Stone v. City of Jefferson

• Decision Date: 28 April 1927
• Docket Number: 27685
• Citation: 293 S.W. 780,317 Mo. 1
• Parties: Anna Stone, Appellant, v. City of Jefferson et al
• Court: Missouri Supreme Court

293 S.W. 780

317 Mo. 1

Anna Stone, Appellant, v. City of Jefferson et al

No. 27685

Supreme Court of Missouri

April 28, 1927

Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.

Affirmed.

Dumm & Cook for appellant.

(1) The Legislature has no authority to delegate to cities of the third class the right to order improvements of streets without giving the property owners affected the right to protest such improvements, in the manner provided for in Sec 8324, R. S. 1919. (2) Sec. 8325, R. S. 1919, provides that when the council deems it necessary to pave the roadway of any street for a distance of not more than 1200 feet in length so as to connect at both ends with paving, the council may proceed as provided in Section 8324, except that no protest may be filed. It obviously follows that, if the Legislature has the authority to say that a city of the third class may improve a street not more than 1200 feet in length connecting at both ends with improved streets, it has the authority to lengthen the distance of 1200 feet to 12,000 feet or from one end of its city limits to the other, and bar the property owners abutting the improvement the right of protest. If this is true, the only material difference between Section 8324 as it now stands, and Section 8325 as it might be amended, is that in Section 8324 the property owners have the right of protest, and in Section 8325 the property owners have no right of protest. Such a situation would, for all practical purposes, nullify Section 8324 and give councils of cities of the third class the opportunity to run rampant over the property owners of such cities. Such a situation might easily lead to confiscation of property by the building of expensive streets and avenues through poorly located property, or by the opening of new streets that would necessitate great fills and deep cuts. Such a practice would, in many instances, force the abutting property owners to surrender their property rather than be burdened by the tax bills issued in payment of the work. (3) This controversy resolves itself into two questions; first, have property owners the inherent right to protest street improvements, second, if property owners have not this right, can cities of the third class operate under different sections of the statute, one of which gives the property owner the right of protest and the other which denies them that right? If property owners have the inherent right to protest, then Section 8325 R. S. 1919, cannot stand, for the reason that this section specifically provides that no protest may be filed. If property owners have not the inherent right of protest, but this right is only given them through the grace of the Legislature, then the question becomes complicated. Cities of the third class would have the right to operate under separate and distinct laws, which can easily be made identical, except that one prohibits the right of protest, and the other gives the property owner that right. (4) The reports are full of cases that hold that where the right of protest is given, the law must be strictly complied with on this point. The text books state the same thing. (5) The power to levy special assessments in general is not founded on the police power of the state. C. R. I. & P. Railroad v. Ottumwa, 112 Iowa 300, 51 L. R. A. 763. (6) Neither Section 8325, under which this improvement was authorized, nor the ordinances of the City of Jefferson, make the slightest provision for giving the right of protest to the owners of the assessed property, from beginning to end. The entire proceedings, beginning with the statute act and ending with the imposition of a lien upon the property, is purely ex parte. No opportunity, whatever, is given to resist the exaction (unless it be the useless formality of notice to appear and object), or providing for an appeal to a court of law afterwards. The first process really served upon the citizen is a peremptory demand for the payment of the burdensome lien imposed by a municipal corporation without the right of protest, and without even an opportunity to appeal. If this be "due process of law," the provisions of our constitution are meaningless and void.

James T. Blair, Jr., for respondents.

