Garrett v. City of St. Louis

• Decision Date: 31 October 1857
• Citation: 25 Mo. 505
• Parties: GARRETT, Plaintiff in Error, v. CITY OF ST. LOUIS, Defendant in Error.
• Court: Missouri Supreme Court

25 Mo. 505

GARRETT, Plaintiff in Error,

v.CITY OF ST. LOUIS, Defendant in Error.

Supreme Court of Missouri.

October Term, 1857.

1. The second section of the act of February 23d, 1853, ^a1 amendatory of the charter of St. Louis of March 3d, 1851, is constitutional in so far as it required that in paying the value of land taken for the opening, widening or altering of a lane, alley, street, etc., the city should pay the value to the public generally of the proposed improvement, and that the balance should be assessed “against the owner or owners of the property fronting on such lane, alley, street, avenue, wharf or square, and in the blocks next adjacent, on either side or end thereof, according to the value of the property so assessed, and in the proportion that the owners thereof may be respectively benefited by the proposed improvement.”

2. Such assessments against adjacent owners, in respect of the benefits received by them from the opening, widening or altering a street, etc., are a constitutional exercise of the taxing power.

Error to St. Louis Land Court.

This was an agreed case submitted to the St. Louis Land Court under article 20 of the Practice Act of 1849. The following is the agreed case as submitted: “The following facts are agreed upon between Peter Garrett, as plaintiff, and the city of St. Louis as defendant, and hereby submitted to the judge of said court for his decision thereon, which it is hereby agreed shall be entered as the judgment of the court, from which either party may appeal to the Supreme Court of the state. Under the charter, acts of the Legislature, and ordinances of the city of St. Louis, the mayor was required to open Main street, and, in order to do so, to condemn whatever property it was necessary to take for that purpose; and on the 22d day of November, 1853, a jury was empannelled, as the law directs, to assess the value of the land so taken, who found that the land of said Peter Garrett, so taken to widen said street, was worth, without reference to the proposed improvement, the sum of $768.45, and that the buildings on the land so taken were worth $1,440--making in the aggregate the sum of $2,208.45. The same jury proceeded, according to the statute and ordinances in such case made and provided, to assess the benefits derived by property holders adjacent to said improvement, and they found that the lot of land belonging to said Garrett--off which the land valued as above stated at $768.45 [was taken]--was benefited to the amount of $763; so that, when he demands his money awarded to him by the jury, the city of St. Louis refuses to pay unless the benefits assessed against his lot are deducted, which would leave coming to him $1,445.45. He contends that the city should pay him the full amount of the value of the land and improvements, and insists that the assessment of benefits is unconstitutional and void, and not in any way binding on him. It is further agreed that the said Garrett, at the time of the trial, insisted that the assessment of benefits as against him was unjust, illegal and unconstitutional, and protested against its being done. The city says it is legal and constitutional, and that it should be deducted from the amount at which his property was valued. The question now referred to the court is whether the assessment of benefits under the law is unconstitutional; and if the court find it is, then let a judgment go against the city for only the sum of $1,445.45, and the judgment for costs against said Peter Garrett. The question of interest in the [this] event is referred to the court. If the court find that the assessment of benefits under the statute is unconstitutional, and, therefore, illegal, the judgment shall be rendered against the city for the full amount of $2,208.45 and the costs.”

The court rendered judgment against the city of St. Louis, in favor of Garrett, for $1,445.45, with interest from November 22d, 1853, and against the plaintiff, Garrett, for the costs. The court overruled a motion for a review, made in behalf of plaintiff, Garrett.

Hudson & Thomas, for plaintiff in error.

I. So much of the act of February 23d, 1853, as authorizes the assessment on benefits is unconstitutional. (Constitution, art. 13, sec. 7; 2 Dall. 310; The People v. Mayor of Brooklyn, 6 Barb. 200; 5 Dana, 28; Rice v. Turnpike, 7 Dana, 81.)

