Thompson v. City of St. Louis

• Decision Date: 08 June 1923
• Docket Number: No. 23137.,23137.
• Citation: 253 S.W. 969
• Parties: THOMPSON v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

253 S.W. 969

THOMPSON v. CITY OF ST. LOUIS et al.

No. 23137.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

Rehearing Denied July 31, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Suit by William B. Thompson against the City of St. Louis and others. Judgment for defendants, and plaintiff appeals. Affirmed.

W. B. & Ford W. Thompson, of St. Louis, for appellant.

Rodgers & Koerner, of St. Louis, for respondents Franklin Bank and another. George F. Raid and Oliver Senti, both of St. Louis, for respondent City of St. Louis.

RAGLAND, J.

This is an action to cancel certain special tax bills issued by the city of St. Louis for street paving. The defendant, Franklin Bank, as assignee and holder, by cross-bill seeks to enforce them as liens on the several parcels of real estate against which they were respectively issued.

The facts which plaintiff asserts entitle him to the relief prayed for rest upon a somewhat historical background. In 1902 the municipal authorities of the city of St. Louis, with a view to connecting by one continuous parkway all the parks of the city so as to bring them together into one system, appointed a commission to devise means, methods, and plans whereby Kingshighway, a street extending through the city in the general direction of north and south, could be permanently improved and made into such a parkway or boulevard. The commission in due time, March, 1903, made report setting forth comprehensively, and in detail, plans "for the permanent improvement of Kingshighway as a continuous and attractive boulevard and driveway connecting Carondelet, Forest, and O'Fallon Parks and the cemeteries." The plans called for the acquisition of considerable additional lands along the route for parkways and parks. The initial Step for carrying them into execution was not taken until 1906. On June 12th in that year a proposition authorizing the city to issue bonds to the extent of $500,000, for the "establishing, opening, and constructing Kingshighway boulevard, to meet that portion of the cost and expense which under the laws of the state of Missouri and the charter of the city of St. Louis said city is required to pay" was submitted to the voters of the city and carried. The bonds so authorized were subsequently issued and sold, and thereupon the city proceeded to establish the proposed boulevard in sections, dealing with each as a separate and independent unit. The particular section with which we are concerned lay between Easton avenue and Penrose street. This portion of Kingshighway was an ordinary street, having a width of 100 feet. On March 27, 1907, an ordinance was duly enacted whereby it was changed into a boulevard and widened by the addition of 25 feet on each side, giving it a total width of 150 feet. The ordinance provided that the boulevard so established should be laid out in such manner as to afford pleasure driveways and spaces for planting trees and shrubbery, and it imposed certain building and other restrictions. Nothing was ever done, however, after the passage of the ordinance in the way of opening or constructing the boulevard established by it, and on March 16, 1909, it was repealed. The repealing ordinance widened Kingshighway, as a street, from 100 feet to 150 feet, and as so widened its boundaries were practically the same as those that had been established for the boulevard by the repealed ordinance.

For the purpose of carrying out the provisions of the ordinance widening Kingshighway from Easton avenue to Penrose street, the city of St. Louis, on May 5, 1909, instituted against Christian Brothers College and others, including the plaintiff in this case, a suit to acquire the necessary lands fronting on the street by condemnation. The report of the commissioners in that proceeding, assessing damages and benefits, was filed May 11, 1911. Exceptions to the report were sustained by the circuit court on the ground that the ordinance repealing the boulevard ordinance and widening the street was invalid. A provision of the city charter then in force Prohibited the repeal of an ordinance establishing a boulevard unless the owners of two-thirds in frontage of all the property fronting on such boulevard consented in writing. In due time the case reached this court on the city's appeal. We held the repealing ordinance, under the circumstances shown, valid, reversed the judgment, and remanded the cause to be further Droceeded with. St. Louis v. Christian Brothers College, 257 Mo. 541, 165 S. W. 1057. The mandate of this court was received and filed in the circuit court July 29, 1916. Other exceptions to the commissioners' report were thereafter filed; these were finally sustained as to the assessment of benefits, and a new appraisement was ordered; in all other respects the exceptions were overruled. Such was the status of the condemnation proceeding when the present suit was begun; no final judgment had been entered in the cause. However, the full amount of the damages assessed in favor of the owners of the lands taken and damaged was paid into court for their benefit, March 7, 1917. This included the, award to plaintiff, but he has never accepted it.

After paying the damages into court, the city took possession of the lands and proceeded to improve the street. On April 17, 1917, an ordinance was passed establishing a benefit or taxing district "for the improvement of Kingshighway from Easton avenue to St. Louis avenue," a part of the original section lying between Easton avenue and Penrose street. The district so established included the lands of plaintiff involved in this suit. On April 16, 1918, a further ordinance was enacted which provided for the improvement of Kingshighway between Easton avenue and St. Louis avenue by grading and paving the roadway from curb line to curb line, except so much thereof as had been reserved for parkway space, and which authorized and directed the board of public service to let a contract for such improvement, to be paid for by special tax bills issued in...