(1) The right of protest is a "statutory privilege" and not an "inherent right." The Legislature can provide for the city council to order paving without any petition or hearing. Washburn v. Chicago, 198 Ill. 506; Parsons v. Grand Rapids, 141 Mich. 467; Chicago v. Basett, 238 Ill. 412; State v. Jersey City, 48 N. J. L. 429; Buchan v. Broadwell, 88 Mo. 31; Palmyra v. Morton, 24 Mo. 593; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. O'Donoghue, 31 Mo. 345; Lockwood v. St. Louis, 24 Mo. 21; St. Louis v. Clemen, 36 Mo. 467; Railroad v. St. Louis, 66 Mo. 228; Farrar v. St. Louis, 70 Mo. 379; City of St. Louis v. O'Eters, 36 Mo. 462. (2) The Legislature may delegate the power of levying special assessments and may delegate power to pursue the same method of imposing special assessments as is used in imposing taxes for general revenue without violating "due process of law" provision of the Constitution. Spencer v. Merchants, 125 U.S. 345. (3) Section 8325, R. S. 1919, provides "notice" and "hearing" thereby complying with the holdings of the courts with regard to the "due process' clause of the Constitution. Sec. 8325, R. S. 1919; Rusk v. Thompson, 156 S.W. 64; Smith v. State Medical Examiners, 140 Iowa 66; Bennett v. David, 90 Me. 105; People v. Applebaum, 251 Ill. 18. (4) Right of appeal is not essential to "due process" of the law. Reetz v. Michigan, 188 U.S. 505; Public Clearing House v. Coyne, 194 U.S. 497.

OPINION

Walker, J.

Anna Stone, a property owner on Locust Street, in the City of Jefferson, brought suit in the Circuit Court of Cole County against the said city and its mayor and a construction company to restrain the city from entering into a contract with the construction company for the improvement of Locust Street under the provisions of Section 8325, Revised Statutes 1919. A temporary restraining order was issued by the Circuit Clerk.

The answer admits the formal allegations of the petition; that an ordinance was passed for the improvement of Locust Street, and that subsequent proceedings were had by the city council for the letting of the contract for said improvements and that a bid for the making of same was entered into with the Pope Construction Company, one of the defendants herein, and that all of said proceedings were had under and in conformity with the provisions of Section 8325, Revised Statutes 1919. Further answering it denied the illegality of said section, and that a compliance with its provisions will not cast a cloud upon plaintiff's title or deprive her of her property without due process of law and that said section is not contrary to pre-existing laws relating to street improvements, but that a compliance with its provisions and the ordinances of said city enacted in conformity therewith constitute a lawful exercise of its municipal authority. Thereafter the defendants filed a motion to dissolve the restraining order, which was by the court sustained and the order was dissolved. From this ruling the plaintiff has appealed.

The formal actions of the city council are admitted to have been in conformity with the ordinances of said city and the laws of the State.

Plaintiff's sole contention is that Section 8325, Revised Statutes 1919, is unconstitutional and void, and in violation of Section 30 of Article 2 of the Constitution of the State of Missouri, in that it attempts to authorize the taxing and taking of plaintiff's property without due process of law; and is contrary to existing law in regard to street improvements; and that the acts of the City of Jefferson, its officers and agents in providing for said improvement of Locust Street are illegal, and will cast a cloud upon the title to plaintiff's real estate with a pretended lien thereon for said street improvement, as stated in her petition.

Section 8325 is as follows:

"When the council of any city of the third class shall deem it necessary to pave, macadamize, gutter, curb, grade or otherwise improve the roadway of any street or avenue for a distance not more than twelve hundred feet in length so as to connect at both ends with paving, macadamizing, guttering, curbing, grading or other improvements either on the same street or avenue or on other streets and avenues, or on the same street or avenue and another street or avenue, the council shall declare such work to be necessary to be done and shall cause the same proceedings to be had as are provided in Section 8324, except that no protest may be filed. The resolution passed and published shall state the fact that anyone desiring to do so may appear before the council at a time stated therein and be heard on the question of the necessity of the work sought to be done, and if anyone does so appear he shall be heard, and the council shall by resolution state the result of such hearing to be a re-affimance of the necessity for the doing of such work or the contrary, as the council may then decide. If no one appears, or if the council re-affirms the necessity of the doing of such work and improvement, then it shall proceed with such work and improvement in the manner as in Article IV of this chapter provided for such work and improvement when no sufficient protest against such improvement is filed within the time limited therefor." [Laws 1917, p. 374.]

The contention of the plaintiff is that the Legislature was without authority to delegate to cities of the third class of which the City of Jefferson is one, the right to order the improvement of streets without giving the property owners affected the right...