Skinker v. Heman

• Decision Date: 21 February 1899
• Citation: 49 S.W. 1026,148 Mo. 349
• Parties: SKINKER v. HEMAN et al.
• Court: Missouri Supreme Court

49 S.W. 1026

148 Mo. 349

SKINKER v. HEMAN et al.

Supreme Court of Missouri.

February 21, 1899.

INJUNCTION — REPAIRING SIDEWALKS — ORDINANCES.

1. Injunction lies to enjoin the issue of a special tax bill against premises to pay for street improvements, on the ground that the ordinance providing therefor is unreasonable and oppressive, notwithstanding any such right to urge such facts as a defense to an action on the tax bill.

2. An ordinance requiring that whenever a sidewalk located in the Western district of the city of St. Louis, as defined by metes and bounds therein set out, becomes out of repair, the same shall be repaired or replaced by a pavement of stone, at the cost of the adjoining property owner, as allowed by the city charter, is not unreasonable and oppressive, as to one affected thereby, merely because his brick sidewalk can be repaired for $7, while a stone pavement will cost $300.

In banc. Suit by Thomas K. Skinker against John C. Heman and others for injunction. A judgment sustaining a demurrer to the petition was reversed by the St. Louis court of appeals (64 Mo. App. 441), and the case is certified to the supreme court. Judgment of circuit court affirmed.

T. K. Skinker, pro se. W. C. Marshall, for respondents.

BRACE, P. J.

This is an appeal from a judgment of the St. Louis circuit court sustaining a demurrer to plaintiff's petition. The appeal was taken to the St. Louis court of appeals, where the judgment of the circuit court was reversed, but the case was certified to this court, for the reason that one of the judges of the court of appeals was of the opinion that its decision was in conflict with the decision of this court in Farrar v. City of St. Louis, 80 Mo. 392. The petition is set out in full in the report of the case (Skinker v. Heman, 64 Mo. App. 441), and need not be repeated here. By the charter of the city of St. Louis (article 3, § 26, par. 2), the mayor and assembly have power, by ordinance, "to establish, open, vacate, alter, widen, extend, pave or otherwise improve and sprinkle all streets, avenues, sidewalks, alleys, wharves and public grounds and squares, and provide for the payment of the costs and expenses thereof in the manner in this charter prescribed," etc. And by the charter it is further provided "* * * that nothing in this article shall be so construed as to prevent the board of public improvements, through the proper officer thereof, from annually letting and entering into contracts on the first day of July of every year, for the grading, constructing, reconstructing and repairing all sidewalks and repairing street, alley and gutter paving and such other similar work which may be ordered by ordinance, or may become necessary to be done during the year" (article 6, § 15), and that "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 cross-walks, and the repairs of all streets and highways, and cleaning of the same, and of all alleys and cross-walks, 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 * * *" (article 6, § 18). In pursuance of these charter provisions, Ordinances Nos. 16,630 and 1,343, set out in the petition, were duly passed, under the provisions of which the plaintiff was required to have the pavement of the sidewalk in front of his premises, which was out of repair, reconstructed with artificial stone flagging, to do which, however, he refused; and thereupon the city had the work done, at a cost of $300. The plaintiff alleges that the defendants, the president of the board of public improvements and the comptroller of the city of St. Louis, are about to issue a special tax bill against plaintiff's said premises for the amount of said cost, and prays that they be enjoined from doing so, on the ground that said Ordinance No. 16,630 is unreasonable and oppressive.

1. The defendants contended in the court of appeals, as they do here, that, as the facts relied on for injunctive relief could be as effectively urged as a defense to an action on the tax bill, the relief prayed for should be denied, on the ground that plaintiff has an adequate remedy at law. The court of appeals refused to sustain this objection to the petition. While there has been a contrariety of opinion among the members of this court upon this subject, it is one of those rules of procedure, the settlement of which is more important than the way of its settlement; and this question having been maturely considered and decided by the court in banc in the recent case of Verdin v. City of St. Louis, 131 Mo. 26, 33 S. W. 480, and 36 S. W. 52, and this ruling of the court of appeals being in harmony with the conclusion reached by a majority of the court in that case, we think it ought to be sustained, and hereafter maintained as the settled doctrine of this court on this subject.

2. On the facts of this case, as disclosed by the petition, we do not deem it necessary to go into any extended discussion of the general question of the power of the courts to declare an ordinance of a municipality void because unreasonable and oppressive. Under the power given to the city by the charter to "pave or otherwise improve" its streets, and to charge the cost of the same "upon the adjoining property as a special tax," the city had power to require the pavement in front of plaintiff's premises to be repaved at his expense. Hoffman v. City of St. Louis, 15 Mo. 652; McCormack v. Patchin, 53 Mo. 33; Farrar v. City of St. Louis, 80 Mo. 379; Estes v. Owen, 90 Mo. 115, 2 S. W. 414. In the case of Farrar v. City of St. Louis, under a like ordinance passed in pursuance of the power conferred by the foregoing charter provisions, the pavement on Washington avenue, from Fifth to Twelfth street, was required to be reconstructed by taking up and removing the old pavement,...