Estate of Collier v. Western Paving & Supply Co.

• Decision Date: 09 March 1904
• Citation: 79 S.W. 947,180 Mo. 362
• Parties: THE COLLIER ESTATE v. WESTERN PAVING & SUPPLY COMPANY, Appellant; KAUFFMAN v. WESTERN PAVING & SUPPLY COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 947

180 Mo. 362

THE COLLIER ESTATE v. WESTERN PAVING & SUPPLY COMPANY, Appellant;

KAUFFMAN v. WESTERN PAVING & SUPPLY COMPANY, Appellant

Supreme Court of Missouri

March 9, 1904

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Finkelnburg Nagel & Kirby and Adiel Sherwood for appellant.

(1) There is no equity in the bill. If the statements in the bill are true, plaintiffs have a full and complete right to make every defense at law in a suit upon the taxbills, and there is no necessity to ask equitable interference. Michael v St. Louis, 112 Mo. 614; McClanahan v. West, 100 Mo. 323; Albany Mining Co. v. Auditor, 37 Mich. 393; Winter v. City Council, 9 So. 366; Page v. St Louis, 20 Mo. 142; Heywood v. Buffalo, 14 N.Y. 506; McCormack v. Patchin, 53 Mo. 33. A court of equity will not interfere with an assessment, unless in addition to illegality, etc., plaintiff brings his case clearly within some recognized head of equity jurisdiction. Beach, Pub. Corp., sec. 1200; Railroad v. Cheyenne, 113 U.S. 525. A court of equity has no jurisdiction unless allegations of fact are contained in the petition and its jurisdiction can be shown only by facts which can be denied. Clark v. Ganz, 21 Minn. 387; Duck v. Peeler, 74 Tex. 268; Gas. Co. v. Higby, 25 N.E. 660; Shelton v. Platt, 139 U.S. 596. (2) What property shall be included in an improvement district, and how the cost of the improvement shall be assessed, that is ad valorem, by the front foot, according to benefits, or upon an area basis, or by a combination of several plans, are questions for the Legislature and not for the courts. Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112; Webster v. Fargo, 181 U.S. 394; Shumate v. Heman, 181 U.S. 402; Farrell v. West Chicago P. Co., 181 U.S. 404; Wormley v. Dist. of Columbia, 181 U.S. 402; French v. Barber Asphalt Pav. Co., 181 U.S. 324; Tonawanda v. Lyon, 181 U.S. 339; Cass Farm Co. v. Detroit, 181 U.S. 396; Carson v. Brockton Sewerage Com., 182 U.S. 398; Prior v. Buehler & Cooney Const. Co., 170 Mo. 451; Heman v. Schulte, 166 Mo. 409. (3) The true test of the validity of an act or city charter is whether all persons under like circumstances and conditions are treated alike in its operation. Magoun v. Bank, 170 U.S. 283; American Sugar Ref. Co. v. Louisiana, 179 U.S. 89; Cotting v. Kansas City Stock Yards Co., 183 U.S. 79; Railroad v. Ellis, 165 U.S. 150; Clark v. Kansas City, 176 U.S. 114; Consolidated Coal Co. v. Illinois, 185 U.S. 203; Clark v. Titusville, 184 U.S. 329; Plessy v. Ferguson, 163 U.S. 537; Townsley v. Anderson, 171 U.S. 101; State ex inf. v. Ins. Co., 150 Mo. 135; Chappell & F. Co. v. Sulphur Mines Co., 172 U.S. 474. (4) Lake avenue is properly made the western boundary of the improvement district from Lindell avenue to the southern line of the lots on the north side of Portland Place, and thence north to Delmar avenue. Lake avenue has been free, open and unobstructed for the use of the public for more than ten years, and the ground included therein has been used as a street by wagons and teams and for pleasure driving, and the sidewalks parallel thereto by pedestrians. Certainly fifteen years of use shows an acceptance of the dedication, and in addition numerous conveyances of land on both sides of Lake avenue have used Lake avenue as a boundary thereof. In addition a plat of Forest Park Addition shows Lake avenue as a highway, and this plat was filed under the provisions of the old charter, showing the intention to give the public the use thereof. Buschman v. St. Louis, 121 Mo. 523; Heitz v. St. Louis, 110 Mo. 618; Moses v. St. Louis Sectional Dock Co., 84 Mo. 242; Gamble v. St. Louis, 12 Mo. 617; Hannibal v. Draper, 15 Mo. 640; Longworth v. Sederic, 165 Mo. 221; Whyte v. St. Louis, 153 Mo. 80. (5) Plaintiffs are estopped to maintain these suits. They had knowledge of the commencement of the proceedings and of each step taken during the passage of the ordinance, the advertisement for bids, the awarding of the contract, the confirmation of the contract, and the beginning and prosecution and completion of the work. The work was