Zoeller v. Kellogg

• Decision Date: 12 June 1877
• Parties: JOSEPH ZOELLER, Defendant in Error, v. SANDFORD B. KELLOGG, Plaintiff in Error.
• Court: Missouri Court of Appeals

4 Mo.App. 163

JOSEPH ZOELLER, Defendant in Error,

v.SANDFORD B. KELLOGG, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1877.

1. Where the value of the lots against which assessments for public improvements are made is less than the amount assessed upon them, the enhanced value of the lots is nothing to the owner, and the benefits to him derived from such improvements are no greater than to any other citizen whose property is not assessed; such an assessment is unconstitutional and void.

2. Where a municipal government makes an assessment for local improvements exceeding in amount the value of the property assessed, such an assessment is in violation of the constitutional inhibition against the taking of private property for public use without just compensation, and is void; and the fact that such power is referred to the taxing power, and not to the power of eminent domain, does not make its exercise any the less unconstitutional.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

S. A. HOLMES, with S. KNOX, for plaintiff in error, cited: Sheehan v. Good Samaritan Hospital, 50 Mo. 155; City of St. Louis v. Allen, 53 Mo. 44; Creighton v. Manson, 27 Cal. 613; McCormack v. Patchin, 53 Mo. 33; Carroll v. Eaton, 2 Mo. App. 479; Weber v. Sherzens, 59 Mo. 389.

MCGAFFEY & STEBER, for defendant in error, cited: 2 Dill. on Mun. Corp., secs. 589, 590, 617; Seibert v. Allen, 53 Mo. 44; Egyptian Levee Co. v. Hardin, 27 Mo. 495; City of St. Louis v. Clemens, 36 Mo. 467; Palmyra v. Morton, 25 Mo. 593.LEWIS, P. J., delivered the opinion of the court.

In July, 1868, the defendant was owner of a lot of ground fronting seventy-nine feet on the north side of Chouteau Avenue and extending northwardly, with the same width, to Papin Street; also, of a lot opposite the same, fronting seventy-nine feet on the north side of Papin Street, and extending northwardly to an alley. Subsequently, Mercer Street was opened sixty feet in width, longitudinally, or from south to north, through defendant's two lots, leaving on the east side of each a strip eleven feet seven inches wide, and on the west side of each a strip seven feet five inches wide. In August, 1873, the three special tax bills here sued on were issued and certified, charging these narrow strips of ground on either side of Mercer Street with expenses of curbing, guttering, macadamizing, and cross-walks, to the aggregate sum of $1,488.16. Plaintiff obtained judgment for $1,642.55, as a charge against the lots, and defendant brings the cause here by writ of error. There was testimony tending to prove that the lots, after the works charged for were completed, and with all enhancements of value from that cause, were worth not more than $1,025. The court, at the instance of plaintiff, declared the law as follows:

“If the court, sitting as a jury, believe from the evidence that the work and materials charged for in the bills sued on were furnished, and that the work described in said bills was executed according to the contract, then the plaintiff is entitled to recover, without regard to the value of the land upon which the lien is sought in this suit.”

The principles which authorize and control assessments upon the adjoining property for public improvements have long been a subject of discussion in the courts. Some contrariety of opinion may yet be found in their various modes of application, but the fundamental doctrines are generally agreed upon.

A power which compels a man to pay for work and materials which he has neither asked for nor consented to receive, or else to surrender part of his property to another, seems so repugnant to all ideas of that personal protection which is the chief end of civil government that we must be able to refer it to some distinct basis of constitutional authority. It cannot stand upon the power of taxation; for it lacks, in all cases, the essential characteristics of equality and uniformity. To tax one man alone for a specific item in the public outlay would be, in principle, no better than to tax him for all the expenses of the municipal government. The only constitutional basis upon which the assumed power can rest at all is the right of taking private property for the public use, upon just compensation being made therefor.

Our Supreme Court has repeatedly said that the local assessment for improvements “is not considered as a burden, but as an equivalent or compensation for the enhanced value which the property derives from the improvement.” Lockwood v. City of St. Louis, 24 Mo. 20; Sheehan v. The Good Samaritan Hospital, 50 Mo. 155; City of St. Louis v. Allen, 53 Mo. 54. The converse of the proposition must be equally true; so that the enhanced value which the property derives from the improvement is, practically, the compensation which the owner gets for the assessment against it. This assessment, to be enforced as a lien which may subject the property to a sale and transfer from the owner, is, in effect, a taking of the property. “The requirement of a just compensation to be made for private property taken for public use” * * * “applies as well where the value or a part of the value of the property is taken by being subjected to the payment of a sum of money, as where the property itself, or some interest therein, is directly taken for public use.” Creighton v. Manson, 27 Cal. 627. This brings us to the question whether, if the instruction given in the present case was correct, the defendant was thus left...