The City of St. Joseph To Use of Gibson v. Owen

• Decision Date: 06 June 1892
• Citation: 19 S.W. 713,110 Mo. 445
• Parties: The City of St. Joseph to use of Gibson v. Owen, Appellant
• Court: Missouri Supreme Court

19 S.W. 713

110 Mo. 445

The City of St. Joseph to use of Gibson v. Owen, Appellant

Supreme Court of Missouri, First Division

June 6, 1892

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Affirmed.

Brown & Craig for appellant.

(1) The statute under which the mayor and council attempted to act provides for the assessment of the cost of the sewer against the entire district, and no assessment can be made which does not include it all. R. S. 1889, sec. 1429. If the statute be intended to authorize the assessment of the whole property of the district for the construction of only a part of the improvement by which it was to be benefited, then it is to that extent unconstitutional and void. Hanscom v Omaha, 11 Neb. 43; Thomas v. Gain, 35 Mich 160. If the ordinance shows on its face, as in this case that the principle upon which the assessment is to be made is unlawful, the whole must fall. State v. Chamberlain, 37 N. J. L. 388. (2) In this case the assessment is simply an attempt to appropriate private property to public use, without any compensation whatever. Tide Water Co. v. Coster, 18 N.J.Eq. 519. To sustain an equal assessment for benefits arising from the building of a sewer, it is necessary that the drainage facilities be available to the lands so assessed. Thomas v. Gain, 35 Mich. 155. And the assessment cannot be sustained if the lands on which it is imposed cannot be drained into it. Ibid. The sewers authorized by law to be constructed in St. Joseph were public, district and private sewers. Each class were to be constructed as provided by ordinance, and the parties for whose benefit they were to be constructed were required to pay for the two last-named classes. R. S. 1889, secs. 1428, 1429, 1430. In this case the defendant and certain of his neighbors had, at their own expense, as provided by law, constructed a private sewer along the line of the property in question, sufficient to properly drain it. It could, then, do him no possible good to connect with the sewer for which he is now asked to pay. It requires but little moral perception to enable us to realize that this assessment is simply a confiscation of property, when to be benefited by it he must abandon the sewer for which he has paid, and go to the additional expense of providing new connections. (3) The size of the inlets, man-holes, etc., and the material to be used in their construction should have been specified in the ordinance. St. Joseph v. Wilshire, 47 Mo.App. 125. (4) This charge can only be sustained upon the theory of compensation for benefits accruing to the particular land by the improvement. Otherwise it would violate those provisions of the state constitution which require that taxes "shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax" (Const., art. 10, sec. 3), and that "all property subject to taxation shall be taxed in proportion to its value." Sec. 4.

Porter & Woodson for respondent.

(1) Sections 3 and 4, article 10, of the constitution, are not infringed by section 4791 of the Revised Statutes, 1879, authorizing a charge upon lots in a sewer district to pay for the construction of district sewers. Those sections of the constitution apply "only to taxation in its usual ordinary and received sense, to taxation for general state, county, city and town purposes." Lockwood v. St. Louis, 24 Mo. 20; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Shehan v. Samaritan Hospital, 50 Mo. 155; Farrar v. St. Louis, 80 Mo. 390; City of Kansas v. Ridenour, 84 Mo. 259; State ex rel. v. City of Kansas, 89 Mo. 39; Eyerman v. Blakesley, 78 Mo. 149; Adams v. Lindell, 5 Mo.App. 210; affirmed 72 Mo. 198; Cooley on Taxation [2 Ed.] p. 207; 2 Dillon on Municipal Corporations, secs. 616, 752, 777. (2) Special tax bills for the construction of district sewers are sustained, not only on the ground of special benefits, but also as a tax under the police power. Cooley on Taxation [2 Ed.] p. 586; Rutherford v. Hamilton, 97 Mo. 547; Palmyra v. Morton, 25 Mo. 593; Farrar v. St. Louis, 80 Mo. 379; Philadelphia v. Tryon, 35 Penn. St. 401. (3) Such charges may be imposed without regard to actual benefits. Rutherford v. Hamilton, supra; Kees v. Denver, 10 Colo. 123; Morrison v. Hershire, 32 Iowa 271; Warren v. Henly, 31 Iowa 31. (4) "It has been repeatedly decided that the legislative act of assigning districts for special taxation on the basis of benefits cannot be attacked on the ground of error in judgment regarding the special benefits, and defeated by satisfying the court that no special and peculiar benefits are received." Cooley on Taxation [2 Ed.] p. 640; City of St. Louis v. Oeters, 36 Mo. 461; Litchfield v. Vernon, 41 N.Y. 133. (5) The power of the city council by ordinance to establish sewer districts, to cause sewers therein to be constructed, to be charged against the lots included in the district according to the "area rule," is affirmed in the recent case decided in this court of City of St. Joseph v. Farrell, 106 Mo. 437. There is nothing in the record of this case to distinguish it from that case.