commenced under the contract on July 26, 1902, and completed on October 27, 1902, and these suits were not filed until February 13 and February 14, 1903. It is admitted that plaintiffs stood by in silence and without objection or protest allowed the work to proceed, and did nothing except institute these suits. The lines of the improvement district are set forth in the ordinance under which the work was done, and plaintiffs, therefore, had full knowledge from the time the ordinance was introduced in the Municipal Assembly of the intention of the city authorities to assess their property for taxation to pay their proportionate part of the cost of the improvement and to assess that property in the manner in which it was afterwards assessed. Plaintiffs should not now be permitted to contest the validity of the assessment so made. Planet Property Co. v. Railroad, 115 Mo. 626; Hellenkamp v. City of Lafayette, 30 Ind. 192; Palmer v. Stumph, 29 Ind. 329; Lafayette v. Fowler, 34 Ind. 146; Jackson v. Smith, 22 N.E. 432; Gibson v. Owens, 115 Mo. 258; Ritchie v. South Topeka, 38 Kan. 374; Warren v. Barber Asphalt Pav. Co., 115 Mo. 580; Huling v. Bandera Flag Stone Co., 87 Mo.App. 360; Traphagen v. Mayor, 29 N.J.Eq. 209; Easton v. Railroad, 9 C. E. Green (N. J.) 57; Powers v. New Haven, 120 Ind. 185; Skinker v. Heman, 148 Mo. 349; Elliott on Roads & Streets (2 Ed.), sec. 590; Warren v. Barber Asphalt Pav. Co., 115 Mo. 580; Gibson v. Owens, 115 Mo. 567; Heman v. Ring, 85 Mo.App. 231; Barber Asphalt Pav. Co. v. Hezel, 76 Mo.App. 135 (155 Mo. 391). (6) In assessing real estate for local improvements the words "fronting upon," and "adjoining," "abutting" and "fronting" are used interchangeably and as synonyms. In re Ward, 52 N.Y. 397; State v. Railroad, 43 N. J. L. 112; Holt v. Somerville, 127 Mass. 408; Wolf v. City of Keokuk, 48 Iowa 132; Des Moines v. Dorr, 31 Iowa 93; Springfield v. Green, 120 Ill. 275; Wilbur v. Springfield, 123 Ill. 401; Byram v. Foley, 17 Ind.App. 637; Coburn v. Bassert, 13 Ind.App. 35; City of Lawrence v. Killam, 11 Kan. 511; Michener v. Philadelphia, 118 Pa. St. 538; Justices of Bedfordshire v. Comrs. of Bedford, 7 Wels. H. & G. (Exch.) 657; Newport Urban Sanitary Authority v. Graham, 9 L. R. Q. B. (1881), 183; Hughes v. Railroad, 130 N.Y. 26; People ex rel. v. Adams, Comptroller, 45 N.Y. 270; Rex v. Hodges, 1 Moody & Malkins 341; Moberly v. Hogan, 131 Mo. 19; Seibert v. Tiffany, 8 Mo.App. 33; Allen v. Krenning, 23 Mo.App. 561; Walton v. Railroad, 67 Mo. 58. A tract or lot of ground has as many "fronts" as it has sides located on different streets, i. e., a square of land fronts on four streets, a half block on three streets, and a corner lot on two streets. People ex rel. v. Adams, Comptroller, supra; Elliott, Roads and Streets (2 Ed.), sec. 555, p. 575; Cooley, Tax. (3 Ed.), p. 1222; 2 Dillon, Mun. Corp. (4 Ed.), p. 915, note; Newport Urban Sanitary Authority v. Graham, 9 L. R. Q. B. (1881), 183; Justices of Bedfordshire v. Comrs. of Bedford, 7 Wels. H. & G. (Exch.) 657; City of Lawrence v. Killam, 11 Kan. 511; Byran v. Foley, 17 Ind.App. 637; Coburn v. Bossert, 13 Ind.App. 359; Wilbur v. Springfield, 123 Ill. 401; Springfield v. Green, 120 Ill. 274; Des Moines v. Dorr, 31 Iowa 93; Morrison v. Hershire, 32 Iowa 279; Wolf v. City of Keokuk, 48 Iowa 132; Moberly v. Hogan, 131 Mo. 25; Seibert v. Tiffany, 8 Mo.App. 33; Allen v. Krenning, 23 Mo.App. 561; Wolfert v. St. Louis, 115 Mo. 139; Meyer v. Covington, 103 Ky. 545. (7) Independent of statute or charter provision requiring it, a tract of ground (whether consisting of several lots, as shown by plats or not), may be assessed for a street improvement on one side of it where the owner thereof uses it as a whole, and this may be shown by the absence of division lines, by the location of buildings, or by any other appropriate evidence; and it is sufficient if the statute or charter provide for the assessment of property benefited. City to use v. Cottage Co., 9 Phila. 84; McKeesport v. Sales, 178 Pa. St. 363 (35 A. 927); City of Chester v. Eyre, 181 Pa. St. 642 (37 A. 837); City to use v. Cadwallader, 22 W. N. C. 8; Davis v. Point Pleasant, 32 W.Va. 295 (9 S.E. 230); Wolfort v. St. Louis, 115 Mo. 144; Kemper v. King, 11 Mo.App. 128; Construction Co. v. Loevy, 64 Mo.App. 437; State ex rel. v. Essex Public Road Board, 51 N. J. L. 170; Fitzgerald v. Thomas, 61 Mo. 499.

