Page v. City of St. Louis

• Decision Date: 31 October 1854
• Parties: PAGE, Defendant in Error, v. THE CITY OF ST. LOUIS, Plaintiff in Error.
• Court: Missouri Supreme Court

20 Mo. 136

PAGE, Defendant in Error,

v.THE CITY OF ST. LOUIS, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1854.

1. The illegal exemption by city ordinance of the property of one tax payer from assessment for a special sewer tax, will not authorize an injunction to restrain the city from collecting the assessment against another tax payer, not exceeding the amount which the city was au thorized to impose; certainly not, unless it appears that, upon payment of the assessment sought to be enjoined, the plaintiff will have paid more than would have been his proportion had it not been for the exception.

Error to St. Louis Circuit Court.

The case is stated in the opinion of the court. It was argued by Mr. Gantt, for the city, and by Mr. Shepley, for the defendant in error.

Mr. Gantt, for the city relied upon the following points:

1. The agreement made by the city with Lucas, under section nine of the ordinance, was legal, his lot only being exempt from taxation when its due proportion of the sewer debt had been fully paid; and being legal when made, no subsequent change in the value of the property, by putting up improvements or otherwise, could render it illegal. 2. No inequality in the tax is produced by the exemption, because the money paid by Lucas must be taken to have been applied to the payment of a portion of the sewer debt, and it is only for the remainder of the debt that the remainder of the property is taxed. 3. The property of the defendant in error is bound to pay one half of one per cent. per annum, during the existence of the debt, towards its extinction. He has only paid the assessment for one year. Under no circumstances, could he have less than one-half of one per cent. to pay for the second year, unless the whole debt is liable to be extinguished by two years' taxes, which is contrary to the whole tenor of the petition. As he shows no present injury by reason of the composition with Lucas, but at most, only a possibility of a future injury, his bill should be dismissed. 4. At most, if the contract with Lucas is illegal, Page is only entitled to be put in the same position that he would occupy, if the contract had not been made. He can only call for a reduction of his tax to what it would have been, if the lot of Lucas had been taxed also. It cannot be that the omission of one lot from assessment renders the whole assessment void, and authorizes the courts to stop the collection of any part of the tax by injunction.

Mr. Shepley, for defendant in error, relied upon the following points:

1. The act of March 12, 1849, contemplates that the sewer tax shall be levied and collected annually, according to the varying value of the property. 2. If the city fails to levy the tax upon any particular piece of property in a sewer district for any year, then persons whose property is assessed can restrain the city from enforcing the tax against them, unless the city can show that the omission was made through inadvertence, or that the property omitted was legally exempt. The right to remit taxes already assessed is not denied, because no greater amount would thereby be imposed upon other property, and the city alone would suffer inconvience; but the power of the city to exempt any particular portion of the city from assessment, and to apportion the public burdens upon the remainder is denied. Even however, if we admit the general power, it has no application to this case, where, by the act, a power is given to do a particular work in a particular part of the city, and to assess those who are supposed to be benefitted by it, for its cost, in the way therein provided. 3. Unless the assessment upon plaintiff's property is made in strict conformity with the act, the lien therein provided does not attach, and the city has no power to sell the property for it, and the plaintiff is entitled to have the sale enjoined. 4. The 9th section of ordinance No. 2498, under which this commutation and consequent exemption is made, is repugnant to the plain provisions of the act. So far as this suit is concerned, it is unimportant whether this section is absolutely void, or whether it is binding on the city. If it is absolutely void, then the plaintiff is entitled to relief, so long as the city continues to treat it as a valid ordinance. If it is binding on the city, as against those who have availed themselves of its privileges, then the city must continue to assess the property as if it was not exempt, and itself assume the payment of the assessments; and not having done so, the plaintiff is entitled to relief. 5. The petition clearly shows that this commutation and exemption of the lots of Lucas and others operates and must continue to operate to the injury of plaintiff. How far it was detrimental, it was not in the power of the plaintiff to state in dollars and cents. It is shown that property liable to the sewer tax, in amount equal to the value of the improvements put upon the lot of Lucas, was illegally exempted from the tax for the whole period that it should continue to be imposed. It is no answer to say that possibly, by change of circumstances, it may happen that no injury will be done. According to this idea, the plaintiff would be entitled to no relief, however illegal the exemption is, until it could be shown, at the final winding up, mathematically, what injury he had sustained, and then he would be precisely in the situation where he could obtain no relief. 6. The plaintiff is entitled to have relief, although he does not in his petition show to what extent the assessment is illegal, nor offer to pay such proportion of the amount assessed as may be legal. It is beyond his power to say what the legal assessment should be. It is for the city to make a legal assessment, and until this is done, no lien can be enforced against the plaintiff's property. 7. There is no public inconvience or damage occasioned by...