Haeussler Inv. Co. v. Bates

• Citation: 267 S.W. 632
• Decision Date: 08 October 1924
• Docket Number: No. 23916.,23916.
• Parties: HAEUSSLER INV. CO. v. BATES.
• Court: Missouri Supreme Court

267 S.W. 632

HAEUSSLER INV. CO. v. BATES.

No. 23916.

Supreme Court of Missouri.

October 8, 1924.

Motion for Rehearing Overruled December 30, 1924.

In Banc.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Suit by the Haeussler Investment Company against Charles W. Bates. Judgment for defendant, and firmed.

Charles R. Skinker, Leahy, Saunders & Walther and Lewis & Rice, all of St. Louis, for appellant.

Bates, Williams & Baron, of St. Louis, for respondent.

WHITE, J.

The plaintiff, the Haeussler Investment Company, seeks by this suit to cancel 22 special tax bills assessed against property of the appellant, issued and delivered to the Carter Construction Company by the City of St. Louis, in part payment for the construction of the Mill creek joint district sewer. The respondent, Charles W. Bates, is the assignee and holder of these special tax bills. Other cases affecting similar tax bills, pending in this court, were tried with this case; each of them is to abide the decision in this case. Still other cases were tried separately, and are pending here on appeal.

The plaintiff seeks to cancel the tax bills for several reasons which may be briefly stated as follows: First, the owners of the property in the Mill Creek joint sewer district, in violation of the Fourteenth Amendment to the federal Constitution, were denied due process of law in that the district was established, and the entire proceeding carried through, without notice to, or opportunity to be heard by, the owners of the property against which the special tax was assessed, the charter of St. Louis having no provision for notice; second, the establishment of the district denied the plaintiff the equal protection of the laws required by the Fourteenth Amendment to the federal Constitution, in that the charter provisions of the city permitted an unreasonable classification of sewer districts; third, dividing the work into two sections, to be performed under separate contracts, was violative of the Fourteenth Amendment in that it was a denial of equal protection of the laws; fourth, section 20, art. 5, of the charter, authorizing the classification of districts, was violative of the Fourteenth Amendment, in denying equal protection of the laws, because it authorized a tax without respect to the benefits conferred ; fifth, the sewer constructed is in fact a public sewer, and should be paid for out of the public treasury; calling it a 'private sewer does not make it so; sixth, the sewer as established drains territory outside the sewer district which receives the benefit without being taxed, and the territory within the district is taxed to pay for it, thus denying equal protection of the laws to persons owning property within the district; seventh, the special tax bills were issued before the work was completed, and the work was not completed by the contractor; eighth, there were unauthorized alterations in the contract.

The defendant filed answer and a cross-bill, in several counts, asking judgment, enforcing each of the tax bills which the plaintiff sought to cancel. To the cross-bill plaintiff filed its answer setting up the same alleged infirmities in the tax bills as alleged in the petition. Somed time in June, 1914, the authorities of the city of St. Louis adopted plans for the formation of the Mill Creek joint sewer district, and making of contracts for the construction of the joint district sewer in two sections. Ordinance No. 27687, provided for the construction of the Mill Creek joint district sewer. Ordinance No. 27688 provided for the construction of the first section of the sewer, and the payment of the city's portion of the cost. Ordinance No. 27689 provided for the construction of the second section of the sewer, etc.

After the passage of these ordinances, bids were received and contracts for both sections let to the Carter Construction Company. The contract was to be performed "under unit quanities and unit prices." That is, the work and material were classified and were to be paid for by the quantity. The first section, under the Carter contract, and the unit prices, was estimated to cost $1,399,924.20, and the second section $1,672,530. Before receiving bids the cost was estimated by the city at $1,650,000 for the second section, and $1,850,000 for the first section. Other bids were higher, while the figures of the successful bidder, the Carter Construction Company, were considerably lower than the estimate.

