Wiget v. City of St. Louis

• Decision Date: 03 September 1935
• Parties: Frank J. Wiget and Ottillia Wiget, His Wife, et al., Appellants, v. The City of St. Louis et al
• Court: Missouri Supreme Court

85 S.W.2d 1038

337 Mo. 799

Frank J. Wiget and Ottillia Wiget, His Wife, et al., Appellants, v. The City of St. Louis et al

Supreme Court of Missouri

September 3, 1935

Rehearing Denied September 3, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge; Opinion filed at May Term, 1935, July 11 1935; motion for rehearing filed; motion overruled at September Term, September 3, 1935.

Affirmed.

B. E Hamilton for appellants.

(1) Plaintiffs' amended petition states facts sufficient to constitute a cause of action against defendants. Verdin v. St. Louis, 131 Mo. 26; Steinbreinner v. St. Joseph, 226 S.W. 890; Fahey v. Hackman, 237 S.W. 752; Schwab v. St. Louis, 274 S.W. 1058. (2) Plaintiffs have no adequate remedy at law. Bates v. Comstock Realty Co., 267 S.W. 641. (3) That the facts set forth in plaintiffs' petition show an abuse of discretion on the part of the Board of Public Service. Wetterau v. Farmers & Merchants Trust Co., 226 S.W. 942; Gast Realty & Inv. Co. v. Schneider Granite Co., 240 S.W. 55. (4) That the said tax was not ratably distributed by area. Parker-Washington v. Dodd, 305 Mo. 171; Hesse-Rix Co. v. Krug, 319 Mo. 880.

Charles M. Hay and Oliver Senti for respondents.

(1) The action of the Board of Public Service in laying out a taxing district after a hearing on notice is due process of law and is final in the absence of fraud or bad faith. Embree v. K. C. L. & B. Road District, 240 U.S. 242, 60 L.Ed. 624. (2) The publication of the notice in the manner alleged in the petition conformed to the requirement of the charter of the city of St. Louis. State ex rel. Hussmann Refrigerator & Supply Co. v. St. Louis, 319 Mo. 497, 5 S.W.2d 1080. (a) Where notice of a hearing is published in the manner required by law, the officers of the city are not required to post notices thereof even if it is customary to do so. State ex rel. Carthage v. Gordon, 217 Mo. 103. (b) The allegation that the notice was published in a paper owned and operated by the city assumes and infers that it was the paper doing the city publishing. St. Louis v. Lang, 131 Mo. 421. (c) It appears from an opinion of this court that the City Journal is a paper owned by the city of St. Louis in which its public notices have been published for the last fifteen years. State ex rel. Hussmann v. St. Louis, supra. And this court can take judicial notice of matters of a public nature which appear in its opinions. State v. Tallo, 308 Mo. 594. (d) The fact that the plaintiffs had no actual knowledge of the hearing before the Board of Public Service either from the publication or the posting of notice thereof does not prevent them from being bound by the publication of said notice. State ex rel. v. Clarkson, 88 Mo.App. 559. (3) The plaintiffs, not having made known to the Board of Public Service their objections to the proposed taxing district, they failed to avail themselves of an adequate remedy provided by law and are not entitled to equitable relief. Brinkerhoff-Faris Trust & Savs. Co. v. Hill, 323 Mo. 180, 19 S.W.2d 746. (a) While equity has jurisdiction of a suit such as the present one, none of the authorities cited by the plaintiffs support their right to equitable relief on the allegations of their petition. (b) The cases relied on by the plaintiffs wherein it was held that the taxing district was invalid because it was laid out inequitably, deal with districts, the boundaries of which were arbitrarily fixed by law and they have no application to a taxing district established by the Board of Public Service after a hearing upon due notice.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This is a suit in equity to declare an ordinance (No. 38544, approved June 30, 1930) of the city of St. Louis for the improvement of Bingham Avenue void as being in contravention of Federal and State constitutional provisions, and to restrain the Board of Public Service of said city from advertising for bids and letting any contract for said work under said ordinance. Plaintiffs appeal from a judgment sustaining defendants' demurrer.

