Heman Construction Co. v. Wabash Railroad Co.
| Decision Date | 13 July 1907 |
| Citation | 104 S.W. 67,206 Mo. 172 |
| Parties | HEMAN CONSTRUCTION COMPANY, Appellant, v. WABASH RAILROAD COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Reversed and remanded.
Hamilton Grover, Hickman P. Rodgers and Charles W. Bates for appellant.
(1) One claiming exemption from taxation sustains the burden of proving specifically the authority by which the exemption is made. The charter of St. Louis, by authority of which this tax was levied and assessed, provides that "the remaining three-fourths of the cost so ascertained shall be levied and assessed as a special tax upon all the property in the district to be defined and bounded as hereinafter provided." There is no exemption of railroad property or railroad right of way in the charter. Charter, art. 6, sec 14. (2) While the Constitution of Missouri (art. 12, sec. 14) provides that "railways" are "public highways," such declaration has reference only to the objects and purposes mentioned in that section of the Constitution. A railway is not a "public highway" within any meaning of that word which would exempt it from taxation, either general or special. Constitution, art. 12 sec. 14; Nevada v. Eddy, 123 Mo. 546. (3) Land owned by a railroad company upon which is constructed its main line of tracks, constituting what is commonly called its "right of way," is subject to special assessment for local improvements. While this is an open question so far as the Supreme Court of Missouri is concerned, the weight of authority in other jurisdictions is overwhelmingly in favor of the liability of such property for special assessment and against its exemption therefrom. Nevada v. Eddy, 123 Mo. 546; Railroad v. People, 170 Ill. 228; Railroad v. Elmhurst, 165 Ill. 148; Rich v. Chicago, 152 Ill. 18; Railroad v. Joliet, 153 Ill. 649; Railroad v. Kankakee, 164 Ill. 604; Railroad v. Hays, 17 Ind.App. 265; Railroad v. Haum, 68 Ind. 567; Railroad v. Paving Co., 24 Ind.App. 114; Railroad v. Peterson, 5 Kan.App. 108; Railroad v. Connelly, 10 Ohio St. 159; Railroad v. Mt. Pleasant, 12 Iowa 112; In re Railroad, 32 Cal. 499; Ludlow v. Railroad, 78 Ky. 357; Railroad v. Jersey City, 42 N. J. 97; Railroad v. Barber Asphalt Pav. Co., 197 U.S. 430 (49 Law Ed. 819).
Henry W. Blodgett for respondents.
(1) The purposes for which countries and cities may levy and collect taxes, and the time and manner in which property may be assessed and taxed by municipal authority, are under the absolute and sole control of the Legislature. State ex rel. v. Railroad, 9 Mo.App. 532; Railroad v. Watson, 61 Mo. 57; State ex rel. v. Severance, 55 Mo. 378. (2) The taxbill in controversy has no life except as a lien on the specific property therein described. In no other respect is there liability in law or in equity, as there can be no personal judgment in this State. Sweany v. Railroad, 54 Mo.App. 265. (3) No lien can exist or be enforced against a portion of the right of way of a railroad company. Sweany v. Railroad, 54 Mo.App. 265; Dunn v. Railroad, 24 Mo. 493; McPheeters v. Bridge Co., 28 Mo. 467; Schulenburg v. Railroad, 67 Mo. 442; Knapp v. Railroad, 74 Mo. 374; Cranston v. Trust Co., 75 Mo. 29; Ireland v. Railroad, 79 Mo. 572; Skrainka v. Rohan, 18 Mo.App. 345; Dugan v. Railroad, 43 Mo.App. 675. (4) The court has no power to determine that the assessment on a part of the tract of land here in question is valid. State ex rel. v. Railroad, 114 Mo. 1. (5) The tract of land here in question is a part of a public highway, and as such is not subject to this assessment.
OPINION
In Banc.
