nature, not the subject of review, as to the amount of assessment. Strusburgh v. N. Y., 45 N. Y. Sup. Ct. 508; Hilliard on Tax., pp. 368, 378, 379; In re Central Park, 61 Barb. 40; Piper's Appeal, 32 Cal. 530; Martin v. Mott, 12 Wheat. 31. (3) The assessment of benefits is only sustained in any case, by the courts as a branch of the taxing power which belongs to the legislative department of the government. Uhrig v. City, 44 Mo. 458; State v. City, 62 Mo. 244; Dillon Munic. Corp., (2 Ed.) § 588. Hence the courts do not possess the power of reviewing the exercise of such taxing power by the commissioners (assuming the proceedings have been regular) any more than they would have the power to review the justice (in respect to amount) of a general tax assessment on which a tax-deed to land, sued for in the courts, might be founded. The taxing power cannot be exercised, directly or indirectly, by the judiciary. Const. 1875, art. 3, § 1; Taylor v. Secor, 95 U. S. 575; Hardenburgh v. Kidd, 10 Cal. 402; Heine v. Commissioners, 19 Wall. 655; Cooley on Taxation, 34. This being clearly so, the suit on the tax-bill can only be regarded as a method for collecting (not assessing or determining) the tax, and so the city charter treats it. Charter, art. 6, § 5.

Leverett Bell for respondent.

Under the system governing street openings, as established by the charter of St. Louis, parties owning property assessed with benefits are not made defendants in the proceeding nor served with process, unless some part of the property is taken for the improvement. Where the only action touching a specific piece of property is the assessment of benefits, it is regarded as an exercise of the right of taxation, and no notice is required to be given to the owner of the pendency of the proceeding. But if the property, or any part of it, is to be taken for the improvement, the power exercised is that of eminent domain, and the law requires the owner to be made a party defendant, and served with process, and afforded an opportunity to defend. McMillen v. Anderson, 95 U. S. 41; Davidson v. New Orleans, 96 U. S. 104; Weimer v. Bunbury, 30 Mich. 201; In re De Peyster, 80 N. Y. 565; People v. The Mayor,4 N. Y. 419; Howell v. Buffalo, 37 N. Y. 267; People v. Lawrence, 41 N. Y. 137; In re Van Antwerp, 56 N. Y. 261; In re Lands in Flatbush, 60 N. Y. 398; In re Zborowski, 68 N. Y. 96. The doctrine of these cases is, that the constitutional limitation as to “due process of law,” has no application to the exercise of the power of taxation. High v. Shoemaker, 22 Cal. 363; Matter of the Trustees, 31 N. Y. 579; Newby v. Platte Co., 25 Mo. 258; People v. Hagar, 49 Cal. 232. That special assessments “are an exercise of the taxing power,” says Judge Cooley in his work on Taxation, page 430, “has over and over again been affirmed, until the controversy must be regarded as closed.” Assessments made for benefits conferred by local improvements are a valid exercise of the taxing power. Garrett v. St. Louis, 25 Mo. 505; Palmyra v. Morton, 25 Mo. 593; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. Anthony, 30 Mo. 537; St. Joseph v. O'Donoghue, 31 Mo. 345; State, etc., v. St. Louis, 62 Mo. 244; St. Louis v. Speck, 67 Mo. 403; Uhrig v. St. Louis, 44 Mo. 458. Under the law construed in Stuart v. Palmer, 74 N. Y. 183, the property owner, unless notified, had no opportunity to defend, whereas under the charter of St. Louis the special tax-bill can only be enforced by an action in a court of competent jurisdiction in which the property owner is a necessary party defendant, and his property cannot be disturbed save by the judgment of the court. And in an action of this character the property owner may show that the ordinance authorizing the improvement was unnecessary and oppressive, and thus defeat a recovery on the special tax-bill. Corrigan v. Gage, 68 Mo. 541. Until the commissioners' report is made, it is not known what property is benefited by the improvement, nor the owners thereof. It is impossible to make such parties original defendants in the proceeding; and it is unnecessary to join them as defendants at any subsequent stage, because they have full opportunity to be heard in the suits instituted on the special tax-bills, and to defend against the same.

RAY, J.

This is a suit to enforce the payment of a special tax assessed against a lot of the defendants, in the city of St. Louis, which, as alleged, is especially benefited by certain improvements, authorized by the city under its charter, and which assessment, by its charter, is made a lien upon the property so charged. The assessment was made in the course of certain proceedings in the St. Louis circuit court, authorized by its charter for that purpose, and entitled: “The City of St. Louis, plaintiff, against D. Signiago et al., defendants.” The provisions of the charter authorizing such proceedings are found in sections 2, 3, 4, 5, 6 and 7 of article 6 of the city charter and are to the following effect: Section 2 provides that the city counselor, in the name of the city of St. Louis, shall apply to the circuit court of the eighth judicial circuit, by petition, setting forth the general nature of the improvement to be made, the names of the owners of the several lots or parcels of land sought to be taken, and praying the appointment of three disinterested commissioners to assess the damages which said owners may severally sustain by reason of the appropriation and condemnation of such real estate by the city for such purpose, to which petition the owners of all such lots or parcels of land embraced in the proposed improvement shall be made parties defendant by name.

Section 3 requires that upon the filing of such petition a summons shall be issued giving such defendants at least ten days' notice of the time when such petition...