Skinker v. Heman

• Decision Date: 21 February 1899
• Parties: Skinker, Appellant, v. Heman et al
• Court: Missouri Supreme Court

49 S.W. 1026

148 Mo. 349

Skinker, Appellant, v. Heman et al

Supreme Court of Missouri

February 21, 1899

Transferred from St. Louis Court of Appeals.

Circuit court judgment affirmed.

T. K Skinker pro se.

(1) The ordinance is unreasonable and oppressive, as entailing upon plaintiff a great and unecessary expense and is therefore void. Corrigan v. Gage, 68 Mo. 541; St. Louis v Weber, 44 Mo. 547; Cape Girardeau v. Riley, 72 Mo. 220; Kelly v. Meeks, 87 Mo. 396; Morse v. Westport, 110 Mo. 502; Warren v. Paving Co., 115 Mo. 580; St. Louis, v. Russell, 116 Mo. 258; Tarkio v. Cook, 120 Mo. 9; Halpin v. Campbell, 71 Mo. 493; Plattsburg v. Riley, 42 Mo. 22; Hannibal v. Telegraph Co., 31 Mo.App. 32; White v. Railroad, 44 Mo.App. 540; James v. Pine Bluff, 49 Ark. 205; Waters v. Leech, 3 Ark. 110; Comm'rs v. Gas Co., 12 Pa. St. 318; Ex parte Whitwell, 98 Cal. 73; St. Paul v. Laidler, 2 Minn. 190; Mankato v. Fowler, 32 Minn. 364; State Center v. Barenstein, 66 Ia. 249; St. Louis v. Packing Co., 141 Mo. 375; Chaddock v. Day, 75 Mich. 527; Mason City v. Barngrover, 26 Ill.App. 296; Kip v. Patterson, 26 N. J. L. 298; Crawford v. Topeka, 51 Kan. 756; Bank v. Sarlls, 129 Ind. 201; Mayor v. Dry Dock, etc., Co., 133 N.Y. 104; Railroad v. Mayor, 47 N. J. L. 286; Nicoulin v. Lowery, 49 N. J. L. 391. The power to pave and repave, though a continuing power, does not warrant the action taken in this case. St. Louis City Charter, art. 6, secs. 15 and 18; McCormick v. Patchin, 53 Mo. 35; Municipality v. Dunn, 10 La. Ann. 57; Wistar v. Philadelphia, 80 Pa. St. 505; Smith v. Kingston, 120 Pa. St. 357; Heman v. Handlan, 59 Mo.App. 490. (2) Injunction is a proper remedy. Gardner v. Terry, 99 Mo. 523; State v. Philips, 97 Mo. 339; Martin v. Jones, 72 Mo. 24; State v. Tiedeman, 69 Mo. 306; Ogden v. Armstrong, 168 U.S. 224; Harrington v. Utterback, 57 Mo. 519; Vogler v. Montgomery, 54 Mo. 577; Rubey v. Shane, 54 Mo. 207; Newmeyer v. Railroad, 52 Mo. 81; Ranney v. Bader, 67 Mo. 476; State v. Columbia, 111 Mo. 365; Overall v. Ruenzi, 67 Mo. 203; Clifton v. Anderson, 40 Mo.App. 622; Ritterskamp v. Stifel, 59 Mo.App. 510; Russell v. Lumber Co., 112 Mo. 40; Leslie v. St. Louis, 47 Mo. 474; Fowler v. St. Joseph, 37 Mo. 228; Lockwood v. St. Louis, 24 Mo. 20; Johnson v. Duer, 115 Mo. 366; Michael v. St. Louis, 112 Mo. 610.

W. C. Marshall for respondents.

(1) The city has full power to issue tax bills. City Charter, art. 3, sec. 26, par. 2; Ib. art. 6, secs. 15 and 18; Palmyra v. Morton, 25 Mo. 595; 27 Miss. 224; 5 Gilm. 405; 1 McCook, 77; 9 Ben. Mon. 526; 9 Humph. 252; 4 Comst. 423; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. O'Donoghue, 31 Mo. 345; Lockwood v. St. Louis, 24 Mo. 20; St. Louis v. Clemens, 36 Mo. 497; Eyerman v. Blaksley, 78 Mo. 145; State v. Leffingwell, 54 Mo. 458; McCormick v. Patchin, 53 Mo. 35; Farrer v. St. Louis, 80 Mo. 379; Estes v. Owen, 90 Mo. 113; Morley v. Carpenter, 22 Mo.App. 640; Smith v. Tobener, 32 Mo.App. 609. (2) The power to pave carries with it the power to repave, repair or reconstruct whenever the municipal authorities determine that it is necessary, and such decision is not reviewable by the courts. Farrar v. St. Louis, 80 Mo. 392; McCormack v. Patchin, 53 Mo. 36; Estes v. Owen, 90 Mo. 115; Morley v. Carpenter, 22 Mo.App. 640; Smith v. Tobener, 32 Mo.App. 609; State ex rel. v. Railroad, 85 Mo. 277; Buchan v. Broadwell, 88 Mo. 36; State ex rel. v. City of Kansas, 89 Mo. 40; Dennison v. City of Kansas, 95 Mo. 430; St. Joseph v. Owen, 110 Mo. 455; Gibson v. Keyser, 16 Mo.App. 405; Allen v. Krenning, 23 Mo.App. 569; Stifel v. Brown, 24 Mo. App 108; Weber v. Schergens, 28 Mo.App. 590. (3) Ordinance 16,630, is a valid ordinance regulation, and is not void on the ground that it is unreasonable. (4) Plaintiff has an adequate remedy at law, and hence is not entitled to maintain this proceeding. There is no fact relied on in this case which could not be relied on equally as effectively in a suit on the special tax bill, and hence a court of equity has no jurisdiction over the matter. Michael v. St. Louis, 112 Mo. 610; Winter v. City Council, 9 So. Rep. 366; McClanahan v. West, 100 Mo. 323; Bedecke v. Ziegenhein, 122 Mo. 239.

BRACE, J. Sherwood, Marshall and Valliant, JJ., not sitting; Marshall, J., having been of counsel.

OPINION

In Banc.

BRACE 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. St. Louis, 80 Mo. 379. 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, 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. [Art. 3, sec. 26, par. 2.]

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." [Art. 6, sec. 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." . . . Art. 6, sec. 18.

In the pursuance of these charter provisions ordinances numbered 16630 and 1343 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 the 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 numbered 16330 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. St. Louis, 131 Mo. 26, 33 S.W. 480, 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. 651; McCormack v. Patchin, 53 Mo. 33; Farrar v. City of St. Louis, 80 Mo. 379; Estes v. Owen, 90 Mo. 113, 2 S.W. 133.] 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, and paving the roadways with granite blocks laid on a concrete foundation, the cost of which was charged as a lien upon the adjoining property, and it was sought by an abutting property owner to enjoin the city authorities from executing the ordinance. The same was upheld, and the injunction refused, the court saying in the course of the opinion: "The power conferred upon the city to 'pave and otherwise improve its streets' is a continuing one, and it was said in McCormack v. Patchin, 53 Mo. 33, where the construction of the above words was invoked, that 'the power to grade and improve its streets is a legislative...