Heman v. Schulte

• Decision Date: 17 December 1901
• Citation: 166 Mo. 409,66 S.W. 163
• Court: Missouri Supreme Court
• Parties: HEMAN v. SCHULTE et al.<SMALL><SUP>1</SUP></SMALL>

66 S.W. 163

166 Mo. 409.

HEMAN v. SCHULTE et al.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

TAXATION — TAX BILL — SPECIAL ASSESSMENT — SEWER DISTRICTS — MUNICIPAL CORPORATIONS — CONCLUSIVENESS OF ACTS — PLEADING — LEGAL CONCLUSION — CONSTITUTIONAL LAW — EMINENT DOMAIN.

1. In an action on a special tax bill issued for the construction of a sewer, it is no defense that defendant's lot could not be benefited by the sewer, as the action of the common council is conclusive in a collateral attack.

2. The acts of a municipal body under a power vested in it are conclusive on the courts, unless they are so unreasonable, oppressive, and subversive of the rights of the citizen, in the general purpose declared, as to clearly indicate an attempted abuse, rather than a legitimate use, of the power.

3. An allegation in defense of an action on a tax bill that the tax levied against the property of defendant is an attempt to take private property for an alleged public use, in violation of Const. Mo. art. 2, § 20, and to deprive defendant of his property without due process of law, in violation of Const. Mo. art. 2, § 30, and of Const. U. S. Amend. 14, is a mere statement of a legal conclusion, and not one of facts on which the court is asked to apply its conclusion of law.

4. Const. art. 2, § 20, providing that no private property shall be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes, in such manner as may be prescribed by law, refers to and is intended to regulate the right of eminent domain, and it has no application to special assessments for local improvements.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by August Heman against Fredericka D. Schulte and others. From a judgment for plaintiff, defendants appeal. Affirmed.

W. B. & Ford W. Thompson, for appellants. Hickman P. Rodgers, for respondent.

ROBINSON, J.

This is an action by plaintiff, as original contractor, brought to enforce the payment of special taxes assessed against defendants' property for benefits arising from the construction of a sewer in what is known as "Warren Avenue Sewer District, No. 6," constructed in pursuance of Ordinances Nos. 17,811 and 17,812 of the city of St. Louis. The special tax bill was issued by the president and board of public improvements on the 5th of November, 1895, to the plaintiff, under his contract with the city authorities, and is assessed against part of a lot owned by defendants, having a front of 120 feet on the north line of St. Louis avenue, extending southwardly 160 feet, bounded as follows: On the north by St. Louis avenue, on the east by Lambdin avenue, on the south by property owned by one Max Judd, and on the west by the property of one Cutter. The original lot of which defendants own a part has been so divided that they own the north 160 feet, and Max Judd the south part thereof, extending to the alley through which the sewer in question has been constructed. To plaintiff's petition defendants filed the following answer: "Now come defendants in the above-entitled cause, and, for amended answer to plaintiff's petition, state that they deny each and every allegation of said petition. Wherefore defendants, having fully answered, pray to be dismissed hence with their costs. And for further answer and defense to plaintiff's petition, defendants state that they are the owners of part of lot No. 1 of city block No. 3690, having an aggregate front of one hundred and twenty feet on St. Louis avenue, by a depth of one hundred and sixty feet to private property of one Max Judd. They deny that the city of St. Louis by its charter was empowered to pass Ordinances Nos. 17,811, 17,812, referred to in plaintiff's petition, and say that said ordinances, so far as they establish Warren avenue sewer district, No. 6, including the property of defendants herein, are illegal and void, in this, to wit: that the said city of St. Louis had no authority under its charter to pass or approve of an ordinance including the property of defendants herein in a sewer district, unless the sewer to be constructed in the said district was along public streets, alleys, or places, or was along, upon, or adjacent to property of the city of St. Louis condemned for the use of public streets, alleys, or public places, or for the uses of said sewer; and defendants aver that the said sewer district described in the said ordinances and so established did not abut or adjoin the property of the defendants herein; and defendants say that the said sewer district so established was along property owned by one Max Judd, which abutted and adjoined the property of the defendants herein, so that the defendants herein could not connect with or have the use of said sewer, or any portion or part of said sewer district so established by the said ordinances. Therefore defendants say that the said ordinances are void, and the tax levied and assessed under the said ordinances against the property of the defendants herein is an attempt to take the private property of defendants herein for an alleged public use, in violation of section 20 of article 2 of the constitution of this state, and to deprive the defendants herein of their property without due process of law, in violation of section 30 of article 2 of the constitution of the state of Missouri, and of article 14 of the amendment of the constitution of the United States. And defendants further aver that the tax bill issued under and in pursuance of the said ordinances is void and of no effect, because the said sewer so constructed under the said tax bill and contract, and by virtue of said ordinances, did not adjoin, abut, or connect with the property of defendants herein, nor could the defendants herein connect with or enjoy the said sewer, or any of the rights or privileges therein, in any manner whatsoever; and the ordinances creating the said district, so far as the same permitted any tax to be levied against these defendants or their property for the construction of said sewer, is in violation of the said sections 20 and 30 of article 2 of the constitution of the state of Missouri, and of article 14 of the amendments of the constitution of the United States." Thereupon plaintiff moved the court to strike out all that part of defendants' answer beginning with and following the words: "They deny that the city of St. Louis by its charter was empowered to pass ordinances." etc. Defendants' answer being stricken out by the court, they declined to plead further, but renewed their objection at the trial to any testimony being offered, and afterwards, in their motion for a new trial, made the point that the action of the court in striking out this answer was erroneous. Judgment was rendered in favor of plaintiff, and defend...