The State ex rel. Meek v. City of Chillicothe
| Decision Date | 27 November 1911 |
| Citation | 141 S.W. 602,237 Mo. 486 |
| Parties | THE STATE ex rel. JIM E. MEEK v. CITY OF CHILLICOTHE |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
Paul D Kitt for relator.
The issue here is upon what property should the cost of the paving of these areas formed by these street and alley intersections be assessed; whether entirely on the property fronting on Bryan street, or whether one-half of the cost of such intersections should be assessed on the property fronting on Bryan street and the other half thereof on the property fronting on the intersecting streets. Under the provisions of section 6, of the ordinance, the improvement of the street between the intersections is to be levied on the property on Bryan street fronting the improvements, as to this part of the plan of assessment there is no question or issue. By section 7 the cost of the improvement of the areas formed by the crossing and intersecting of all streets with Bryan street, is assessed one-half thereof on the property fronting on Bryan street and located within the blocks contiguous to the intersection, and one-half thereof on the property fronting on the intersecting street and located within the blocks contiguous to the intersection; as to intersection of alleys with Bryan street, the cost of such improvement is to be paid by the property fronting or abutting on the alleys. The taxbills issued to relator for the cost of such street and alley intersections and which he is seeking to have cancelled, and to have others issued to him in lieu thereof, are those issued against the property fronting and abutting the intersecting streets, namely Cherry, Washington and Locust streets, and those issued against the property fronting and abutting the alleys. We understand the charter provisions governing the city of Chillicothe (Secs. 6266 to 6271, R. S. 1899) require the cost of the improvement of street and alley intersections, to be assessed entirely on the property fronting or abutting the improvement, in this instance entirely on the property fronting or abutting on Bryan street. This is our understanding of the decision in City of Chillicothe ex rel. v. Henry, 136 Mo.App. 468, 118 S.W. 486. Under the authority of the case of State ex rel. v. St. Louis, 183 Mo. 230, 81 S.W. 1104, relator is entitled to have taxbills issued to him upon an assessment on property within a district conforming to the provisions of the charter notwithstanding he may have received taxbills issued as provided by an ordinance which conflicts with the charter. The provisions of the charter control, anything in an ordinance to the contrary notwithstanding. (2) Respondent contends that section 2, article 4, of the Special Charter of Chillicothe, gives to and adds greater power to said city in fixing the assessment district for payment of the costs of these improvements, than is given by Secs. 6266 to 6271, R. S. 1899, and that taking this charter provision in connection with the statutory provision, the power of the city to fix the assessment district in question is ample. We cannot agree with respondent in this position: First, Because the provisions of said special charter, in so far as they relate to paving of streets, have been repealed or superseded by the provisions of Secs. 6266 to 6271, R. S. 1899, and said statutes constitute the sole power of said city to pave and improve the streets thereof. Second, Because the power to pave the streets given by said section 2, article 4, of the special charter, does not grant the power to assess the cost on property owners, which power to assess must be specifically given; a grant of power to construct a public improvement, without power to levy assessment, will be presumed shall be paid for by general taxation. 2 Page and Jones on Taxation by Assessment, sec. 775. Third. Because the return admits all facts pleaded in relator's petition which pleaded that the work was done under the said statutes and its provisions.
Frank W. Ashby for respondent.
(1) Under the statute (Sec. 6266, R. S. 1899), the city is given power by ordinance "to levy and collect a special tax on the owner or occupier of the property, lot or lots, on any street . . . for the purpose of paving, . . . and curbing all or a part of any street." As to what street shall be improved under this statute (on any street) is left entirely to the judgment of the city council; so, too, it is left to the judgment of the city council as to what part of the street (all or a part) shall be improved. And the city having this express power to improve any street or all or a part of said streets, then all matters of detail are properly left to the judgment of the municipal authorities. Springfield to use v. Weaver, 137 Mo. 669. And the city authorities are the proper judges of how much of the street it is necessary to improve. Moran v. Lindell, 52 Mo. 229. (2) It is not necessary to constitute a valid assessment for a street improvement, that the property assessed should be literally in front of or adjacent to the improvement. Powell v. City of St. Joseph, 31 Mo. 347; Sedalia v. Coleman, 82 Mo.App. 560. (3) An intersection of two streets is both streets within such intersection, and property on both streets should pay for the improvement of such intersection and not property on one street alone. Creighton v. Scott, 14 Oh. St. 438. (4) The entire cost of improvements on parts of two streets cannot be charged against property on one of said streets alone. Grading Co. v. Holden, 32 Mo.App. 490. (5) Under the power granted by the Legislature to the city of Chillicothe, the city council of said city had the authority and discretion, as wide as that possessed by the Legislature, in paving and improving the streets of said city, and likewise the same discretion as the Legislature to fix the district and property liable to pay for the cost thereof, and this discretion is not subject to judicial revision or reversal. Morse v. Westport, 136 Mo. 276, 37 S.W. 932; Barber Asphalt Co. v. French, 158 Mo. 534, 58 S.W. 934; Pryor v. Construction Co., 170 Mo. 439, 71 S.W. 205; Meier v. St. Louis, 180 Mo. 391, 409, 79 S.W. 955. The question whether property assessed to pay for improvements is benefited by the improvement, is a legislative and not a judicial question; when the city council of Chillicothe adjudged the property in question benefited and fixed the ratio of such benefit, such judgment of said council was conclusive. Pryor v. Construction Co., 170 Mo. 439, 451, 71 S.W. 205.
OPINION
In Banc
Mandamus.
Relator filed a petition in this court praying the issuance of an alternative writ of mandamus against the city of Chillicothe, respondent herein, commanding it to receive and cancel certain special taxbills theretofore issued to relator under a street paving contract, and to issue in lieu thereof other taxbills as prayed, or to show cause why it had not done so, etc. The alternative writ was waived and respondent made return to the petition. Relator filed a reply raising the issue of law that upon the admitted facts he was entitled to the relief prayed for, and asking that a peremptory writ be issued in accordance with the prayer of the petition.
There is no dispute as to the facts. Respondent is a city of less than ten thousand inhabitants, incorporated under a special charter. In the year 1906 an ordinance was regularly passed by respondent providing for the paving of Bryan street, beginning at the east side of Walnut street and extending east a distance of three blocks, intersecting and crossing Cherry and Washington streets, and ending in the center of Locust street on the east. Alleys running north and south through the centers of the blocks, along that part of Bryan street described, were also intersected. The contract was let to relator and the improvement was made in accordance with the terms thereof. Respondent apportioned the cost of the work against the property liable therefor in accordance with the provisions of the ordinance, and special taxbills were issued and delivered to relator in payment for the work.
Bryan street is sixty-six feet wide, and it was provided by the ordinance that twenty-four feet in width in the center of the street should be paved, leaving twenty-one feet on each side to be occupied respectively by a sidewalk and parkway. It was...
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