Gast Realty, & Investment Co. v. Schneider

• Decision Date: 18 December 1922
• Docket Number: No. 23134.,No. 23107.,No. 23101.,23101.,23107.,23134.
• Citation: 246 S.W. 177,296 Mo. 687
• Court: Missouri Supreme Court
• Parties: GAST REALTY, & INVESTMENT CO. v. SCHNEIDER. INDEPENDENT BREWERIES CO. v. SAME. SCHNEIDER v. GAST REALTY, & INVESTMENT CO. et al.

246 S.W. 177

296 Mo. 687

GAST REALTY, & INVESTMENT CO. v. SCHNEIDER.

INDEPENDENT BREWERIES CO. v. SAME.

SCHNEIDER v. GAST REALTY, & INVESTMENT CO. et al.

No. 23101.

No. 23107.

No. 23134.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Motion for Rehearing Denied December 39, 1922.

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

Separate actions by the Gast Realty Investment Company and by the Independent Breweries Company against Sophia Schneider, and by Sophia Schneider against the Gast Realty & Investment Company and others. From judgments for plaintiffs in the two first-mentioned cases and for defendants in the last-mentioned case, Sophia Schneider appeals. Affirmed in all cases.

Rodgers & Koerner and Anderson, Gilbert & Wolfort, all of St. Louis, for appellant.

Holland, Rutledge & Lashly, of St. Louis, for respondents.

ELDER, J.

Causes numbered 23101 and 23107 are actions to cancel certain special tax bills issued by the city of St. Louis for the reassessment of an area tax levied for the paving of North Broadway in said city. Cause numbered 23134 is an action to enforce similar special tax bills. All of the tax bills concerned were issued pursuant to an act passed by the General Assembly in 1917 (Laws of Missouri 1917, page 391), now sections 8661 to 8667, inclusive, of the Revised Statutes of 1919. Substantially the same facts being involved in the three cases, they have been briefed and argued together. We shall therefore dispose of them as one.

Adverting to the facts, it appears that on July 24, 1907, an ordinance providing for the improvement of Broadway and the levying of a special tax to pay therefor was passed by the municipal assembly of the city of St. Louis and approved. On October 23, 1907, a contract for the work was entered into between the city and the Schneider Granite Company. In the year 1908 the work was begun and completed in conformity with the ordinance and contract. On January 12, 1909, the street commissioner certified that the work was completed, and, on February 8, 1909, special tax bills for the amount of the contract price were issued to and accepted by the Schneider Granite Company.

The charter of the city, in force at the time the work was done and the tax bills were issued, provided that a line should be drawn midway between the street improved and the next parallel or converging street, which line should be the boundary line of the district, and that one-fourth of the special tax levied should be levied upon the property fronting on the street improved, in proportion to its frontage, and three-fourths upon all property lying between the street improved and said boundary line, in proportion to its area. Pursuant to this provision a frontage tax was levied on all abutting property and au area tax on all other property within the district determined in the manner above mentioned. Respondent Gast Realty & Investment Company at that time owned a large unsubdivided tract fronting more than 1,000 feet on Broadway and running westwardly to Church Road, the next street on the west parallel with Broadway and about 1,000 feet distant therefrom. The district line was drawn midway between Broadway and Church Road, or some four to five hundred feet back from Broadway. To the south there were several small irregular tracts in which the depth varied from 38 to 105 feet over a frontage of several hundred feet. To the east of Broadway the boundary line of the district varied from 150 to 240 feet.

Respondent Gast Realty & Investment Company refused to pay the bills assessed against its property and suit was brought thereon by the Schneider Granite Company. This court affirmed a judgment of the circuit court of the city of St. Louis in favor of the granite company (259 Mo. 153, 168 S. W. 687) but on writ of error from the Supreme Court of the United States the judgment was reversed (240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523) on the ground that the area assessment method distributed the tax disproportionately to the benefit conferred. Mr. Justice Holmes, delivering the opinion of the court, and speaking of the ordinance authorizing the assessment, said (240 U. S. loc. cit. 59, 36 Sup. Ct. loc. cit. 255 ):

"But as is implied by Houck v. Little River Drainage District , if the law is of such a character that there is no reasonable presumption that substantial justice generally will be done, but the probability is that the parties will be taxed disproportionately to each other and to the benefit conferred the law cannot stand against the complaint of one so taxed in fact. * * * The city of St. Louis is shown by this case and by others in the Missouri reports to contain tracts, not yet cut into city lots, extending back from streets without encountering a parallel street much farther than the distance within which paving could be supposed to be a benefit. * * * The ordinance, following the charter as construed, established a line determining the proportions in which the tax was to be borne that, after running not a hundred feet from the street, leaped to near five hundred feet when it encountered such a tract, and on the opposite side of the street was one hundred and fifty and two hundred and forty feet away. * * * It is enough to say that the ordinance following the orders of the charter is bad upon its face as distributing a local tax in grossly unequal proportions not because of special considerations applicable to the parcels taxed but in blind obedience to a rule that requires the result."

On motion for rehearing the court limited its decision to the particular ordinance then before it and "to the assessment of three quarters determined in the mode described, and to those who, like plaintiff in error, have suffered from the inequalities that have no justification in law."

Upon the coming down of the mandate of the Supreme Court of the United States this court construed the opinion of the Supreme Court as holding the ordinance invalid only so far as it concerned an assessment of property based on the area rule, and reversed and remanded the case to the circuit court of the city of St. Louis with directions to enter up judgment in the amount theretofore found to be due based on the assessment under the front-foot rule. 209 Mo. 561, 191 S. W. 389. Upon cross-writs of error the Supreme Court of the United States affirmed such decision of this court upon the ground that the questions at issue were matters of state law. 245 U. S. 288, 38 Sup. Ct. 125, 62 L. Ed. 292.

In 1917 the Legislature passed a law providing for a new assessment upon laud benefited by street improvements, and for the issuance of new special tax bills, where any former special assessment had been Or should be adjudged invalid and unenforceable either in whole or in part by the final judgment of any appellate court of competent jurisdiction. Laws of Missouri 1917, p. 391. Pursuant to this act the board of aldermen of the city of St. Louis passed an ordinance on January 17, 1919, authorizing an area reassessment of all land benefited by the improvement of Broadway, authorizing the establishment of a new benefit district, and directing the issuance of new tax bills. Conformable to this ordinance a new district was laid out, a reassessment was made and the tax bills involved herein were issued. It is conceded that appellant Sophia Schneider is the present owner of these bills.

Since the improvement work was completed in 1908, respondent Gast Realty & Investment Company has subdivided part of its land and laid out lots on the west side of Broadway 30 by 115 feet, being the land involved in cause No. 23134. Respondents' property lying to the north of this row of lots has not been subdivided and is 843.50 feet in depth, with a frontage of about 224 feet, being that involved in causes numbered 23101 and 23107. The new district line runs back of the lots having a depth of 115 feet and, then jumps to 421.75 feet where it runs midway of the tract having a depth of 843.50 feet, making the property involved in cause No. 23134 assessed to a depth of 115 feet and that involved in causes numbered 23101 and 23107 assessed to a depth of 421.75 feet. An agreed statement of facts shows that the average depth of assessment of all the remaining property in the district (a frontage of 4,100 feet out of 4,331 feet) is 141 feet.

The causes were submitted in the court below mostly on agreed statements of fact. From a judgment in favor of respondents appellant has appealed.

I. It is contended by respondents that the act of 1917, Laws of Missouri 1917, p. 391 (now sections 8031 to 8607, inclusive, R. S. 1919), and the ordinance of January 17, 1919, enacted pursuant thereto, are invalid and unconstitutional because retrospective and...