Hill v. City of St. Louis

• Citation: 60 S.W. 116,159 Mo. 159
• Parties: HILL et al. v. CITY OF ST. LOUIS et al., Appellants
• Decision Date: 18 December 1900
• Court: Missouri Supreme Court

60 S.W. 116

159 Mo. 159

HILL et al. v. CITY OF ST. LOUIS et al., Appellants

Supreme Court of Missouri

December 18, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Talty Judge.

Affirmed.

Schnurmacher & Allen for appellants.

(1) The city of St. Louis has express charter power to establish a general sewer system, to construct sewers, and to regulate the use of the same. Charter, art. 6, secs. 20-23; art 3 sec. 26, par. 2. And also implied power. Dillon's Mun Corp. (4 Ed.), sec. 805. Having constructed its sewers the city may impose any reasonable terms and conditions upon which private citizens may use the same. Dillon's Mun. Corp. (4 Ed.), secs. 681 and 805; St. Louis v. Green, 7 Mo.App. 468; s. c., affirmed, 70 Mo. 562; St. Louis v. Woodruff, 71 Mo. 92; St. Louis v. Webber, 44 Mo. 547; Provident Inst. v. Mayor, etc., Jersey City, 113 U.S. 506. (3) Although district sewers are constructed at the expense of the property benefited thereby, the city, as the contracting party, is interested in the payment for such works, and may exact such security therefor as may be reasonable. St. Louis Public Schools v. Woods, 77 Mo. 197; School District v. Livers, 147 Mo. 580. (4) An ordinance of a municipal corporation, falling within the scope of its law-making power, will not be declared invalid, except upon the clearest proof of arbitrary partiality, unfairness or oppression. City of Lamar v. Wiedman, 57 Mo.App. 507; Morse v. Westport, 110 Mo. 502; Corrigan v. Gage, 68 Mo. 541. Every doubt will be resolved in favor of the validity of the ordinance. St. Louis v. Griswold, 58 Mo. 192; State v. Able, 65 Mo. 357.

Collins, Jamison & Chappel and David Goldsmith for respondents.

The only contention which arises in this case is that as to the validity of the ordinance referred to in the petition. That the city of St. Louis had the charter power to enact the ordinance appears to us to be beyond reasonable controversy. Sec. 26, art. 3, of the charter of that city, provides: "The mayor and assembly shall have power within the city by ordinance not inconsistent with the Constitution or any law of this State, or of this charter . . . . to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof." The provision is conclusive of the controversy, especially when it is considered that municipal regulations like the one involved have been upheld in other jurisdictions wherein an express power to enact them is not shown to have existed. Ranlett v. City of Lowell, 126 Mass. 431; Herman v. State, 54 Ohio St. 506.

Julian Laughlin and Thos. S. Meng, Amici Curiae.

(1) The charter prescribing the method of collection of special tax bills, this method is necessarily exclusive, and the municipal assembly has no power to prescribe a different method. Charter of St. Louis, art. 6, secs. 22, 24, 25; Thompson v. Boonville, 61 Mo. 282; Moberly v. Wight, 19 Mo.App. 269. (2) The charter prescribing that tax bills should be delivered to the contractor and collected by him, the municipal assembly has no power to provide for their collection by its officers at the expense of its taxpayers. Knapp v. Kansas City, 48 Mo.App. 485. (3) The charter of the city of St. Louis providing for a proceeding in court to establish the lien of the tax bill, with opportunity to the property owner to put in issue the entire matter, as to whether the work was done, whether it was such as was properly chargeable against the abutting property, or upon a proper showing to reduce the amount of the recovery, the city has no power to deprive the property owner of his day in court, and to require him to pay the tax bill, as issued, though invalid in whole or part. St. Louis v. Bell Telephone Co., 96 Mo. 623; Sedalia Gaslight Co. v. Mercer, 48 Mo.App. 651; Leach v. Cargill, 60 Mo. 316. (4) Proceedings for the establishment of a lien of a special tax bill being in invitum, must be strictly construed so as to protect the property owner against confiscation by assessment, and therefore this ingenious scheme to deprive the property owner of his day in court, can not be allowed to stand. Guinotte v. Egelhoff, 64 Mo.App. 366; Rose v. Trestrail, 62 Mo.App. 351. (5) The ordinance is unreasonable, unjust and oppressive and therefore void, in subjecting the property owner to a double penalty, he being compelled to pay fifteen per cent per annum as a penalty, and being at the same time by this ordinance, deprived of the use of the sewer. (6) This ordinance is unreasonable in that its effect is to subject the property owner to fine and imprisonment for failure to pay the tax bill. He being subject by a proper municipal sanitary regulation to fine and imprisonment for failure to connect, and not being allowed to connect without paying the bill.

