Houck v. Little River Drainage Dist.

• Decision Date: 12 February 1913
• Citation: 154 S.W. 739,248 Mo. 373
• Parties: LOUIS HOUCK et al., Appellants, v. LITTLE RIVER DRAINAGE DISTRICT et al
• Court: Missouri Supreme Court

154 S.W. 739

248 Mo. 373

LOUIS HOUCK et al., Appellants, v. LITTLE RIVER DRAINAGE DISTRICT et al

Supreme Court of Missouri

February 12, 1913

Appeal from Cape Girardeau Circuit Court. -- Hon. Charles B. Faris Judge.

Affirmed.

Giboney Houck and Davis & Hardesty for appellants.

(1) "The constitutionality of a law is to be tested not by what has been done but what may by its authority be done." Stuart v. Palmer, 74 N.Y. 183; Agens v. Mayor, 37 N.J.L. 420; Norwood v. Baker, 172 U.S. 269. (2) Sec. 5538, R.S. 1909, violates sections 21 and 30 of article 2 of the State Constitution and amendment 5 and section 1 of amendment 14 of the United States Constitution by depriving plaintiffs of property for public use without compensation and without due process of law. (a) Due process of law includes the idea of compensation for property taken for public use. Railroad v. Chicago, 166 U.S. 241; Water Supply Co. v. Brooklyn, 166 U.S. 695; Norwood v. Baker, 172 U.S. 269. (b) "Special assessments" are unconstitutional unless founded upon either a legislative or a judicial finding of "special benefits," i. e. "compensation," for the assessment exacted for public use. Morrison v Morey, 146 Mo. 561; Land & Stock Co. v. Miller, 170 Mo. 249; Levee Co. v. Hardin, 27 Mo. 496; St. Louis v. Oeters, 36 Mo. 456; Kansas City v Ridenour, 84 Mo. 258; St. Joseph v. Anthony, 30 Mo. 537; St. Louis v. Rankin, 96 Mo. 497; Independence v. Gates, 110 Mo. 374; Kansas City v. Ward, 134 Mo. 172; Clinton ex rel. v. Henry County, 115 Mo. 557; Norwood v. Baker, 172 U.S. 269. (c) A legislative finding of such "special benefits" under section 5538, in the case at bar, will be vacated as a thing palpably false. Norwood v. Baker, supra; McCormick v. Patchin, 53 Mo. 36; Zoeller v. Kellogg, 4 Mo. 163; Corrigan v. Gage, 68 Mo. 541; Cooley on Taxation (2 Ed.), chap. 20; Hammett v. Philadelphia, 65 Pa. St. 146; Agens v. Mayor, 37 N.J.L. 416; Davidson v. New Orleans, 96 U.S. 97; Loan Ass'n v. Topeka, 20 Wall. (U.S.) 655. (d) No judicial finding on the amount of "benefits" assessable to the land is, by any section of the drainage law, required, or provided for, as a foundation for levying the assessment under section 5538. Secs. 5496 to 5499, 5519 and 5538, R.S. 1909; Charles v. City of Marion, 98 F. 166; Moss v. Whitzell, 108 F. 579; Railroad v. Chicago, 166 U.S. 241; Davidson v. New Orleans, 96 U.S. 104; Cooley on Constitutional Limitations, pp. *356, *357; 2 Story's Const. (Cooley's Ed.) sec. 1956; Stuart v. Palmer, 74 N.Y. 