St. Lows Malleable C. Co. v. George G. Prendergast Const. Co.

• Decision Date: 09 April 1921
• Docket Number: No. 21710.,21710.
• Citation: 288 Mo. 197,231 S.W. 989
• Parties: ST. LOWS MALLEABLE CASTING CO. v. GEORGE G. PRENDERGAST CONST. CO.
• Court: Missouri Supreme Court

231 S.W. 989

288 Mo. 197

ST. LOWS MALLEABLE CASTING CO. v. GEORGE G. PRENDERGAST CONST. CO.

No. 21710.

Supreme Court of Missouri, Division No. 1.

April 9, 1921.

Motion for Rehearing and Motion to Transfer to Court in Banc Denied June 6, 1921.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Suit by the St. Louis Malleable Casting Company against the George G. Prendergast

Construction Company. From judgment dismissing the bill, plaintiff appeals. Affirmed.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to cancel and set aside a certain tax bill issued against the property of the former for the construction of Baden sewer district No. 2, amounting to $9,168.86. The trial resulted in a judgment for the defendant, and the plaintiff duly appealed the cause to this court. The petition charged substantially the following facts:

The petition of the plaintiff alleged:

That the board of aldermen of the city of St. Louis, upon the recommendation of the board of public service of the city, adopted an ordinance, approved March 22, 1915, establishing a sewer district to be known as "Baden sewer district No. 2," which ordinance is set out in full in the petition. That thereafter the board of aldermen enacted another ordinance, prepared and recommended by the board of public service for the construction of the sewer in said district, which ordinance was approved July 21, 1915, and under which the board of public service was authorized and directed to let a contract for the construction work. The ordinance further provided for the acceptance by the city of St. Louis of sewers conveyed to the city by the St. Louis Terminal Railway Company by deeds, and that part of the sewers so conveyed should be incorporated in the system to be constructed under authority of the ordinance. The ordinance further provided that, when the sewers were fully completed, the board of public service should cause the entire cost and expense thereof to be computed, and should levy and assess such cost and expense as a special tax, in accordance with the requirements of the charter of the city, and cause to be issued a special tax bill against each lot or parcel of ground liable,' in the manner provided by the charter. That the defendant was awarded the contract for the construction of the sewer, and that on December 22, 1918, the city of St. Louis issued and delivered to the defendant special tax bills for the aggregate amount of $65,744.67, being the entire cost for the construction of said sewer, as calculated by the board of public service and as agreed upon in the contract between the city and the defendant, amongst which bills was one issued against the property of plaintiff for $9,168.86. That plaintiff is the owner in fee of the tract of land described in said tax bill, against which said tax bill was issued, which tract contains approximately 320,210 square feet.

That the said assessment and charge in said tax bill is excessive, unlawful, and void, for the reason that the said taxing district established by ordinance as aforesaid does not include large areas of land which were in the drainage area of said sewer, and which properties stand in the same relative position as plaintiff's with respect to the said sewer, and derive, and are so situated as to be capable of deriving, the same amount of benefit from said sewer as the property of plaintiff. That a large tract of land immediately north of plaintiff's property, hereinafter referred to as the "Kuhs" property, and containing approximately the same area as plaintiff's property, and which property is so situated with respect to the said sewer as to receive as great or greater benefit. therefrom than the said property of plaintiff, was omitted from the said taxing district and exempted from taxation for any portion of the cost of the construction of said sewer. That a large tract of land fronting on the west side of Broadway and belonging to the Calvary Cemetery Association, and which property consists of a number of acres, and is in the natural drainage district of said sewer, which property is in the same relative position with respect to said sewer as the property of plaintiff, and derives as great benefit therefrom, was also omitted from said taxing district and exempted from the payment of any portion of the cost of said sewer. That by reason of the omission and exemption of the said large tracts of land from their just share of the said tax to pay the cost of construction of said sewer an unreasonable and excessive proportion of the said tax has been assessed against the said property of plaintiff.

