Haeussler Investment Company v. Bates

• Citation: 267 S.W. 632,306 Mo. 392
• Decision Date: 30 December 1924
• Docket Number: 23916
• Parties: HAEUSSLER INVESTMENT COMPANY, Appellant, v. CHARLES W. BATES
• Court: Missouri Supreme Court

267 S.W. 632

306 Mo. 392

HAEUSSLER INVESTMENT COMPANY, Appellant, v. CHARLES W. BATES

No. 23916

Supreme Court of Missouri

December 30, 1924

Motion for Rehearing Overruled December 30, 1924.

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

Affirmed.

Charles R. Skinker, Leahy, Saunders & Walther and Lewis & Rice for appellants.

(1) The charter makes no provision for notice or hearing in the establishment of taxing districts for sewers, and no notice was given or hearing had upon the question of benefits in the establishment of the taxing district for the Mill Creek Joint District Sewer. Therefore, the assessment is invalid, being violative of the due-process clause of the Federal Constitution. Londoner v. Denver, 210 U.S. 385; Turner v. Wade, 254 U.S. 64; Embre v. Road Dist., 240 U.S. 242, 257 Mo. 593; St. Louis Land Co v. Kansas City, 241 U.S. 430; Land & Stock Co. v Miller, 170 Mo. 240; Baumann v. Ross, 167 U.S 549; McGhee v. Walsh, 249 Mo. 284; Houck v Drainage Dist., 248 Mo. 373; Hamilton on Special Assessments, sec. 145; McQuillin on Mun. Corp., sec. 2074; Page & Jones on Taxation by Assessment, sec. 729; Farnham on Water & Water Rights, sec. 232, p. 1091. (a) A local assessment may be made by the Legislature itself without notice or hearing, but when the power is delegated to a municipal body it cannot be exercised without notice to property owners and an opportunity to be heard at some stage of the proceedings. McGehee on Due Process of Law, p. 248. (b) The right to such notice and hearing must be accorded by the terms of the law pursuant to which the assessment is made. Security Trust Co. v. Lexington, 203 U.S. 323; Coe v. Armour, 237 U.S. 413. (c) The right must be accorded before the assessment becomes a fixed lien or charge. Soliah v. Heskin, 222 U.S. 522. (d) The only exception to the rule recognized by the courts is where the full legislative control over the subject has been delegated to the municipal legislative board and that body acts legislatively. Hancock v. Muskogee, 250 U.S. 454. (e) The charter does not confer such full legislative power upon the Municipal Assembly. The Assembly cannot initiate such a measure. It must originate with the Board of Public Improvements and the Assembly is given no power to amend a bill emanating from the board. It must either accept or reject the same as it comes from the board. Charter, art. 6, sec. 22; American Tob. Co. v. St. Louis, 247 Mo. 374; State ex rel. Belt v. St. Louis, 161 Mo. 371. (f) Full legislative power includes the free and unlimited exercise of discretion by the legislators. Forsyth v. Hammond, 71 F. 451; Railroad v. Commrs., 1 Oh. St. 88, approved in Field v. Clarke, 143 U.S. 694; Eubank v. Richmond, 226 U.S. 137; Cusack Co. v. Chicago, 242 U.S. 526; State ex inf. v. Colbert, 273 Mo. 211. (g) The Board of Public Improvements makes the inquiry into the facts and drafts a bill for establishment of the taxing district based upon its finding of facts and recommends to the Municipal Assembly the adoption of the assessment. The board is a purely administrative body. Kansas City v. Ward, 134 Mo. 172. The taxing district being in fact established by the board subject merely to the approval or rejection of the Municipal Assembly, the property owner must be given an opportunity to be heard. (h) The Municipal Assembly in approving the assessment as made by the Board of Public Improvements was not acting legislatively. State ex rel. v. Gates, 190 Mo. 540; McKenna v. St. Louis, 6 Mo.App. 320; Weston v. Syracuse, 158 N.Y. 274; Switzinger v. Electric Co., 187 Pa. St. 539; Parks v. Boston, 8 Pick. (Mass.) 218; State v. Morristown, 34 N. J. L. 445; Forsythe v. Hammond, 71 F. 443; State ex rel. Subway Co. v. St. Louis, 145 Mo. 551; 2 McQuillin on Municipal Corp., sec. 704. (2) The ordinance classifying the sewer in question as a joint district sewer and the provisions of the charter permitting classification without regard to the size or character of the sewer and its purpose, but based entirely upon the method of payment, are arbitrary and void, and deny the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States. Truax v. Corrigan, 257 U.S. 312; Sioux City Bridge Co. v. Dakota Co., 6 U.S. Rep. 43; Hays v. Poplar Bluff, 263 Mo. 533. (a) The rule is that classification for legislative purposes must depend on substantial differences which bear a proper relation to the attempted classification. Railroad v. Ellis, 165 U.S. 150; Magoun v. Bank, 170 U.S. 294; Yick Wo v. Hopkins, 118 U.S. 356; Cotting v. Stock Yards, 183 U.S. 107; Commission v. Railroad, 227 U.S. 88; Dobbins v. Los Angeles, 195 U.S. 223; St. Louis v. Handlan, 242 Mo. 88; Goodale v. Dowell, 62 S.C. 516; Railroad v. Ellis, 165 U.S. 150; Longview v. Crawfordsville, 164 Ind. 117; Railway v. Smith, 173 U.S. 684; Railway v. Green, 216 U.S. 409; Buchanan v. Warley, 245 U.S. 60; Baltimore v. Cahill, 126 Md. 596; Storck v. Baltimore, 101 Md. 476; State v. Loomis, 115 Mo. 307; Commonwealth v. Coal Co., 251 Pa. St. 134; Kellaher v. Portland, 57 Ore. 575; Stratton v. Morris, 89 Tenn. 497; Matthews v. Jensen, 21 Utah 207; State v. Ide, 35 Wash. 576; Railway v. Fuller, 205 F. 86; Little v. Tanner, 208 F. 605; Van Deman v. Rast, 214 F. 827; Royster Guano Co. v. Virginia, 253 U.S. 412; Railway v. Road Dist., 256 U.S. 658. (b) Article VI, Section 20, of the Charter of the city of St. Louis, committing to the Municipal Assembly the discretion to classify sewers for the purpose of taxation, being uncontrolled by any uniform rule based upon a substantial reason bearing some legitimate relation to the object of classification, is unconstitutional legislation. Hays v. Popular Bluff, 263 Mo. 533; Railroad v. Commission, 196 F. 818; Schneider Granite Co. v. Gast, 240 U.S. 59; State ex rel. v. Railway, 262 Mo. 507; St. Louis v. Const. Co., 244 Mo. 479. This is especially true, because by the laws of Missouri the sewer in question would be a public sewer, to be paid for by the municipality, and not by private property. State ex rel. v. Wilder, 217 Mo. 261; Southworth v. Glasgow, 232 Mo. 108; Schwabe v. Moore, 187 Mo.App. 74. (c) Merely calling it a joint district sewer instead of a public sewer does not make it what it has been called, but the effort to shift the burden from the general treasury to private property for an improvement which, by all of the recognized definitions, is a "public" sewer, constitutes a fraud and invalidates the ordinance. Albers v. St. Louis, 268 Mo. 349; Kansas City v. Hyde, 196 Mo. 498; Ellis v. United States, 206 U.S. 259. (d) When the scheme of distribution of an improvement tax is palpably arbitrary and constitutes a plain abuse, it is violative of the Fourteenth Amendment to the Federal Constitution. St. Louis Land Co. v. Kansas City, 241 U.S. 429; Kansas Ry. v. Road Impr. Dist., 6 U.S. Rep. 715. (3) The ordinance establishing the taxing district in question is arbitrary and results in favoritism to the owners of the properties within the drainage area excluded and in oppression upon those whose properties lie within the taxing district. The courts will declare such an unreasonable ordinance void. Dillon on Mun. Corps. (5 Ed.) sec. 592, p. 920; McQuillin on Mun. Corps., sec. 2052, p. 4401; Page & Jones on Taxation, sec. 555; 28 Cyc. 1122; Corrigan v. Gage, 68 Mo. 541; City v. Hyde, 196 Mo. 498; Masters v. City of Portland, 24 Ore. 161; Hanscon v. Omaha, 11 Neb. 37. These outlying properties being served by the joint district sewer, even though the storm water from the area may not find its way into the sewer, are benefited by the district sewer. Page & Jones on Taxation, sec. 563, p. 917. (4) The president of the Board of Public Improvements was without power to alter the contract entered into between the city and the contractor, and it is immaterial that the alteration did not result in any additional cost to the property owners specially assessed. Walsh v. Hunt, 120 Cal. 46; 1 R. C. L. p. 968; Bank v. Frickey, 70 Mo. 178. (5) Under the charter of the City of St. Louis the tax bills were not issuable until the contract had been fully performed. Article VI, sec. 22, Charter; Hund v. Rackliffe, 192 Mo. 330; Independence v. Gates, 110 Mo. 374.