-- This is a suit on a special taxbill, for street improvement, issued by the city of St. Louis in favor of the plaintiff, against real property in said city owned in fee by the defendant railroad company, and upon which the other defendants in the case hold incumbrances by way of deeds of trust, part of which property is used by said defendant railroad company as part of its right of way over which it operates trains. The origin of the special taxbill was the enactment of an ordinance by the Municipal Assembly of the city of St. Louis, providing for the paving of Audubon avenue with vitrified brick, between Taylor and Euclid avenues, in said city.
The petition is in the usual form for the enforcement of a special taxbill issued by the city of St. Louis for proportionate cost of construction of a street adjacent to the property of the defendant railroad company. It alleges the incorporation of the various defendants, their interests in the property, which is fully described, the particulars of the taxbill, notice of the issuance thereof, and concludes with prayer for judgment for the amount of the bill, with interest and costs, and that the same be declared a special lien against the real estate described.
The amended answer of the defendant railroad company, and of all the other defendants answering, sets forth the defenses: First, general denial; second, that the pretended assessment violates the Constitution and laws of Missouri and of the United States; third, exemption from assessment; fourth, that the land assessed is exempt because a part of a right of way, and, therefore, a public highway; fifth, exemption from said assessment, and any lien claimed thereunder, as a right, privilege, title and immunity guaranteed under the Constitution and laws of Missouri and of the United States, and the charter of the city of St. Louis.
It was admitted by counsel that the special taxbill sued on, No. 19590, dated November 7, 1903, and which was introduced in evidence without objection, was signed by the proper officers of the city of St. Louis, and that said taxbill remains unpaid; that notice of issuance of the said taxbill was duly given to defendants by plaintiff, and that on the fifth day of April, 1904, defendant, the Wabash Railroad Company, was duly served with notice to the effect that owing to its failure to pay the first installment of said taxbill within the time provided by law, plaintiff, as holder of said bill, had exercised its option and declared the entire bill to be immediately due and collectible.
The evidence shows that the main line of the Wabash railroad on which its trains pass eastward and westward, run on and along the length of the strip of land in question, but that a portion of same, fronting twenty-five feet on Euclid avenue and extending eastwardly between parallel lines, at least two hundred and fifty feet, had no tracks upon it at the time of the assessment and trial. Defendant offered evidence showing that it had paid certain special taxbills arising out of the same street improvements and which were assessed against its ground fronting Euclid and Audubon avenues, laid off and platted as lots, and upon which no railroad tracks were laid, and which was not used for railroad purposes.
The cause was tried without a jury. At the conclusion of the evidence, plaintiff asked the court to declare the law as follows:
"The court, sitting as a jury, declares the law to be that the special taxbill offered and received in evidence makes a prima-facie case for plaintiff, and that it being admitted that defendants are the owners in fee of the property described in said taxbill, the mere fact that railroad tracks are laid on portions of said ground and constitute a part of the main line of the Wabash railway company between St. Louis and Kansas City, is no defense to plaintiff's cause of action;" which requested declaration of law the court refused to give, and plaintiff duly excepted.
At the instance of defendants, the court declared the law as follows: "The court gives, at the request of defendants, the instruction that, under the pleadings and all evidence, plaintiff is not entitled to recover," to the giving of which declaration of law plaintiff duly excepted.
At the same term of court judgment was rendered against plaintiff and in favor of defendants for costs, from which judgment plaintiff, after filing an unsuccessful motion for a new trial, appealed to this court.
Section 5, article 10, of the Constitution of Missouri, provides: " All railroad corporations in this State, or doing business therein, shall be subject to taxation for State, county, school, municipal and other purposes, on the real and personal property owned or used by them, and on their gross earnings, their net earnings, their franchises and their capital stock."
While a distinction is made between local assessments and taxes levied for general revenue purposes, in that an assessment for a local improvement is not a tax within the meaning of the constitutional provision requiring uniformity of taxation, it is in a sense a tax, not, however, for the purpose of sustaining the government, but imposed upon individual property upon the theory that such property receives a special benefit different from the general one which the owner enjoys in common with others; in other words, an assessment for benefits.
That portion of section 14, article 6, of the amended charter of the city of St. Louis, under which the assessment in this case was made, is as follows:
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