That the ordinances aforesaid, the provisions of the charter of the city of St. Louis purporting to authorize the board of aldermen to establish a sewer district designating lands of private owners to be specially taxed to pay the entire cost of said sewer, violate the fourteenth article of the amendments to the Constitution of the United States, in that they determine that said lands within the district prescribed by said ordinances would be benefited by said sewer and should be and were especially assessed therefor, as well as the apportionment of said taxes between the several lots or parcels of land and their respective owners within said district, without any hearing being accorded to the owners of said lands upon such determination, thereby denying plaintiff due process of law; that by the establishment of said sewer district and the imposition of said entire cost of the said district sewer upon the property therein, as ordained by the ordinance aforesaid, and by the exclusion of the land as aforesaid from the taxation of the cost of said sewer, although such lands so excluded will be drained by said sewer and share equally with the property of plaintiff and other properties in said defined district in the benefits resulting from the construction of sewer, plaintiff has been denied due process of law, the equal protection of the law guaranteed to plaintiff by the said fourteenth article of the amendments to the Constitution of the United States.

That the establishment of said sewer district and the levying of said tax by the ordinance aforesaid was and is arbitrary, unjust, oppressive, and fraudulent, and by the said board of public service known to be so at the time of its recommendation of said ordinance to said board of aldermen, and that the said board of public service then knew that the aforesaid additional parcels of land would be drained by the said sewer and derive all of the benefits and advantages therefrom which every other property within the said defined sewer district can or will derive therefrom, and notwithstanding which the ordinances so recommended by the said board of public service to said board of aldermen and by the latter enacted imposed the whole cost of said sewer upon the lots within the said sewer district as defined by the said ordinance, and no part of said cost upon such additional lands. That the said board of public service in recommending to the board of aldermen the said ordinance establishing the said district acted oppressively, arbitrarily, and fraudulently in this:

That prior to the establishment of the said sewer district, for the construction of said district sewer, plaintiff had, under permit of the then board of public improvements of said city, the predecessor of said board of public service, constructed a sewer system upon its said land, which private system was laid upon plaintiff's said property, along a private right of way, to a public sewer known as "Baden public sewer," with which sewer said private sewer of plaintiff was connected. That plaintiff had constructed the said sewer under permit as aforesaid at great cost and expense, and said sewer was adequate for taking care of the sewage and surface water from plaintiff's said land. That plaintiff's said property has no dwelling buildings upon it, the only buildings erected upon its said land being foundry, factory, and office buildings occupied and used by it for the transaction of its business. That the tract of land hereinabove mentioned as the "Kuhs" property, and which has been excluded from said taxing district as aforesaid, is and has been improved for a number of years by a large number of tenement and flat buildings occupied by more than 40 families. That prior to the establishment of said taxing district for the construction of said district sewer a short line of private sewer, for carrying off foul water, had been laid in said "Kuhs" property and was connected with plaintiff's private sewer above mentioned, and the sewage from said "Kuhs" property thus drained through said private sewer into said Baden public sewer. That in the planning of said district sewer it was provided for the laying of a line of said sewer along and upon a strip 7½ feet in width, being the western 7½ feet of said "Kuhs" property, extending southwardly from the south line of Christian avenue, and it was further provided in said plan for the laying of a line of said district sewer upon and along a strip being the western 10 feet in width of plaintiff's property hereinabove described and extending southwardly from the south line of Antelope street to the north line of Thatcher avenue, a distance of 495 feet, more or less.

That the city of St. Louis obtained from the plaintiff, without any consideration moving to plaintiff therefor, a deed conveying the easement of right of way for said district sewer along and upon the said strip 10 feet in width. That said city also obtained a conveyance from the owners of the said "Kuhs" property for the easement or right of way for said district sewer in said strip 7½ feet in width. That the deeds for the said sewer right of way recite a nominal consideration of $1. That, notwithstanding the deed to the sewer right of way along said Kuhs property purported to be a conveyance in consideration...