McCormack v. Patchin

• Citation: 53 Mo. 33
• Parties: SAMUEL C. MCCORMACK, Admr. of MOSES W. RUGGLES and JACOB M. BIXLER. Respondents, v. LYMAN W. PATCHIN, et al., Appellants.
• Decision Date: 31 March 1873
• Court: United States State Supreme Court of Missouri

53 Mo. 33

SAMUEL C. MCCORMACK, Admr. of MOSES W. RUGGLES and JACOB M. BIXLER. Respondents,

v.LYMAN W. PATCHIN, et al., Appellants.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Clayton F. Becker, for Appellants.

I. The provisions in the city charter of 1867, and the ordinance of the City Council of St. Louis passed in pursuance thereof, in so far as they authorize the re-pavement of a street which had already been paved, and had been paid for by the owners of the adjoining property, and which was in good order and repair, and the assessment of the cost of such re-pavement exclusively upon the same adjoining properties, are unconstitutional and void, as, in effect, prescribing the taking of private property for public use without just compensation. (Hammett vs. Philadelphia, 65 Pa. St., 146.) This case is similar to the case at bar in every respect. (The People, ex rel., Post vs. Booklyn, 6 Barb., 209; Pittsburg vs. Shaffer, 66 Pa., 454.)

II. Local assessments are within the principle of Eminent Domain, where they are not founded upon and measured by equivalent benefits distinctively affecting the property of the persons upon whom the burden is exclusively charged. ( In re.,Canal Street, 11 Wend., 155; Egyptian Levee Co. vs. Hardin, 27 Mo., 496; Sheehan vs. Good Samaritan Hospital, 50 Mo., 155; Creighton vs. Manson, 27 Cal., 625; Taylor vs Palmer, 31 Cal., 254.)

III. Taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must be reasonably just and equal in its distribution, and cannot sacrifice individual rights by a palpably unjust exaction. ( In re. Washington Avenue, 69 Pa. St., 362, where the subject of Local Taxation is fully and ably discussed; Warren vs. Henly, 31 Iowa, 31.)

IV. The matter of benefits as an equivalent to the burdens of local taxation, is purely a juridical question, and is not proper to the City Council considering merely the question of the re-pavement of a street; for if the City Council can re-pave streets and assess the cost thereof exclusively upon the adjoining property, at its discretion, then there is no limit to its power over property; and it may re-pave and assess every day in the year until the whole value of the adjoining property has been transferred, in the name of the special local taxes, from the owners to other persons; which is clearly the exclusive province of the judiciary, operating upon persons who have had their day in court. (Chicago vs. Larned, 34 Ill., 203; Weeks vs. Milwaukee, 10 Wis., 258; Creote vs. Chicago, 4 Chicago Legal News, 106; Thurston vs. St. Joseph, 51 Mo., 510.)

Thos. Grace, for Respondents.

I. The tax bill sued on and read in evidence by the respondents, was prima facie evidence of the validity of respondents' claim, and of their right to recover. (Sess. Acts 1871, p. 193, § 1; City to use Creamer vs. Bernoudy, 43 Mo., 552; Hægele vs. Mallinckrodt, 46 Mo., 577.)

II. Sections 9 and 10, Article 8, of the charter of 1867, (Sess. Acts 1867, p. 73,) empower the City Council to pass orinances for the re-construction of streets. An ordinance passed for such purposes is not unconstitutional or void. (Egyptian Levee Co. vs. Hardin, 27 Mo., 495; City of St. Joseph vs. Anthony, 30 Mo., 537; Keferstein vs. Lankton, ante, p. 234; Ruggles vs. Collier, 43 Mo., 355.)

III. The City Council was the sole judge whether or not the street needed to be re-constructed or re-paved, and the Council having enacted an ordinance for that species of work, its decision is final on the point. (Young vs. The City of St. Louis, 47 Mo., 492.)

WAGNER, Judge, delivered the opinion of the court.

The sole ground of objection urged against the judgment in this case is, that the ordinance on which the special tax bill was founded was unconstitutional and void. By that ordinance the City Council of St. Louis ordered certain streets to be re-paved, with what is known as the Nicholson pavement, and authorized the cost or expense of the work to be assessed as a special tax against the owners of the ground fronting on the streets where the work was done. The City Charter clearly grants this power, but it is now insisted, that this provision in the Charter and the ordinance passed thereunder are unconstitutional, or, in effect, take private property for public use without making compensation, and that the power of paving at the property holders' expense, once exercised, becomes exhausted.

If the power to re-pave and assess the costs and expenses against the adjoining proprietors exists, the exigency which demands its exercise would rest primarily with the council, and would not ordinarily be under the supervision or control of the courts. Whether the power exists or is maintainable at all, is the only question.

The only cases which I have been able to find, sustaining the views urged by the appellant, are those decided in the Supreme Court of Pennsylvania. The first and principal case is Hammett vs. Philadelphia, (65 Penn. St., 146,) in which a majority of the court held, that although the original paving of a street was a local improvement and within the principle of assessing the costs on the lots lying upon it, yet, when a street was once opened and paved, it was thereby assimilated with the rest of the city and made part of it, and all the particular benefits to the locality derived from the improvements were then received and enjoyed.

The learned Judge, who delivered the prevailing opinion, discussed with considerable fullness the principle underlying the power to make assessments for local benefits.

The opinion consists mostly of generalizations in regard to established and well admitted principles. It is perfectly true that it would be wholly beyond the scope of legislative power, to authorize a municipality to levy a local tax for general purposes. The burdens of the whole community cannot be shifted to the shoulders of one man, who has only an interest in common with all...