Wetterau v. Farmers' & Merchants' Trust Co.

• Decision Date: 30 December 1920
• Docket Number: No. 21455.,21455.
• Citation: 285 Mo. 555,226 S.W. 941
• Court: Missouri Supreme Court
• Parties: WETTERAU et al. v. FARMERS" & MERCHANTS' TRUST CO.

226 S.W. 941

285 Mo. 555

WETTERAU et al. v. FARMERS" & MERCHANTS' TRUST CO.

No. 21455.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by G. H. Wetterau and others against the Farmers' & Merchants' Trust Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Marshall & Henderson and Frank 3. Wiget, all of St. Louis, for appellant.

Holland, Rutledge & Lashly and Oliver J. Miller, all of St. Louis, for respondents.

GRAVES, J.

The petition is in two counts. The first count appears to be under section 2535, R. S. 1909, in that it prays for a determination of interests in the real estate involved. This count particularizes as to the adverse claim of the defendant, which is not unusual in actions under the statute, and which is permissible under the statute. The adverse claim of the defendant is that it holds certain unpaid or partially unpaid tax bills for improvements of a street touching the property of plaintiffs. Plaintiffs constitute the board of trustees for the German Evangelical Church of St. Paul at St. Louis, Mo.

There was a proceeding to improve Gravois avenue from Bates street to Longborough avenue. It was improved, and in the course of the proceeding a benefit district was fixed in accordance with the city charter of the city of St. Louis. Upon the completion of the work special tax bill No. 3655 was issued against the property held in trust by the plaintiffs. In accordance with the charter provisions, one-fourth of the amount was charged upon a front-foot basis, and three-fourths upon an area basis, and all within the strict letter of the St. Louis charter provisions. The frontage tax so assessed was $492.56, and the area tax was $4,107.19.

The tax bill was payable in six installments two of which were paid prior to this action. The claim by plaintiffs is that as to them the area tax is invalid, in that it violates the Fourteenth Amendment of the federal Constitution, and article 2, § 20, of the state Constitution. It is, in simple terms, an allegation that there was not equal protection to plaintiffs, under the laws, both state and federal. This question, and the question here involved, is not unfamiliar to this court. The charge is, in the first count, that such tax bill is an apparent lien upon the property so held by defendant, and we are asked to determine the interests of the respective parties. The second count is for the recovery back of the area tax already paid in the two installments above mentioned. The front-foot portion of the tax is not questioned, but tender of the remainder thereof is made and an allegation that the same was refused. The answer is voluminous, but the questions therein raised are few and simple. These can best be noted in the course of the opinion. Reply placed in issue the new matter in the answer. Judgment nisi was for plaintiffs on the first count of the petition, and defendant, the holder of the tax bill, has appealed. This shortly outlines the case.

I. The whole trouble in this case grows out of the area tax assessed against the property held by the plaintiffs. As indicated briefly in the statement, the city of St. Louis passed an, ordinance for the improvement of Gravois avenue between bates street and Longborough avenue. This action was under the old charter of St. Louis, and the ordinance fixing the benefit district was within the terms of the charter provision, which provision has been before this court so often that it is a familiar face. Under it are drawn the lines of a benefit district. The city authorities, when they came to a block of land as is involved here, were authorized to include in the benefit district such portion of such tract as would fall within two lines named in the charter provisions. That is to say, the charter provisions contemplated that one line would be the street to be improved, and the other line (fixed for determining area) would be a line halfway between the street improved and the next parallel or converging street. This on the theory, as was true here, that these were parallel or converging streets on both sides of the street to be improved. If there were not parallel or converging streets upon both sides, then another rule prevailed not necessary to mention here. The property of plaintiffs had a frontage of 254 feet on Gravois avenue, and was (for area tax) assessed to a depth of 1,248 feet, the halfway line between Gravois avenue and Morgan Ford road, the next parallel street, some half mile from Gravois. By the old charter it was contemplated that one-fourth of the improvement cost should be on the front-foot basis, and three-fourths on the area basis of the district of benefits to be formed. The plaintiffs contend that this fixed a ratio of 1 to 3, but in this they may be in error. For the vital questions in this case this matter is only incidental. In the instant case the frontage tax was $492.56, and the area tax $4,107.19, making the ratio 1 to 9 rather than 1 to 3. The district area, however, might include property not fronting, and therefor those ratios are only incidentally of value here. The real question here is the inequalities in areas for taxation occasioned by the ordinance fixing the benefit district, following in literal terms the provisions of the charter. Article 6, § 14, of the Revised Code of St. Louis (1912) by Rombauer, pp. 365, 366.

We have passed the point wherein we can say that gross inequalities in area taxes or assessments for benefit can be overlooked upon the theory that absolute equality cannot be secured in cases of this kind. Gast Realty & Investment Co. et al. v. Schneider Granite Co., 240 U. S. 55, 38 Sup. Ct. 254; 60 L. Ed. 523. We cannot expect absolute equality, but we must...