Edward S. Robert, George C. Hitchcock and William E. Baird for respondents.

(1) By the charter of the city of St. Louis a taxbill is made a lien on the property against which it is issued, and is prima facie valid and correct as to the rate or price and the amount thereof. Art. 6, sec. 25, charter. (2) Such taxbill if invalid, constitutes a cloud on respondents' title which equity will remove. Lockwood v. St. Louis, 24 Mo. 20; Fowler v. St. Joseph, 37 Mo. 228; Leslie v. St. Louis, 47 Mo. 474; Merchants' Bank v. Evans, 51 Mo. 335; Verdin v. St. Louis, 131 Mo. 26; Hassan v. City of Rochester, 67 N.Y. 528; Ellwood v. City of Rochester, 122 N.Y. 229; Ankeny v. Minneapolis, 20 Minn. 477; Sewall v. St. Paul, 20 Minn. 511. (3) The principle on which these charter provisions should be interpreted is that the property benefited by an improvement should bear the burden, and each person should contribute in proportion to the benefit received. Lockwood v. St. Louis, 24 Mo. 22; Newby v. Platte County, 25 Mo. 258; Kansas City v. Bacon, 157 Mo. 450. (4) What property is benefited under a law relating to local improvements must be determined from an interpretation of the law as a whole, always taking into consideration the foregoing principle and the purpose and object for which such...