Plaintiffs' petition describes the parties plaintiff and defendant, the real estate owned by plaintiffs subject to the provisions of the ordinance and, alleging the due enactment of said ordinance, sets it out. The ordinance establishes the boundaries of a benefit or taxing district for the improvement of said Bingham Avenue, authorizes and directs the Board of Public Service of said city to let a contract for said improvement, and, among other things, provides that the cost of said improvement shall be levied and assessed against parcels of ground within said benefit or taxing district as provided in the Charter of said city. The petition continues:

"Plaintiffs further state the Charter of the City of St. Louis provides that before the Board of Public Service shall recommend any ordinance for any public work, including the construction of any public highway or street, the Board shall designate a day upon which it shall consider the proposed district and the boundaries thereof, and shall give two weeks' public notice in the paper or papers, doing the City's publishing, of the time and place of such hearing.

"Plaintiffs further state that said notice was published in a paper owned and operated by the City of St. Louis, and which is not a paper of general circulation, but one whose subscribers are limited to a very few people doing business with the officials of the city government, and is not a paper or papers contemplated by the City Charter.

"Plaintiffs further state that for many years past there has grown up a custom in the City of St. Louis, which custom was originated by the City of St. Louis, and which custom is known far and wide and among those who own property in the City of St. Louis, Missouri, that before the Board of Public Service shall recommend any ordinance for any public improvement, including a street or public highway, notices shall be posted along said highway notifying the owners of property of the time and place of a hearing before said Board of Public Service; also setting forth the proposed district and an estimated cost of same.

"Plaintiffs further state that before the Board of Public Service recommended the ordinance above described there was no notice posted along the street in said area to be taxed setting forth the day on which the Board of Public Service would consider the proposed district, when, the time and place of such hearing, and that plaintiffs herein had no knowledge either through the posting of said notice or the publication of said notice as to when and where there would be a hearing on account of said proposed improvement."

The petition further alleges, in substance, that plaintiffs' property was assessed to a depth of 263.58 feet on the western part of said improvement; that property on the east in many places was assessed to a depth of only 52 1/2 feet; that the boundaries of said benefit or taxing district were fixed arbitrarily and without any consideration of the benefits accruing to the property therein from said improvement; that said property of plaintiffs will be while other lands similarily located will not be subject to a lien of like assessment for the area tax; that said property of plaintiffs will not be taxed on the same basis and in the same proportion as other property in said district; that said differences will not be based upon any consideration or differences in benefits conferred but will be caused by the arbitrary and mechanical manner in which said ordinance establishes said boundaries without reference to the benefits to be derived therefrom; and that the provisions of said ordinance place on plaintiffs' property an unequal and disproportionate part of the cost of said improvement, and violate the due process and equal protection clauses of the Constitution of the United States (Amendment 14, U.S. Const.) and the due process (Art. 2, Sec. 30) and other clauses of the Constitution of the State of Missouri.

Plaintiffs' petition attacks only the action of the Board of Public Service and the Board of Aldermen in the establishment of the area assessment for said improvement under the Charter of the City of St. Louis. It makes no complaint of any charter provision. The determination of the sufficiency of the petition turns upon the applicable provisions of said charter, of which provisions judicial notice is taken. [St. Louis v. Lang, 131 Mo. 412, 420, 33 S.W. 54, 55.] The provisions of said charter material to the issues involved follow.

Section 1 of Article 22 of the Charter of the City of St. Louis provides that "no ordinance for public work or improvements of any kind . . . shall be adopted, unless prepared and recommended by the Board of Public Service. . . ."

Section 10 of said article provides for the payment of improvements of the nature here involved by special assessment, as follows: "Onefourth of the entire cost shall be levied and assessed against the lots or parcels of ground abutting on the work or improvement ratably by lineal feet so abutting, and the remainder of the cost shall be levied and assessed ratably by area against all the lots or parcels of ground exclusive of public highways, within the benefit or taxing district. . . ."

Section 3 of said article, providing the method of determining the benefit or taxing district (the property subject to an area assessment under said Sec. 10) for such an improvement insofar as material, reads: "Before the Board of Public Service shall recommend any ordinance for any public work or improvement, including the construction or other improvement of any public highway, street, . . . or any part thereof, to be paid for, in whole or in part, by special...