191; Violett v. Alexandria, 92 Va. 561. (3) The benefit principle being absent from sec. 5538, the assessment therein provided for is clearly general, and, if general, then violative of the Missouri Constitution in respect to section 3 of article 10 requiring taxes to be uniform, section 4 of article 10 requiring all property to be taxed in proportion to its value, and sections 11 and 12 of article 10 limiting the amount of the aggregate rates of taxation. Agens v. Mayor, 37 N.J.L. 416; Norwood v. Baker, 172 U.S. 269; Morrison v. Morey, 146 Mo. 564. (4) Its retrospective character is another reason why section 5538 conflicts with the "due process of law" requirement of both the State and Federal Constitutions. Furthermore, being retrospective, it impairs the obligation of contracts in violation of section 15 of article 2 of the State and section 10 of article 1 of the Federal Constitution, and comes within the direct prohibition of section 15 article 2 of the Missouri Constitution, forbidding retrospective legislation. Leete v. Bank, 115 Mo. 200; Westervelt v. Gregg, 12 N.Y. 202; Norris v. Beyea, 13 N.Y. 273; Holmes v. Holmes, 4 Barb. 295; St. Louis to use v. Clemens, 52 Mo. 144; In re Pell, 171 N.Y. 48; State ex rel. v. Adams, 44 Mo. 570; Dartmouth College v. Woodward, 4 Wheat. 518. (5) If this court declare the "preliminary information" constitutes a "betterment to the land" which can be taxed as a "benefit," it takes a position adverse to all prior adjudications on kindred cases in England and America. The single case cited by respondents (Railroad v. Pierce, 23 L.R.A. [N.S.] 286) intensifies this statement, for the preliminary tax was there laid by virtue of an election within the district, and the tax was therefore voluntary and self-imposed. Furthermore, this court would be bound to recede from the doctrine in the future application of such a principle to public improvement cases constantly coming before this court. Kansas City v. O'Connor, 82 Mo.App. 660, shows one line of cases that would have to be overruled in order to uphold this law, namely, those declaring special assessments for sprinkling invalid for lack of the benefit principle. Kansas City v. Railroad, 28 L.R.A. (N.S.) 669, is the most important decision on which we rely -- a decision by this court -- virtually declaring that the landowner must be guaranteed the "special benefits" for which he is charged, before this court will uphold an assessment for such special benefits. But the law in question boldly says it ignores the principle of benefits. If this court upholds this law it will overrule and upheave its adjudications on public improvements and then later on be bound to come back to those adjudications and reinstate them.