OPINION

Sherwood, P. J.

Action on two tax bills. The city of St. Joseph is a city of the second class, and is governed by the provisions of section 1429, Revised Statutes, 1889, and its associate sections. Acting under the provisions of the section just mentioned, the city, by ordinance, established sewer district number 21. Then another ordinance was adopted by the city which was entitled "An ordinance to provide for the construction of sewers in a portion of district number 21." The ordinance was as follows:

"Sec. 1. The city engineer is hereby authorized and directed to cause district sewers to be constructed in a portion of district number 21, with all the lateral sewers, inlets, man-holes, junction pipes and other appurtenances necessary to render such sewers complete and efficient; said sewers being by the common council deemed necessary for sanitary and drainage purposes.

"Said sewers shall be located as follows, viz.: A sewer commencing at the main sewer on Ninth street at Frederick avenue, thence north on the center of Ninth street to the center of Faraon street. Said sewer to be made of vitrified clay pipe of the following dimensions, viz., fifteen inches in diameter; also, three man-holes, located as follows: One at point of beginning on Ninth and Frederick avenue, one at Ninth and Jule streets, one at Faraon and Ninth streets; also, six inlets or catch-basins, located as follows: Three at Ninth and Jule streets, one at northeast, one at northwest and one at southwest curbs; three at Ninth and Faraon streets, one at northwest, one at northeast and one at southwest curbs.

"Sec. 2. As soon as said district sewers with their inlets, man-holes and other appurtenances are fully completed, the city engineer shall cause to be computed the whole cost thereof, and shall assess it as a special tax against all the lots of ground in said district respectively, without regard to improvements in proportion as their respective areas bear to the whole area of the whole district, exclusive of public highways; and the engineer shall cause to be made out certified bills of such assessments against each lot of ground in the district, in the name of the owner thereof, and said special tax bills shall be made out by the city engineer, and by him registered in full in his office, and certified and delivered to the party in whose favor they are issued for collection, and his receipt taken in full of all claims against the city on account of said work.

"Sec. 3. The city engineer is hereby ordered to advertise for proposals for five days for doing the work ordered in section 1 of this ordinance.

"Sec. 4. All ordinances or parts of ordinances in conflict herewith are hereby repealed."

The following matters were agreed on at the trial:

"That at said time, under and by virtue of the provisions of an ordinance of said city of Joseph, entitled 'An ordinance for revising and consolidating the general ordinances of the city of St. Joseph, Missouri,' approved May 31, 1880, among other things it was provided that, whenever the construction of any sewer was authorized by ordinance, it should be the duty of the city engineer to advertise for bids and let the contract for the work to be done, first making a plan of the work to be done, accompanied with the specifications for doing the same.

"That after the passage of the ordinance hereinbefore set forth, the engineer of said city did advertise in the St. Joseph Evening News, the official paper of said city, for five days, stating the work required to be done, and made and kept a plan and specification of the work to be done in his office.

"That in pursuance of the last-named ordinance and the advertisement aforesaid, and in pursuance of the provisions of the general ordinances aforesaid, the city engineer of said city of St. Joseph did on the twenty-second day of April, 1887, duly award to plaintiff the contract for building said sewer, he being the lowest and best bidder therefor, which said contract was reported to the city council for its approval, and was approved by it."

At the conclusion of the agreed facts, it was also agreed that "All the requirements of the law and the ordinances in constructing said sewer were duly complied with."

The bid of the relator was for fifteen-inch sewer pipe per lineal foot, including inlets, man-holes, junction pieces and all appurtenances, complete, $ 1.80 per lineal foot, and the contract entered into for the construction of the sewer was for the same gross price per foot, no separate price being anywhere stated for any part of the work. The contract was dated April 22, 1887, was signed by relator...