Cornet v. St. Louis County

• Decision Date: 08 April 1922
• Docket Number: No. 22423.,22423.
• Citation: 240 S.W. 107
• Parties: CORNET et al. v. ST. LOUIS COUNTY.
• Court: Missouri Supreme Court

240 S.W. 107

CORNET et al. v. ST. LOUIS COUNTY.

No. 22423.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit by Henry A. Cornet for himself and such other persons similarly situated as should join him as plaintiffs against St. Louis County. Judgment for plaintiffs, and defendant appeals. Affirmed.

This is a suit in equity instituted in said court by Henry A. Cornet for himself and such other persons similarly situated as should join him as plaintiffs, to remove a cloud upon the title of certain lands in what is designated as the St. Louis county joint sanitary sewer district No. 1 in said county. The cloud complained of consists of certain proceedings under an act of the Legislature entitled:

"An act authorizing the county court in counties in this state, now or hereafter having a population of more than 100,000 inhabitants and less than 200,000 inhabitants, in which there is no city having 25,000 inhabitants or more, to establish sewer districts, or joint sewer districts and construct sewers therein, condemn property and issue special tax bills for the payment of the whole cost of same and to authorize the county court in such counties and any one or more cities, towns and villages in said counties, or two or more cities, towns or villages in said counties to jointly establish joint sewer districts, construct sewers therein, condemn property and issue special tax bills for the payment of the whole cost of same." Approved April 10, 1917. Laws 1917, p. 213.

The petition states, in substance: That on the 22d day of June, 1918, the plaintiff was the owner of about 11 acres of land in St. Louis county; that on said day the defendant St. Louis county instituted a suit In the circuit court of said county against Henry S. Blest and others returnable to the September term, 1918, of said court to condemn the right of way for a sewer over and upon the lands in said county in said suit described, situated in joint sanitary sewer district No.:, and a connection of such sewer with the sewer system of the city of St. Louis, and to assess and adjudge damages for the property to be appropriated and the sewer connections to be made, and to assess benefits against the property within the benefited district for the purpose of paying for the property appropriated and the sewer connection to be made. That in said suit such proceedings were had that on the 21st day of July, 1919, Edward S. Hart, Wm. A. Straub, and Henry Schulz were appointed commissioners to assess the damages and benefits in the benefited district described in the petition, and on the 11th day of August; 1919, said commissioners filed in said cause a report in which they stated that they found and determined that for the sewer rights of way or easements, in view of the fact that the construction of such sewer would take the sewerage off said lands and out of the natural water courses across the same, there would be no damage to said property, but a benefit thereto.

They further found: That it was necessary to condemn connections with the River Des Pares foul water sewer in the city of St. Louis, and that a reasonable compensation to the city for such connection was $8 per acre for the land contained in the sewer district, being a total amount of $19,132.32, and that the cost of title examinations, computation of areas, assessing benefits, and all other work necessary to condemn rights of way or easements was $9,028.68, and they estimated that the persons owning land in the sewer district would be benefited by the taking of the property for sewer rights of way and connections with the River Des Peres foul water sewer, and assessed each square of 100 square feet of land in said district exclusive of public highways at the rate of 2 7/10 cents amounting to $28,161, consisting of the above-mentioned items. That said assessment upon plaintiff's land amounted to the sum of $116.06, being at the rate of 2 7/10 cents per square of 100 square feet, ascertained by dividing the total area of the district exclusive of highways by said amount of $28,161, but that the said commissioners did not determine, and never did determine, the value of the property to be appropriated for sewer purposes in said district, for the payment of which the plaintiff's property was assessed benefits, and never did apportion the sum to be paid for the property to be condemned and the amount allowed for sewer connections among the various lots or pieces of ground within the benefited district according to the actual benefits which would accrue to each. That on August 25, 1919, the clerk of said circuit court filed in said cause a report, stating that such commissioners had, on August la, 1919, filed their report to which no exceptions had been filed, and that no request for a jury trial had been filed; and said clerk further reported that the sums allowed as damages to the city for property and sewer connections and the cost of proceedings by the commissioners as had been stated, amounting to $28,161, together with the further sum of $6,953.30, the cost of the condemnation proceedings, amounted in all to the sum of $35,114. That said report of said clerk stated in all a charge against said lands of plaintiff in the sum of $117.32 for benefits and costs, being the amount of benefits assessed by said commissioners, plus $1.16 assessed by said clerk as costs in said cause, by dividing the total amount of said costs by the number of persons owning property in said benefited district. The petition then proceeds:

"And plaintiff states that the county court of St. Louis county did not, at the end of each month, and never did, pay by warrant drawn on the county treasurer, or otherwise, the cost of engineering, inspecting, attorney's fees, examination of titles, and other necessary expenses and the judge of the circuit court did not allow a reasonable compensation to the commissioners and court officials."

That on the 2d day of September, 1919, the sewer commissioners filed in the office of the clerk of said court its confirmation of said report, which is set out in full in the petition, and not necessary to be repeated in this statement. Continuing, the petition states that on the next day (September 9, 1919) the court entered judgment in accordance with the said report of the clerk, ordering and adjudging that the said sum of $117.22 be made a special lien upon the said property of plaintiff, and that a special fieri facias issue against plaintiff's said land.

The petition then charges that said judgment is illegal or void for the following reasons:

"(1) The act approved April 10, 1917, hereinbefore described and under which said judgment was rendered, is unconstitutional and void, in that it deprives persons of their property without due process of law, and does not give the owner of land assessed for benefits any right to a day in court by providing for special executions without the issuance of tax bills and without notice to defendants, and because said act permits both the assessment and collection of taxes in a single suit, and because said act vests the circuit court with the governmental function of levying taxes, all in violation of section 30, article 2, of the Constitution of Missouri.

"(2) Because all of the allegations of the petition in said cause No. 30443 are based upon the act of the Legislature approved April 10, 1917, above described, and the authority, if any exists, for the rendition of said judgment in said cause, is founded upon the provisions of said act, and said act is unconstitutional and void for the reason that it is a special and local act regulating the affairs of counties and cities in violation of paragraph 2 of section 53 of article 4 of the Constitution of Missouri, and is a local or special law, where a general law can be made applicable in violation of paragraph 32 of section 53 of article 4 of the Constitution of Missouri.

"Said act is unconstitutional and violates said paragraph 2 of section 53, article 4 of the Constitution of Missouri, for the reason that it undertakes to limit the application of said act to counties, in which there was no city containing 25,003 inhabitants or more, at the time of the taking effect of the said act.

"(3) Because said act approved April 10, 1917, does not apply to St. Louis county, and no provision is made in said act for ascertaining the population of cities which might or might not contain 25,000 inhabitants or more, at the time of the taking effect of said act, or at any other time.

"(4) Because by said act the number of classes of cities is made to exceed four, and certain powers are given to a city or cities and not possessed by other cities of the same class, in violation of section 7, article 4, of the Constitution of Missouri.

"(5) Because the subject of said act is not clearly expressed in its title, and said title in misleading, in violation of section 28 of article 4, of the Constitution of Missouri, in this, the title to said act recites that special tax bills are to be issued for the whole cost of organization, construction of sewers, etc., and section 22 of said act provided for special execution at the instance of any party, without naming any owner of property, and provides for a sale under said special execution without the issuance of tax bills, and without the mention of special executions in the title of the act.

"(6) Because the petition in said cause No. 30443 asked for the assessment of benefits against the property within the benefited district solely for the purpose of paying for the property appropriated and the sewer connection to be made, whereas, said assessments were made for the purpose of paying for title examinations, engineering, expenses, and court costs, and judgment therefor rendered, as well as for the purpose of paying for property appropriated and for sewer connections.

"(7) Because...