Mudd v. Wehmeyer

• Decision Date: 06 August 1929
• Docket Number: 29316
• Citation: 19 S.W.2d 891,323 Mo. 704
• Parties: D. H. Mudd et al. v. Albert Wehmeyer, Presiding Judge, et al., and Joseph F. McMahon, Appellants
• Court: Missouri Supreme Court

19 S.W.2d 891

323 Mo. 704

D. H. Mudd et al. v. Albert Wehmeyer, Presiding Judge, et al., and Joseph F. McMahon, Appellants

No. 29316

Supreme Court of Missouri

August 6, 1929

Appeal from Circuit Court of St. Louis County; Hon. J. C Kiskaddon, Judge.

Reversed.

Jourdan & English for appellant, Joseph F. McMahon; Walter Wehrle for other appellants.

(1) Special tax bills are prima-facie evidence of their validity and where the owner of property affected by the lien of a tax bill does not wait to be sued but seeks to cancel the same it is incumbent upon such plaintiff to point out specific defects, if any, and the burden is upon plaintiff to show that the tax bill is invalid. Sec. 10711, R. S. 1919; Huling v. Flag Stone Co., 87 Mo.App. 349; Exter v. Kramer, 251 S.W. 918; Harris v. Cameron, 265 S.W. 862. (2) An act of the Legislature is presumed to be constitutional. Bank v. Clark, 252 Mo. 20. (3) Special taxes or assessments for public improvements are referable to the taxing power, the exercise of which power is legislative and requires no trial by jury. Bates v Realty Co., 306 Mo. 312; Barber Asphalt Paving Co. v. French, 158 Mo. 534; French v. Paving Co., 181 U.S. 343; Stone v. Jefferson City, 293 S.W. 780. (4) No hearing is required for the levying of a special tax to pay for public improvements where the Legislature itself specifies what property is benefited because the power is legislative and not judicial, and hence the law in question does not violate the due-process requirements of the Constitution. Naylor v. Harrisonville, 207 Mo. 341; Barber Asphalt Paving Co. v. French, 158 Mo. 534; French v. Paving Co., 181 U.S. 324; Wagner v. Baltimore, 239 U.S. 207; Withnell v. Construction Co., 249 U.S. 63; Spencer v. Merchant, 125 U.S. 345; Mullins v. Cemetery Assn., 268 Mo. 691. (5) A special tax is merely a lien on the property against which it is assessed and its payment can be enforced only through a foreclosure of the lien in a court hearing; so that even in cases where the local court or municipal assembly fixes the taxing district, no notice to the property owners nor hearing is required prior to the assessment of the tax, but the suit on the special tax bill affords due process of law. Bates v. Realty Co., 360 Mo. 312; Saxton Nat. Bank v. Carswell, 126 Mo. 436; Embree v. Road Dist., 257 Mo. 593. (6) In making assessments for public improvements the Legislature need not afford any opportunity for protest or petition, and there can be no discrimination and hence no denial of equal protection of the law where a portion only of property owners are permitted to petition or protest. Buchan v. Broadwell, 88 Mo. 31; Field v. Paving Co., 194 U.S. 621; Bank v. Clark, 252 Mo. 20; Stone v. Jefferson City, 293 S.W. 780. (7) In taxing a citizen with his proportionate share of the cost of a pavement abutting upon his lot there is no taking of property for public use. Barber Asphalt Paving Co. v. French, 158 Mo. 534.

Jos. C. McAtee for respondents.

(1) The petition stated a cause of action in equity and plaintiffs were entitled to equitable relief. Lockwood v. St. Louis, 24 Mo. 20; Ex parte Young, 209 U.S. 123; International News Service v. Associated Press, 248 U.S. 215, 2 A. L. R. 293; Norwood v. Baker, 172 U.S. 269. (2) Sections 10708-9-10-11 are and were invalid, because they failed to provide for notice or due process of law and authorized a proceeding without a hearing. Meyer v. St. Louis, 180 Mo. 391; Springfield to Use v. Weaver, 137 Mo. 672; Kansas City v. Duncan, 135 Mo. 584; Dartmouth College Case, 4 Wheat. 518; Cornet v. St. Louis County, 240 S.W. 107. (3) The action of the county court was a plain case of appropriating private property for public use without compensation. 2 Cooley on Taxation (3 Ed.) 1255. (4) Section 10708 is not mandatory upon the county court. It gives it discretion and vests it with power, in the exercise of that discretion, to make the improvements, and in the exercise of said power respondents were entitled to be heard. Meyer v. St. Louis, supra; Bebee v. Magoon, 122 Iowa 94; Cooley on Taxation (3 Ed.) 1238-1241. (5) The county court acted judicially, and not in a legislative capacity, in making the order for the improvement of Edmund Avenue. Haeussler Inv. Co. v. Bates, 306 Mo. 392. (6) Respondents are and were denied the equal protection of the law, because in other cities in St. Louis County notice is required. Art. XIV, U.S. Constitution; Duncan v. Missouri, 152 U.S. 377.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

