City of St. Louis ex rel. Creamer v. Clemens

Decision Date31 March 1873
Citation52 Mo. 133
PartiesCITY OF ST. LOUIS, to use of JAMES CREAMER, Respondent, v. JAMES CLEMENS, Appellant.
CourtMissouri Supreme Court

Glover, Shepley and Gardner, for Appellant.

I. The ordinance of the City of St. Louis, No. 6001, is invalid in that it did not give the position, extent or direction of the sewer intended to be established.

II. The ordinance is invalid because it did not prescribe the dimensions of the sewer intended to be constructed. (City of St. Louis, to the use of Murphy vs. Clemens, 43 Mo., 395.)

III. The ordinance was invalid and the original assessment for the purpose of meeting the expenses thereby caused is in valid. And therefore the act of the General Assembly passed in 1870, is retrospective and void.

This is no tax, but it is an assessment upon adjoining property for the construction of public works benefiting the particular property. (Lockwood vs. City of St. Louis, 24 Mo., 20; 11 Johns., 77; Sheehan vs. The Good Samaritan Hospital, 50 Mo., 155.)

There was no lien or any obligation upon the plaintiff o his property for the cost of this sewer at the time this act o March 21, 1870, was passed.

This law of 1870 does not give a municipal corporation a power to levy a tax, but gives a private individual a right which he did not possess, and takes away from the appellant a defense that was perfect before the act was passed.

This act is retrospective legislation and is prohibited by the Constitution. (Const., Art. 1, § 28; Hope Mut. Ins. Co. vs. Flynn, 38 Mo., 483.; Sedgwick on Stat. and Co. Law, 158.)

The cases from New York and Pennsylvania do not apply to this case because the constitutions of those States contain no prohibitions against retrospective laws.

Samuel Reber, for Respondent.

This is a tax, and taxes may be imposed before, at the time, or after the debt or liability to be paid is created. And this is true of special or corporation taxes as well as of general taxes. (Meech vs. City of Buffalo. 29 N. Y., 198; Wetmore vs. Campbell, 2 Sandford, 341; Charter City of St. Louis, Sess. Acts 1867, p. 75.)

The question involved in this case has been decided in Howell vs. the City of Buffalo, 37 N. Y., 267-272; Brewster vs. City of Syracuse, 19 N. Y., 116; Meech vs. City of Buffalo, 29 N. Y., 198; Town of Guilford vs. Supervisors of Chenango Co., 13 N. Y., 143; 2 Sandford, S. C., 341; Dillon on Municipal Corporations, Sec. 652; Cooly on Con. Lim, 209-496 et seq. 2d Ed., Schenley vs. The Commonwealth, &c., 36 Penn. State, 29; Hines vs. Leavenworth, 3 Kansas, 186.

As to retrospective law, see Cooly Con. Lim, 2 Ed., p. 369 et seq. and cases cited; particularly, 6 Yerger, 125; 37 N. H., 304; 4 Texas, 474,-5; 7 Humphreys, 130.

The following additional cases illustrate the nature of the taxing power, &c: State, &c., vs. Linn County, 44 Mo., 504; State, &c., vs. Dulle, 48 Mo., 282; Steines vs. Franklin County, 48 Ibid, 167; North Mo. R. R. vs Maguire, 49 Mo., 490; The City vs. Lamson, 9 Wallace, 477; Litchfield vs. Vernon, 41 N. Y., 133-137; People, ex rel. vs. Lawrence Ibid, 137.

VORIES, Judge, delivered the opinion of the court.

This action was commenced in the St. Louis Circuit Court to enforce the collection of a special tax-bill assessed against the appellant's property for the construction of a district sewer in the City of St. Louis.

On the 24th day of January, 1867, the city council of the City of St. Louis passed an ordinance by which it is provided that a sewer district denominated “Green Street Sewer District shall be established, and that the city engineer shall cause sewers to be constructed within said district, said sewers to be constructed with such material, and of such dimensions as the city engineer should deem to be requisite.

The ordinance also directed the manner in which the cost of constructing sewers in said district should be assessed against the property in the vicinity, and collected from said property or the owner thereof.

The ordinance was passed under the act to revise the charter of the city which was passed by the legislature on the 19th day of March, 1866, by which it is provided that “the city council shall cause sewers to be constructed in said district whenever a majority of the property holders resident therein, shall petition therefor, or whenever the city council may deem such sewer necessary for sanitary or other purposes; and such sewer shall be of such dimensions as may be prescribed by ordinance and may be changed, enlarged or extended, and shall have all the necessary laterals, inlets and other appurtenances which may be required.

The City Engineer under the above named ordinance contracted with Jas. Creamer, for whose use this suit was brought, to do the work in constructing this sewer, for which the assessment was made against the property of appellant, and for which suit is brought. The contract under which the work was done, was entered into between the city and Creamer on the 30th day of March, 1867.

It is admitted that the work was completed under the contract, and an assessment made. A tax-bill issued for about the same amount and for the same work, under the law as it existed prior to the act of March 21st, 1870. The tax-bill sued on is for $440 38-100, and is admitted to be in due form, and it is indorsed thereon that it was issued under the act of re-assessment, approved March 21st, 1870. It is admitted by the parties, as appears by the bill of exceptions, that the special tax-bill sued on was a re-assessment under the act of March 21st, 1870 printed on page 456 and following of laws of Missouri 1870 and that said act may be read as a part of the case without being copied into the Bill of Exceptions.

No question is made in this case as to either the pleadings or the evidence, but the questions presented to this court are purely questions of law.