OPINION

In Banc

MARSHALL J.

This is a suit in equity to restrain the city of St. Louis and its sewer commissioner from issuing permits to the owners of property in Hodiamont Sewer District Number 1, to connect with the said district sewer until the special taxes due plaintiffs as the contractors with the city and the builders of said sewer, are paid.

The petition shows that the city of St. Louis duly enacted a general ordinance which prohibited the connection of any private sewer with a public or district sewer, unless a permit for the connection was first issued by the sewer commissioner, and which further prohibited the issue of a permit by the sewer commissioner for a sewer connection while an assessment made against the property to be drained for the construction of the district sewer remained unpaid; that, while this ordinance was in force, the city of St. Louis duly provided for the construction of a district sewer in Hodiamont Sewer District Number 1, and entered into a contract with the plaintiffs for the construction of that sewer; that thereupon the sewer was constructed by the plaintiffs, and special tax bills issued to them in accordance with the charter of the city; that, in entering into this contract and in carrying it out, the plaintiffs relied upon the ordinance above mentioned; that a large number of the tax bills issued to the plaintiffs as aforesaid, to-wit, tax bills amounting to more than twenty-five thousand dollars, remain unpaid; that the plaintiffs have duly demanded payment from the owners against whom these tax bills were issued, but that such owners deny the validity of the tax bills issued against their property and accordingly refuse payment; that these owners desire and intend to avail themselves of the sewers constructed by the plaintiffs and to connect their respective lots and the dwellings erected thereon with these sewers, notwithstanding their denial of the validity of the tax bills and their refusal to pay the same; that the defendants, the city of St. Louis and the said sewer commissioner, pretend that said city had not the legal power or capacity to enact said ordinance, and on that ground refused to enforce any of its said provisions, and that the said sewer commissioner threatens and is about to issue, and unless restrained by injunction will issue, to each and every of the said owners a permit for sewer connection with said sewers, notwithstanding the failure and refusal of such owners to pay the tax bills issued against their lots respectively; that if the ordinance was enforced by the defendants all the said unpaid tax bills would be paid at once, but that if the same is not enforced said permits will be issued to the owners against whose lots said unpaid special tax bills have been severally assessed, and that the plaintiffs will be deprived of the protection and benefit resulting from the ordinance and will be put to the expense of three thousand dollars in the collection of said unpaid tax bills, which would otherwise be avoided and saved, and that the plaintiffs are without adequate remedy at law.

To this petition the defendants interposed a general demurrer, which was overruled by the court, and thereon defendants refused to plead further and judgment was entered against them. From this judgment the defendants have appealed to this court.

I.

The city and its sewer commissioner base their action in issuing permits to persons in the district to connect with the district sewer, notwithstanding such persons have never paid the assessment against their property for the building of such district sewer, solely upon the decision of the St. Louis Court of Appeals in the case of State ex rel. Peck v. Hermann, 84 Mo.App. 1.

Section 1630, Revised Ordinances St. Louis 1893, provides: "No permit for a sewer connection under the preceding section shall be issued, if the property to be drained by the proposed sewer, or any part thereof, has ever been assessed for the construction of district sewers until such assessment has been paid," etc.

In the Peck case it appeared that the property of relator had been assessed for the construction of this Hodiamont district sewer; that she had not paid such assessment, that she applied to the sewer commissioner for a permit to connect with the district sewer and the sewer commissioner refused to issue the permit because under said section 1630, Revised Ordinances St. Louis, she had not paid such assessment. She thereupon commenced a proceeding by mandamus to compel the sewer commissioner to issue the permit. The circuit court granted a peremptory writ of mandamus as prayed, and the sewer commissioner appealed to the St. Louis Court of Appeals. That court affirmed the judgment of the circuit court, and held that said section of the city ordinance was void for two reasons: First, because the city charter (section 22, article 6) provides for the construction of district sewers and the assessment of the cost thereof...