Murnane v. The City of St. Louis

• Decision Date: 25 June 1894
• Citation: 27 S.W. 711,123 Mo. 479
• Parties: Murnane, Appellant, v. The City of St. Louis et al
• Court: Missouri Supreme Court

27 S.W. 711

123 Mo. 479

Murnane, Appellant, v. The City of St. Louis et al

Supreme Court of Missouri

June 25, 1894

Appeal from St. Louis City Circuit Court.

Reversed.

Leverett Bell for appellant.

(1) The act of 1893 in question violates section 7 of article 9 of the state constitution. 1 R. S. pp. 92, 303; Laws, 1893, p 59; 2 R. S. p. 2123, sec. 18; State v. Miller, 100 Mo. 439; State v. Bell, 24 S.W. 765. (2) The act of 1893 in question violates sections 20 to 25 inclusive of article 9 of the state constitution; it invades the right of self government in matters of local concern held by the people of St. Louis under the above constitutional provisions; it is an attempt by the state legislature to direct the disbursement of money raised by taxation in St Louis for local municipal purposes; and it is a legislative interference with local matters in St. Louis with which the state has no concern. 2 R. S., sec. 18, p. 2123; 1 R. S sec. 1140, p. 342; 1 R. S., p. 305; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miller, 100 Mo. 439; State v. R. W. Co., 22 S.W. 910; State v. Bell, 24 S.W. 765; State v. Field, 99 Mo. 352.

W. C. Marshall for respondent, City of St. Louis.

(1) There is no merit in the contention that the act of 1893 is a special law. Ever since the decision in the case of State ex rel. v. Hermann, 75 Mo. 340, the law has been settled in this state that an act, which, by its terms may apply to cities that by increase of population may attain a certain population, is a general and not a special law. Rutherford v. Heddens, 82 Mo. 388; Ewing v. Hoblitzelle, 85 Mo. 75; State v. Hayes, 88 Mo. 347; State ex rel. v. County Ct., 89 Mo. 240. State ex rel. v. Miller, 100 Mo. 447; State v. Bell, 24 S.W. 765. (2) There is no merit in the contention that the legislature of Missouri has no power to pass a law which will supersede a charter provision of the city of St. Louis. This has been settled law in this state ever since the decision in the case of Ewing v. Hoblitzelle, 85 Mo. 75, which has been reaffirmed by the supreme court in State ex rel. v. Dolan, 93 Mo. 467. (3) This leaves only the question of whether the legislature had the power to remove the limitation which the charter of St. Louis provided as to the amount of benefits which could be charged for street improvements. Such charges are not taxes nor are they obnoxious to the constitutional provisions requiring that taxes shall be uniform and equal. Adams v. Lindell, 72 Mo. 198; St. Louis v. Spiegel, 75 Mo. 145. (4) The nature and power of special tax bills or assessments by a municipal corporation for improvements can not be regarded in the light of general taxation, and are not considered a burden which every person is placed under by virtue of being a member of the government, but as an equivalent or compensation for the enhanced value which the property derives from the improvement. Sheehan v. Hospital, 50 Mo. 155; Nenan v. Smith, 50 Mo. 525; St. Louis v. Clemens, 52 Mo. 133; St. Louis v. Allen, 53 Mo. 44; Farrar v. St. Louis, 80 Mo. 379. (5) The court can not undertake to determine the quantum of benefit received. Such questions are no longer open in suits on special tax bills. City v. Rankin, 96 Mo. 467. The only defense that can be made in such an action is the validity of the assessment and levy; the amount of benefit can not be raised. City v. Rankin, supra.