Bay (city counsellor), for defendant in error, cited 3 Watts, 292; 13 Pick. 60; 1 Green, 196; 1 Louis. 1; 8 Wend. 85; 15 Wend. 376; 24 Wend. 65; 7 Hill, 9, 23; 14 Ohio, 541; 5 Blackf. 384; The People v. Mayor of Brooklyn, 4 Comst. 420; Newby v. Platte County, 25 Mo. 258.

NAPTON, Judge, delivered the opinion of the court.

The only question in this case is the constitutionality of the second section of the amended charter of St. Louis, passed February 23d, 1853. This section, among other provisions, authorizes the city council to open a street; and when for this purpose it becomes necessary to take private property, it provides the following mode of ascertaining the compensation: After notice to the owner, the mayor is directed to empannel a jury, whose duty it is made to ascertain the actual value of the land proposed to be taken, without reference to the proposed improvement. To pay the sum thus ascertained, the city is taxed in an amount equal to the value of the improvement to the public generally, and the remainder is assessed against the property fronting on such street, and in the blocks next adjacent, on either side or end thereof, “according to the value of the property so assessed, and in the proportion that the owners thereof may be respectively benefited by the improvements.” Where, under this provision, the entire lot is taken for the street, it is plain that nothing more has been done than an exercise of the right of eminent domain, and in a mode in strict conformity to the constitution. The owner of the lot taken has no cause for dissatisfaction, since he is paid the full actual value of his lot; and the means adopted by the city to raise the funds for this payment are a matter of indifference to him. But where the entire lot is not taken, or where the owner has other land on the same street, the question arises whether he can be compensated in the mode provided by the charter.

That this assessment upon the lot owners fronting on the street is an exercise of the taxing power seems too plain to admit of argument. Whether it is a bona fide, legitimate and constitutional exercise of that power is the matter to be considered; but that it is an attempt to exert this taxing power, and not the power of eminent domain, may, I think, be assumed. In the case of Newby v. Platte County, this court held that the assessment upon land owners, whose lands were taken under our railroad laws, for sums proportioned to the benefit they received from the road, was an exercise of the taxing power; and without meaning to express any concurrence in or dissent from this view, it is clear that the position assumed in that case necessarily includes the assumption we have just made. The views entertained in that case were attended with difficulties which do not embarrass this. If the assessment for benefits in the case of the railroads was an exercise of the taxing power, then the tax was levied only upon those whose lands were taken, and not upon other lands abutting on the line of the roads where no part of them was taken by the companies. Here the assessment is upon all who own property on the street, whether any part of their property is taken for the improvement or not.

It is admitted on all hands that the power of taxation is confided to the legislative department of the government; and the manner in which it is to be exercised, the persons and things upon which it is to operate, are left entirely to the discretion and judgment of the Legislature, except where the constitution has imposed restraints. The only provision on this subject in our constitution is “that all property subject to taxation in this state shall be taxed in proportion to its value.” There is another provision in relation to property of the United States, but that has no bearing on the question now under consideration.

It may be doubted whether this provision of our constitution, requiring an ad valorem tax upon property when property is the subject of taxation, was designed to apply to local assessments for local purposes; whether it was not intended as a restraint upon the Legislature only in passing general revenue laws. But waiving this question for the present, and conceding that the restriction applies to every kind of taxation upon property, it still remains to be considered whether the local assessment here disputed is a tax upon property within the meaning of the restrictive clause referred to, and, if it is, whether the constitutional injunction has been disregarded in the provisions of the St. Louis charter.

This nineteenth section of our bill of rights does not deprive the Legislature of any power of taxation, nor does it confer any. That department of the government possesses every species of taxing power with or without this clause. What shall be selected by the Legislature as objects of taxation is as much within the discretion of that body, with this provision in the constitution, as it would have been without it. Where the Legislature do, however, undertake to exercise one branch of the taxing...