William R. Bush Construction Company v. Withnell

• Decision Date: 03 November 1914
• Docket Number: 13744
• Parties: WILLIAM R. BUSH CONSTRUCTION COMPANY, Respondent and Appellant, v. WILLIAM W. WITHNELL et al., Appellants and Respondents
• Court: Missouri Court of Appeals

170 S.W. 361

185 Mo.App. 408

WILLIAM R. BUSH CONSTRUCTION COMPANY, Respondent and Appellant, v. WILLIAM W. WITHNELL et al., Appellants and Respondents

No. 13744

Court of Appeals of Missouri, St. Louis

November 3, 1914

Argued and Submitted October 8, 1914.

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

TRANSFERRED TO THE SUPREME COURT.

Cause transferred to Supreme Court.

Edw. C Kehr for Wm. R. Bush Construction Company, respondent and appellant.

E. T. & C. B. Allen for Wm. W. Withnell et al., appellants and respondents.

REYNOLDS P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

Action to enforce the lien of a special tax bill issued against certain property in city block 2655, of the city of St Louis, in part payment for work done in street construction within the district in which the property sought to be affected is located. The bill calls for $ 3783.09. Averring the issue of the taxbill and notice and demand of payment thereof, that the bill was payable in installments, that default had been made in payment of the first and second installments, plaintiff avers that, exercising the option given it by the Charter of the city, it declared the remaining installments due. Averring that it is the owner of the tax bill, plaintiff demands judgment for the amount of the tax bill with interest.

The amended answer upon which the case was tried, after a general denial, avers--

First, that the district in respect to which three-fourths of the cost of the improvement had been assessed against the area thereof and in which the property mentioned was included, had not been established according to the provisions of the Charter of the city of St. Louis, in that the eastern boundary line of the district was drawn more than 300 feet east of Compton avenue and was drawn so as to include land situated in city block 2655, that being separated from the street to be improved by city block 2454 and not adjoining or fronting on said street to be improved, whereas if the line had been drawn in accordance with the provisions of the Charter midway between Compton avenue and Michigan avenue, or if it had been deflected so as to include all the property of the Franciscan Brothers adjoining or fronting on Compton avenue, then no part of the property of defendants would have been located in the district.

Second, that the property sought to be charged is a tract of land lying between Chariton street on the south and Meramec street on the north, bounded by the property of the Ladies of the Sacred Heart on the east and by Michigan avenue, as proposed, on the west; that Minnesota avenue is an opened street up to the southern boundary of defendants' property, and is marked on the city maps as extending through and cutting off the western thirty feet of the property, but as yet has not been opened through defendants' property although it extends both north and south from defendants' property; that instead of defining the eastern boundary of the district as heretofore indicated, or at an equal distance on the east from Compton avenue as the line was drawn on the west of Compton avenue, or drawing the line 300 feet east of Compton avenue, the eastern boundary line was drawn midway between Compton and Nebraska avenues, the result being that the property that is now assessed to pay for the improvement of Compton avenue will also be assessed to pay for the improvement of Michigan avenue, when opened, as well as to pay for the improvement of Minnesota and Pennsylvania avenues when extended; that none of the property between Neosho and Chariton streets, lying immediately south of defendants' property and east of Michigan avenue is assessed for this improvement at all while all of defendants' property between Chariton and Meramec streets, east of Michigan avenue, is assessed, the total cost of the improvement being $ 24,942, of which amount $ 3783.09 is assessed against defendant's property.

Third, that this charge "is in substantial excess of any possible benefit to defendants' property, and presents such peculiar and extraordinary hardships as amounts to actual confiscation of private property for public use, and constitutes taking property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States."

Fourth, that a large amount of real estate belonging to other persons located with reference to Compton avenue similarly, and of a like proximity and value to defendants' property, is not assessed or included in any tax bill for any part of the cost of the improvement; that if the district is correctly defined, and in accordance with the provisions of article VI, section 14, of the Charter of the city of St. Louis, then that section is void and unconstitutional for the reason that it violates section 1, article XIV, of the amendments to the Constitution of the United States, in depriving defendants of their property without due process of law, by denying to defendants the equal protection of the law, by subjecting all defendants' property to the lien of this assessment, and in not subjecting to said lien other land adjoining Compton avenue similar in location and value to defendants'; that said section of the article is also unconstitutional for the reason that it violates the above section to the amendments to the Constitution of the United States, by denying to defendants the equal protection of the laws in this: That section 14, article VI, of the Charter operates to divide all property contiguous to the street to be improved into lots which have not been subdivided by the owners and to impose an arbitrary, unjust and unlawful assessment on property which has not been divided into lots.

Fifth, that the provisions of the Charter of the city of St. Louis afford no opportunity to the landowner to be heard upon the establishment of the district or upon whom the tax shall be levied, the amount of the benefits, the making of the assessment or the apportionment thereof, and hence these Charter provisions are in violation of the Fourteenth amendment to the Constitution of the United States which forbids the taking of property without due process of law.

Sixth. From the beginning to the end of the proceedings under which this tax was levied, the defendants were not afforded an opportunity to be heard on the establishment of the district, the benefits derived, upon whom the tax should be levied, the making of the assessment, and its apportionment, and that the enforcement of the case, will result in the taking of defendants' property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.

To this a general denial by way of reply was filed.

The cause was tried by the court without the intervention of a jury and resulted in a judgment in favor of plaintiff sustaining the special tax bill in the amount of $ 4768.38, and holding it to be a lien against the property, but not allowing interest as claimed by plaintiff.

The court further found in favor of plaintiff and against defendants on the issues presented in the answer denying defendants the...