Oliver & Oliver for respondents.

(1) The Legislature may by its own act fix the territorial limits of special assessment districts, and by its own act determine the amount of the assessment, or the Legislature may delegate those powers to an agency created by it. Drainage Dis. v Railroad, 139 S.W. 330; Land and Stock Co. v. Miller, 170 Mo. 240; Levee Co. v. Hardin, 27 Mo. 495; Levee Co. v. Meier, 39 Mo. 53; Morrison v. Morey, 146 Mo. 543; Prior v. Construction Co., 170 Mo. 439; Asphalt Co. v. French, 158 Mo. 534; Meier v. St. Louis, 180 Mo. 391; Heman v. Railroad, 206 Mo. 179; Heman v. Allen, 156 Mo. 534; Spencer v. Merchant, 125 U.S. 345; French v. Asphalt Co., 181 U.S. 324; Webster v. Fargo, 181 U.S. 394; Ross v. Supervisors, 1 L.R.A.(N.S.) 431; Caton v. Drainage Dis., 112 S.W. 145; Cooley on Taxation (1 Ed.), p. 449. (2) It is within the power of the Legislature to charge the property within the special assessment district, at a level rate, with the cost of the improvements, and apportion the same either according to the front foot rule, or according to the area (acreage) rule. In either event it acts within constitutional limits. Drainage Dis. v. Railroad, 139 S.W. 330; Levee Co. v. Hardin, 27 Mo. 495; Levee Co. v. Meier, 39 Mo. 53; Prior v. Construction Co., 170 Mo. 448; Meier v. St. Louis, 180 Mo. 391; Asphalt Co. v. French, 158 Mo. 534; N. P. R. Co. v. Pierce Co., 23 L.R.A.(N.S.) 286; Paving Co v. Fair Assn., 231 Mo. 589; Pleadwell v. Glass Co., 151 Mo.App. 51; Construction Co. v. Shovel Co., 211 Mo. 531; Spencer v. Merchant, 125 U.S. 345; French v. Asphalt Pav. Co., 181 U.S. 324; Wright v. Davidson, 181 U.S. 371; Farm Co. v. Detroit, 181 U.S. 395; Detroit v. Parker, 181 U.S. 399; Webster v. Fargo, 181 U.S. 394; Munsen v. Board, 43 La. Ann. 15; Wallace v. Shelton, 14 La. Ann. 498; Caton v. Drainage Dis., 112 S.W. 145; Sheley v. Detroit, 45 Mich. 431; Cremer v. Allen, 3 Mo.App. 548; Cooley on Taxation (1 Ed.), p. 454. (3) The Legislature may apportion the cost of the improvement upon the property in the district according to the frontage or area rule without judicial inquiry as to the value or benefits the property assessed will receive, and this will not constitute a taking of private property without due process of law, under either State or Federal Constitution. Spencer v. Merchant, 125 U.S. 345; French v. Paving Co., 181 U.S. 324, 158 Mo. 534; Tonawanda v. Lyon, 181 U.S. 389; Webster v. Fargo, 181 U.S. 394; Farm Co. v. Detroit, 181 U.S. 395; Detroit v. Parker, 181 U.S. 395; Wormley v. District of Columbia, 181 U.S. 402; Shumate v. Heman, 181 U.S. 402; Heman v. Allen, 156 Mo. 534; Keithe v. Bingham, 100 Mo. 300; Smith v. Worcester, 182 Mass. 232; Heman v. Gilliam, 171 Mo. 264; St. Charles ex rel. v. Deemar, 174 Mo. 124; Meier v. St. Louis, 180 Mo. 391; Ross v. Gates, 183 Mo. 347; Asphalt Pay. Co. v. Munn, 185 Mo. 565; People ex rel. v. Pitt, 169 N.Y. 521; Arnold v. Knoxville, 115 Tenn. 210; Hagar v. Reclamation Dist., 111 U.S. 701; Cooley on Taxation (1 Ed.), p. 36; Prior v. Construction Co., 170 Mo. 439; Construction Co. v. Shovel Co., 211 Mo. 532; Williams v. Eggleston, 170 U.S. 304; Roofing Co. v. Fair Assn., 231 Mo. 589; Ross v. Supervisors, 1 L.R.A.(N. S.) 437; Page & Jones on Taxation by Assessment, sec. 123. (4) The constitutional provision prohibiting the taking of private property for public use without compensation, is a limitation on the exercise by the State of the right of eminent domain, and not a limitation on the taxing power. Drainage District v. Richardson, 139 S.W. 576; Keith v. Bingham, 100 Mo. 306; Heman v. Schulte, 166 Mo. 419; St. Louis v. Buss, 159 Mo. 12; Gilman v. Sheboygan, 67 U.S. 510; Dillon on Municipal Corporations (3 Ed.), sec. 738; Page & Jones on Taxation by Assessment, sec. 110; Construction Co. v. Shovel Co., 211 Mo. 531; Asphalt Co. v. French, 158 Mo. 534; 181 U.S. 324; St. Joseph v. Farrell, 106 Mo. 437; Cooley on Taxation (1 Ed.), p. 430, 431. (5) A legislative determination of the benefits derived or the necessity and advisability of a local assessment is conclusive and final, and is not subject to judicial review. Prior v. Construction Co., 170 Mo. 451; Asphalt Co. v. French, 158 Mo. 534, 181 U.S. 324; Levee Co. v. Hardin, 27 Mo. 495; Chadwick v. Kelly, 187 U.S. 540; St. Joseph v. O'Donoghue, 31 Mo. 345; Meier v. St. Louis, 180 Mo. 391; Hagar v. Reclamation Dist., 111 U.S. 701; Railroad v. Paving Co., 197 U.S. 430; Irrigation Dist. v. Bradley, 164 U.S. 112; People v. Brooklyn, 4 N.Y. 419; Railroad v. Seattle, 12 L.R.A.(N.S.)...