The Mill Creek joint sewer district comprises 5,122 acres, including streets and highways, an area of 8 square miles. It extends from the Mississippi river westward, and comprises territory surrounded by a natural watershed, modified to some extent by street improvements. The sewer was called a relief sewer. It was constructed near and parallel with the old Mill Creek sewer. It was a tunnel structure in horseshoe shape 16½ feet in diameter. The old Mill Creek sewer was a gravity sewer with a fall so that the sewage flowed naturally to its outlet in the Mississippi river. The joint district sewer, or relief sewer, was a pressure sewer, built on a level throughout, so that water was carried out by pressure from intake shafts where the sewage flowed into it from above. It was designed to take care of flood water, the old Mill Creek sewer being entirely sufficient to carry off the ordinary sewage, but insufficient to take off the flood water in times of rain and storm.

The trial court found against the plaintiff, rendered judgment for defendant on each of the tax bills, and plaintiff appealed.

I. The appellant contends that the special assessment, tax bills for which it seeks to cancel, is violative of the due process clause of the Fourteenth Amendment to the federal Constitution. The charter of the city of St. Louis, under which the sewer district under consideration was laid off establishes a sewer system in which sewers are divided into four classes; each class defined as provided for. The charter (section 20, art. 6), is as follows:

"Classification of Sewer System—`Public,' `District,' `Joint District,' and `Private.' A sewer system is hereby established which shall be divided into four classes, viz., `public,' `joint district,' `district,' and `private' sewers; the classes in any case being determined by the authority of its construction, and the definitions hereinafter specified, irrespective of the area drained, the size, character or purpose of the sewer. * * *

"Public sewers are defined to be those heretofore constituted or acquired under authority of an ordinance, and paid for wholly out of the general revenue. Public sewers hereafter constructed shall be such sewers as the board of public improvements may deem it expedient to establish and construct without creating a sewer district or joint sewer district; and such sewers may be established and constructed at such times, to such extent, of such dimensions and materials, and under such regulations as may be required by ordinance, recommended by the board of public improvements, and shall also consist of such branches to sewers already constructed as may be considered expedient by said board. * * *"

"District sewers are defined to be those constructed or acquired under authority of ordinances within the limits of an established sewer district and paid for by special tax assessed upon the property in the district.

"Joint sewer districts are defined to be those constructed or acquired under the authority of ordinances uniting one or more districts or unorganized territory, for the purpose of providing main outlet or intercepting sewers, for the joint benefit of such district or territory, and paid for by special taxes assessed upon all the property in said joint sewer district.

"Private sewers are defined to be those built with or without permits and paid for by the parties, persons, associations or corporations constructing them."

Section 22, art. 6, of the charter, provides for the establishment of a joint sewer, as follows:

"Joint district sewers may be contracted or acquired as follows: Whenever the municipal assembly on recommendation of the board of public improvements deems it necessary that a sewer be constructed in any part of the city for drainage or sanitary improvements of a section of the city comprising more than one established sewer district, or territory not yet in an established sewer district, it may, by ordinance unite and establish such sewer districts, or parts thereof, and unorganized territory, into a joint sewer district, and cause a sewer or sewers to be constructed therein, and the whole cost thereof to be assessed against all the property within the boundaries of such joint sewer district as a special tax."

It seems to be conceded that the method of apportionment of cost according to area is not open to objection; several times it has been approved by this court. Prior v. Construction Co., 170 Mo. loc. cit. 448, 71 S. W. 205; Johnson v. Duer, 115 Mo. loc. cit. 376, 377, 21 S. W. 800; Withnell v. Ruecking Construction Co., 249 U. S. 63, loc. cit. 69, 39 S. Ct. 200, 63 L. Ed. 479. The charter, having the force and, effect of a legislative act, definitely fixes the method by which the apportionment shall be made, leaving to the city authorities only the mathematical ascertainment of the tax assessed against each of the pieces of property.

The distinction which the appellant seeks to make between the laying off of the district, and estimating the assessment against each tract, is expressed in the opinion last cited, in saying that when the assessment is made in accordance with a fixed rule adopted by a legislative act the property owner is not entitled to be heard in defense on the question of the amount and extent of the assessment. Whereas in fixing the boundaries of the district requiring the exercise of discretion, the argument runs, the property owner has a right to be heard as to whether the property will be...