This case is here on defendants' appeal from the judgment of the Circuit Court of St. Louis County enjoining the collection of and ordering cancelled certain tax bills issued for street improvement in an unincorporated residential section of said county. The work was done and the tax bills were issued pursuant to Sections 10708-9-10-11, Revised Statutes 1919. Plaintiffs were owners of real estate in blocks 3 and 4 of Darby Hill Place in St. Louis County, fronting on a highway called Edmund Avenue. Defendants are the judges of the county court, the county clerk, county highway engineer and the contractor to whom was awarded the contract for improving a portion of said highway. Plaintiffs sued to enjoin the letting of the contract, the doing of the work and the issuance of tax bills therefor and in the petition on which the case was tried, evidently an amended petition, they also prayed for cancellation of the tax bills which apparently had been issued at that time. Defendants, other than the contractor, joined in an answer in the nature of a general denial, and the contractor filed a separate answer, also a general denial.

The court's judgment enjoins the county court judges from letting the contract referred to and from levying the special assessment to pay for the work, enjoins the clerk from issuing the tax bills and adjudges the tax bills void and directs cancellation of the same. But from allegations in the petition on which the case was tried and from the agreed statements of facts, and in view of the provisions of Section 10710, supra, that tax bills are to be issued only on completion of the work, we conclude that at the time of the trial the work had been done and the tax bills therefor issued, so that for practical purposes the suit had resolved itself into an action to cancel the tax bills and the judgment may be treated accordingly.

It is unnecessary to set out or summarize the petition as the issues to be determined will sufficiently appear from the agreed statement of facts upon which the case was submitted and determined below. From this agreed statement the facts appear as follows:

1. Plaintiffs are property owners owning property in "lots" (blocks?) 3 and 4, Darby Hill Place, fronting on Edmund Avenue from its intersection with St. Louis Avenue northward a distance of one block, and all of the plaintiffs except seven named "are resident property owners owning property fronting and abutting upon said Edmund Avenue between the points mentioned."

2. That defendants Wehmeyer, Gardner and Rott are and were at all times mentioned judges of the county court, defendant Miller is and was county clerk, defendant Jablonsky county highway engineer, and defendant McMahon the contractor to whom was awarded the contract and who has furnished the labor and materials and performed the contract for the improvement and to whom special tax bills for the cost thereof have been issued "against the property fronting upon the said portion of Edmund Avenue so paved."

3. That the contract was awarded to McMahon on October 3, 1927, by an order of the county court after a petition had been filed with the court signed by a majority of the property owners resident on said Edmund Avenue from its intersection with St. Louis Avenue northward a distance of one block; that Edmund Avenue is three blocks long, running from St. Louis Avenue north to Greer Avenue, and only one block thereof, viz., from St. Louis Avenue northward a distance of one block, was mentioned in the petition and ordered improved, "but there are four owners of property who reside on and own property fronting on that part of Edmund Avenue in the two blocks north of that which was ordered to be improved and no special tax bills have been issued against property of said four owners."

4. All steps required by Sections 10708, 10709, 10710 and 10711, Revised Statutes 1919, were duly taken by the county court, except that plaintiffs contend that as a matter of law the owners of property who reside on the two northerly blocks of Edmund Avenue, not improved, should be counted in determining whether the petition was signed by a majority of the owners resident on such highway and liable to taxation therefor, while defendants contend that as a matter of law only the owners of property on said Edmund Avenue from its intersection with St. Louis Avenue northward a distance of one block (the part improved) should be counted in determining that question.

5. There was no change of grade made in the roadway of Edmund Avenue on the part improved.

6. The street improved is in a resident district in the County of St. Louis, Missouri, having a population of more than 75,000 inhabitants.

Plaintiffs in the court below challenged the constitutionality of the statutes above referred to under which the improvement was made, on several grounds. The ground chiefly relied upon and the only one seriously urged in this court is that the statutes in question do not provide for notice or process to interested parties nor for a hearing, and are therefore repugnant to the Fifth and Fourteenth Amendments to the Constitution of the United States, and to Section 30, Article II, of the Constitution of Missouri, forbidding the taking of...