Bates, Williams & Baron for respondent.

(1) The tax bills make a prima-facie case. Their validity is presumed and the burden is upon those contesting the tax bills to prove their invalidity. All the testimony in these suits tended to support the validity of the special tax bills and there is none to the contrary. St. Louis Malleable Castings Co. v. Prendergast Constr. Co., 288 Mo. 197 affirmed 260 U.S. 469; Parker-Washington Company v. Field, 202 Mo.App. 159; Delmar Investment Co. v. Lewis, 271 Mo. 322; Collins v. Jaicks Co., 279 Mo. 404, 426; Charter, Art. 6, sec. 25. (2) The ordinances under which the work was done did not violate Section 20, or Sec. 30, Art. 2 of Mo. Constitution or the VII Amendment. Heman v. Schulte, 166 Mo. 409, affirmed Schumate v. Heman, 181 U.S. 402. The constitutionality of charter provisions providing for the construction of streets, alleys or sewers, and charging the cost of such construction proportionately upon all property abutting the improvement or within the established benefit district, either according to the front-foot rule or according to the area rule is no longer open to debate. All such questions have been settled by the decisions of this court and those of the Supreme Court of the United States. Prior v. Const. Co., 170 Mo. 439; Hancock v. City of Muskogee, 250 U.S. 454; Ruecking Const. Co. v. Withnell, 269 Mo. 546; McGhee v. Walsh, 249 Mo. 266; Meier v. St. Louis, 180 Mo. 391; Withnell v. Ruecking Const. Co., 249 U.S. 63. (3) The appellants introduced no...