The defendant, after the close of the evidence, moved the court to declare the law to be as follows:

1st. “The court declares the law to be that under the issues and evidence in the case, the plaintiff is not entitled to recover.”

2d. “If the sewer in question was constructed and completed and an assessment made for the cost thereof under an ordinance, and statute or statutes existing prior to the passage of the act approved March 21st, 1870, referred to in plaintiff's petition, and under which the alleged re-assessment was made upon which plaintiff now seeks to recover in this action, and if said act imposes upon defendant any obligation, or liability for which he was not bound or liable, or created any new bar to any defense, the defendant might have had to the claim if sued upon before the passage of that act, then it is retrospective or retroactive, and defendant cannot be made liable under the same.”

3d. “The City of St. Louis as a municipal corporation must act strictly within the power confered by its charter, and if in establishing or constructing the sewer in question the said corporation, its agents or servants failed to conform to the provisions of its charter, or exceeded the powers conferred, then said defendant is not liable for the construction of said sewer, and the plaintiff cannot recover in this action.”

4th. “If the act, referred to in plaintiff's petition, approved March 21st, 1870, under which the alleged re-assessment for the cost of the sewer in question was made, and upon which plaintiff now seeks to recover, imposes upon defendant any new obligation or liability, or creates any new bar to any defense the defendant might have had to the claim, if sued upon before the passage of that act, then it is retrospective or retroactive and defendant cannot be made liable under the same.”

5th. “The power to establish sewer districts and to construct public sewers in the City of St. Louis is a trust delegated to the city as a municipal corporation, and which said corporation cannot delegate to other parties or persons. If therefore, ordinance No. 6001, purporting to be an ordinance to establish Green Street Sewer District, No. 2” and to provide for the construction of sewers therein (under which the sewer in question was constructed,) failed to prescribe the dimensions of the sewers to be built in said district, but left the same to the discretion of the City Engineer, said ordinance was illegal and void, and plaintiff cannot recover of defendant for work done under the same.”

These instructions or declarations of law were all refused, and no instructions given; to this action of the court, defendant excepted. The court then rendered judgment in favor of plaintiff against appellant for the amount of the tax-bill and interest, to be levied of the property assessed, &c.

After judgment was rendered appellant filed a motion for a new trial, and set out as causes, that the verdict is against the law; that it is against the evidence. That the court erred in refusing legal and proper instructions asked by the defendant and because the verdict is against both law and the evidence and should have been for the defendant.

The court overruled this motion and rendered a final judgment against the defendant, from which he appealed to the general term of the St. Louis Circuit Court, where the judgment rendered by the special term was affirmed, from which last judgment defendant appealed to this court.

This case comes here to be reviewed upon questions of law growing out of what are the admitted facts in the case. The only question for consideration, and upon which the decision in this court must turn, is as to whether the plaintiff can recover against the defendant by virtue of the act of the General Assembly of this State passed or approved March 21st, 1870, to authorize a re-assessment of the defendant's property for work done before the passage of the act and under a different law.

That the ordinance under which the work sued for was done, authorizing the construction of sewers “of such dimensions and of such materials, as may be deemed requisite by the City Engineer, “is not...

To continue reading

Request your trial
45 cases
  • Ruckels v. Pryor
    • United States
    • Missouri Supreme Court
    • July 6, 1943
    ...155, 177 Atl. 449; State of Mississippi v. Johnson, 71 U.S. 475; Ruggles v. Collier, supra; St. Louis v. Clemens, 43 Mo. 395; St. Louis v. Clemens, 52 Mo. 133; Meill v. Gates, 152 Mo. 585; St. Louis v. Russell, 116 Mo. 248; St. Louis v. Howard, 119 Mo. 41. (7) A declaration of necessity by ......
  • State ex rel. City of Excelsior Springs v. Smith
    • United States
    • Missouri Supreme Court
    • April 29, 1935
    ... ... Nevada, 281 S.W. 56; State v. O'Rear, 210 ... S.W. 392; Halbruegger v. St. Louis, 262 S.W. 379; ... Dysart v. St. Louis, 11 S.W.2d 1044; Fagen v ... Hoboken, 88 A. 1027, 85 ... Mo.App. 599; Thompson v. Boonville, 61 Mo. 282; ... Ruggles v. Collier, 43 Mo. 353; Creamer v ... Clemens, 52 Mo. 133; McQuiddy v. Brannock, 70 Mo.App ...           ... ...
  • The State ex rel. Orr v. Kearns
    • United States
    • Missouri Supreme Court
    • July 31, 1924
    ...v. Zausch, 227 Mo. 406; Bartlett v. Ball, 142 Mo. 28; Reed v. Swan, 133 Mo. 100; State ex rel. v. Wofford, 121 Mo. 61; City of St. Louis v. Clements, 52 Mo. 133; Co. v. Flynn, 38 Mo. 438; Fowler v. City of St. Joseph, 37 Mo. 228; Cunningham v. Gray, 20 Mo. 170; Deland v. Platte County, 54 F......
  • State ex rel. Reynolds v. Jost
    • United States
    • Missouri Supreme Court
    • April 12, 1915
    ... ... (4) The commissioner's findings that the ... departments of the city need the sums apportioned to them and ... that the sum of $ 650,000 could ... 107 N.C. 110; State ex rel. v. Mason, 153 Mo. 58; ... St. Louis v. Shields, 52 Mo. 350; Kirby v ... Shaw, 18 Pa. St. 258. (7) The ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT