Gilsonite Const. Co. v. St. Louis, I. M. & S. Ry. Co.

• Citation: 240 Mo. 650,144 S.W. 1086
• Court: United States State Supreme Court of Missouri
• Decision Date: 09 February 1912
• Parties: GILSONITE CONST. CO. v. ST. LOUIS, I. M. & S. RY. CO.

144 S.W. 1086

240 Mo. 650

GILSONITE CONST. CO. v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

February 9, 1912.

Motion for Rehearing Sustained Conditionally and Remittitur Filed March 12, 1912.

1. MUNICIPAL CORPORATIONS (§ 425)—IMPROVEMENTS — ASSESSMENTS — RAILROAD RIGHT OF WAY.

The right of way of a railroad company is subject to assessment for street improvements under St. Louis city charter the same as other abutting lands.

2. MUNICIPAL CORPORATIONS (§ 434) —IMPROVEMENTS — ASSESSMENTS — RAILROAD RIGHT OF WAY.

The right of way of a railroad company is not a "public highway" within the constitutional provision exempting public highways from taxation, so that it would not be exempted on that ground from special assessments for street improvements.

3. MUNICIPAL CORPORATIONS (§ 407) — SPECIAL ASSESSMENTS — RAILROAD RIGHT OF WAY—VALIDITY.

St. Louis city charter and the ordinances enacted thereunder, in effect assessing the right of way of a railroad company for special assessments for street improvements, do not violate the state or federal Constitutions.

Graves, Lamm, and Ferriss, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by the Gilsonite Construction Company against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit to collect 14 special tax bills, duly issued by the city of St. Louis, in favor of the plaintiff and against the defendant, in payment of materials furnished and labor performed in the reconstruction of a street in said city, known as Broadway, done in pursuance to a contract made by and between it and the city, in conformity to the charter and ordinances thereof. The petition contained 14 counts. The property of the plaintiff charged with said tax bills consists of its right of way and is located within the area of the district defined by the ordinance under which the work was done. The tax bills remaining unpaid, after demand made, plaintiff brought suit on them in the circuit court of the city of St. Louis. The appellant answered, admitting its ownership of the property against which the tax bills were issued, but averring that none of the property described in the several counts of the petition abuts upon the street paved by plaintiff, but, on the contrary, each of said described pieces of property is distant from Broadway and constitutes the defendant's right of way and is occupied by its main tracks solely for the passage of trains thereover, and is not devoted to yard, loading, or depot purposes or for any other purpose than the passage of trains thereover, and therefore can derive no possible benefit from the paving of Broadway, and hence cannot be chargeable with the cost of said paving or other improvement of said street; that to hold said property chargeable with the cost of said improvement would violate section 1, art. 14, of the Amendments to the Constitution of the United States, in that it would deprive the defendant of its property without due process of law and deny to it the equal protection of the laws, and that it would also violate section 30, art. 2, of the Constitution of Missouri, in that it would deprive defendant of its property without due process of law; that defendant is a railway corporation and public carrier of passengers and freight for hire and holds said property for a public use and as a public highway. The plaintiff filed its motion to strike out the affirmative matter of the answer above set out, which motion was sustained. Upon the trial of the cause plaintiff offered the 14 special tax bills in evidence and the signature to the same, by the president of the board of public improvements, and, notice and demand upon each tax bill being admitted, the plaintiff rested its case. The defendant then offered to prove the facts stated in that part of its answer theretofore stricken out, which proof, the court, upon the plaintiff's objection, refused to receive. The defendant offered no further evidence, but requested the courts to give an instruction in the nature of a demurrer to the evidence, denying the plaintiff's right to a recovery on any of the counts in the petition. That instruction was by the court refused, and the defendant duly excepted. The findings of the court were for the plaintiff on all the counts of the petition, and judgment was rendered accordingly. After taking the proper preliminary steps the defendant appealed the cause to this court.

M. L. Clardy and Henry G. Herbel, for appellant. Kehr & Tittman, for respondent.

WOODSON, J. (after stating the facts as above).

Since it is practically conceded that the contract, under which the improvements were made, and in payments of which the tax bills in suit were duly issued, was authorized by the charter and ordinances of the city of St. Louis, there are but three legal propositions remaining for determination, and they are:

First. Is the right of way of a railroad company, under the charter of the city of St. Louis, subject to taxation for local improvements, the same as other lands abutting upon the street improved? This precise question was presented to this court in banc, at the April term, 1907, in the case of Heman Construction Co. v. Wabash Railroad Company, 206 Mo. 172, 104 S. W. 67, 12 L. R. A. (N. S.) 112, 121 Am. St. Rep. 649, 12 Ann. Cas. 630. After an exhaustive review of the authorities and a most able consideration of the question, it was there held that the right of way of a railroad company was liable for special assessments for local street improvements the same as those made in pursuance to the contract now under consideration. Nothing has been said, nor have any additional authorities been cited on the presentation of this case, which would justify this court in overruling that case, or authorize the announcement of a rule different from the holding there expressed.

Second. Does the Constitution and laws of this state exempt the right of way of a railroad company from the assessment of special benefits? It was also held, in the case before mentioned, that the right of way of a railroad company was not a public highway within the meaning of the Constitution of this state, exempting "public highways" from taxation. No valid reason has been suggested to this court which would justify us in departing from that holding. Also, see, City, to the Use of Gilfillan, v. Eddy, 123 Mo., loc. cit. 559-563, 27 S. W. 471, and cases cited.

The third question is: Are the charter provisions and ordinances of the city of St. Louis, imposing such special benefits upon the right of way of the appellant, violative of either the state or federal Constitutions? It is no longer a debatable question in this state but what, under the laws and ordinances of the city of St. Louis, the rights of way of railroad companies as previously stated may be assessed for special benefits received by local improvements, such as those provided for in the contract here involved. Charter of St. Louis, art. 6, § 14; Heman Construction Co. v. Wabash Ry. Co., supra; Corrigan v. Kansas City, ...