H. A. Clover and Ashley C. Clover for respondent, the Heman Construction Company.

The law is not a special law of the character forbade by the state constitution. The repeated, numerous and recent decisions of this court upon what constitutes a special law which may not be enacted by the general assembly, would seem to foreclose all further discussion of the subject. From the time of the decision of the case of State v. Tolle, 71 Mo. 656, down to the time of the decision of the case of State ex rel. v. Bell, 24 S.W. 675, the determinations of this court are quite unanimous to the effect that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and that classification does not depend upon numbers. The decisions of this court (and it is useless to go out of the state for authorities or decisions of the courts of other states on the question) are: State v. Tolle, 71 Mo. 656; State v. Herman, 75 Mo. 349; Rutherford v. Heddens, 82 Mo. 338; Ewing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; State v. Pond, 93 Mo. 606; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Bell, 24 S.W. 675; State ex rel. v. Jackson Co., 89 Mo. 237; Rutherford v. Hamilton, 97 Mo. 543. In the language of the court of appeals (N. Y.) in case In re Church, 92 N.Y. 4: "The force of the law of 1881 is not localized in Kings county and confined to its territory. By its terms it applies to every other county which may prove to be within the constituted class. It is said there is but one such county, and so it was said in Matter of the N. Y. Elevated R. R., 70 N.Y. 328, there was but one elevated railroad. Neither fact at all narrowed the terms of the law. Those terms in each case were broad enough to cover every county in the state if it had the required city."

Barclay J. Judges Sherwood and Burgess dissent.

OPINION

In Banc

Barclay, J.

This is a suit by Julia Murnane as owner of a lot of land on Evans avenue in St. Louis to enjoin the performance of a contract entered into by the city of St. Louis and a construction company, for the improvement of that avenue, to be paid wholly by special tax bills against the property of plaintiff and other owners of adjacent land.

It appears from the petition that the part of the cost of the improvement which will be chargeable against the plaintiff's property, under the contract mentioned, will amount to more than twenty-five per cent. of the assessed value of her property.

It is not necessary to state the contents of the petition at large for the real issue is one of law, and lies in a small compass.

No point is raised as to the regularity of the steps taken by the municipal authorities in letting the contract, further than that, in so doing, they disregarded that part of the charter of St. Louis which declares that, whenever the estimated special taxes to be assessed against any property, for the cost of improving a street, shall, in the aggregate, amount to more than twenty-five per cent. of the assessed value of said property, then the assembly shall provide out of the general revenue for the payment of the amount in excess of the said twenty-five per cent. St. Louis charter, art. 6, sec. 18; R. S. 1889, p. 2123, sec. 18.

This appropriation by the municipal assembly was not made in the case at bar, for the reason that the charter provision, just cited, is said to have been repealed, and the city authorized to charge the entire cost of the improvement by special tax bills upon the adjoining property, by virtue of an act of the general assembly of Missouri, approved, March 14, 1893, entitled, "An act relating to the construction of streets, alleys and public highways in cities of this state having three hundred thousand inhabitants or over." Laws, Mo. 1893, p. 59.

The validity of this act, to repeal the section of the charter above mentioned, is the point of controversy.

In the trial court that issue was raised by demurrer to the petition which the court sustained, and judgment went for defendants accordingly, followed by the present appeal.

No formal questions in relation to the mode of procedure have been started.

Both parties meet the substance of the issue on its merits.

1. The changes sought to be made in the general charter for cities of the first class (sec. 1140, R. S. 1889, identical with that of St. Louis on this point) by the act of 1893, can best be shown by placing their terms in juxtaposition:

CITIES OF THE FIRST CLASS.

Sec. 1140. "The cost of construction of all the foregoing improvements within the city shall be apportioned as follows:

The grading of new streets, alleys, and the making of crosswalks and the repairs of all streets and highways and cleaning of the same, and of all alleys, and crosswalks, shall be paid out of the general revenue of the city; and the paving, curbing, guttering, sidewalks, and the materials for the roadways, the repairs of all alleys and sidewalks, shall be charged upon the adjoining property as a special tax, and collected and paid as hereinafter provided. Whenever the estimated special taxes to be assessed against any property shall, in the aggregate, amount to more than twenty-five per cent. of the assessed value of said property, calculating a depth to such property of one hundred and fifty feet, then the assembly shall provide out of the general revenue for the payment of the amount in excess of the said twenty-five per cent. The board of public improvements shall notify the assembly whenever an ordinance is pending which requires an appropriation out of the general revenue to pay a part of the costs of the improvements therein contemplated."

ACT OF MARCH 14, 1893.

Sec 1. "In all cities of this state which now have or may hereafter have a population of three hundred thousand inhabitants or over, the whole cost of paving, grading, construction or reconstruction, curbing, guttering, crosswalks, sidewalks and the materials for the roadways of all streets, alleys and public highways hereafter constructed, reconstructed or improved in said cities, and the repairs of all alleys and sidewalks, shall be charged upon the property adjoining such improvement as a special tax, and levied, collected and paid in the manner and at the time now provided by law or charter of said cities for the levy,...