268 Mo. 349 | Mo. | 1916
— This is a suit for the cancellation of certain special tax bills against the plaintiff’s land in the city of St. Louis, the apparent lien of which is alleged to be a cloud upon the title. The tax bills were issued .against seven parcels of land described in the petition, to the aggregate amount of $469.40, and are founded upon a special assessment of benefits to said land in a proceeding for the widening of Bircher Street from Euclid Avenue to Florissant Avenue in said city from 60 feet, its original width, to 200 feet, under ordinances which changed its name to King’s Etighway Northeast. None of the land fronted or bordered upon said street, which was outside the business district, and upon which there was little commercial traffic.
A general demurrer was sustained to the petition, and the plaintiff declined to plead further. Final judgment for defendant was entered, from which this appeal is taken.
The petition states, in addition to these general facts, that the defendant, by authority of a vote of the people of said city, duly authorized and issued its negotiable bonds in the sum of $500,000, to be exclusivély devoted to the establishing, opening and construction of King’s Highway Boulevard, to meet that portion of. the cost and expense which by law the defendant was required to pay, and that the proceeds
Section one provided: “Bireher Street from Euclid Avenue to Florissant Avenue, in the city pf St. Louis, Missouri, is hereby changed into a boulevard to be known as ‘King’s Highway Northeast.’ ” Section two provided that said boulevard, “King’s Highway Northeast,” be widened to include certain parcels of land described, making its width 200 feet. It further provided that the present Bireher Street from Euclid Avenue to Marcus Avenue should be “a service roadway, for general lawful purposes of public travel,” and that from Marcus Avenue to Florissant Avenue there should be “service roadways 30 feet wide for general lawful purposes of public travel,” and “a pleasure driveway, separated from said service roadways by space for planting trees and shrubbery, and constructing sidewalks in a manner hereafter to be provided for by the Board of Public Improvements,” and that on the part of the boulevard restricted to pleasure driving, it should be unlawful to do or cause to be done any other than pleasure driving, or to use the same for certain general traffic set out at length in the ordinance. There were also other traffic restrictions unnecessary to mention.
It also stated that this ordinance was a part of a general scheme for the establishment of a boulevard extending northwardly and southwardly almost the entire length of the city. That although the proceeds of the sale of the $500,000 of bonds were lawfully ap
That the proceeds of the bonds having been exhausted without the expenditure of any .part thereof to pay the benefit assessment for which the city might be liable in the opening of that part of the King’s Highway Boulevard which included Bircher Street, the defendant city, for the purpose of raising the funds therefor by assessment against a benefit district to be formed for that purpose under the guise, of the subterfuge that this part of the King’s Highway Boulevard was a common street and not a boulevard within the meaning of its charter, passed on March 16, 1909, Ordinance No. 24,224, entitled, “An ordinance to repeal Ordinance Number Twenty-two Thousand Nine Hundred and Forty-eight, entitled, ‘An ordinance to change present Bircher Street from Euclid Avenue to Florissant Avenue into a boulevard, to be known as “Kingshighway Northeast,” and to widen said boulevard and to regulate the use of said boulevard, and to provide penalties for violating the provisions of this ordinance,’ approved March twenty-seven, nineteen hundred and seven, and to enact in lieu thereof, an ordinance to change the name of Bircher Street from Euclid Avenue to Florissant Avenue to ‘Kingshighway Northeast,’ and to establish, open and widen said Kingshighway Northeast from Euclid Avenue to Florissant Avenue.” The first section repealed the former ordinance and the second is as follows: “Bircher Street from Euclid
Section three establishes the boundary of King’s Highway Northeast practically the same as the boulevard of the same name established by ordinance No. 22,948, and thereupon a proceeding was begun to condemn the land to be taken and establish the benefit-district upon which to assess the cost substantially as provided by the charter and ordinances of the city. The lands of plaintiff were included in this assessment. That the petition was sufficient in form and detail to present the questions which we shall notice in this opinion is not questioned by the parties in brief or argument.
The word “boulevard,” in its descriptive sense, which is the sense in which it is used in the statute and with which we have to deal, is well understood, and implies a way designed for pleasure as well as for commercial intercommunication, and having the scenic features, which please rather than profit. Perhaps the definition we find in the New International Dictionary, “A broad avenue in or around a city, especially one decoratively laid out with trees, belts of turf, etc.,” is as expressive of its nature as anything that could be said. It is these aesthetic features which constitute the foundation of the special system of taxation applied by charter of the city of St. Louis. Their park-way features are especially available to those whose homes border them, while the scenic drive which they afford is available to the entire city as well as to those who reside a block away. Limitations imposed upon their commercial use make them less available in that respect to those who reside or do business in the neighborhood outside their immediate vicinity than ordinary well improved streets. For these and perhaps other reasons as good the Legislature has seen fit to impose the cost of establishing and opening them upon the adjoining owners and the city at large, and to exempt property which, like that of the plaintiff, receives little benefit from their establishment and maintenance. The Legislature has made the distinction, in the exercise of its constitutional powers and we can only inquire of its motives to aid us, when in doubt, to interpret its language. If, under the ordinance No. 24,224, King’s Highway Northeast is a “boulevard” within the legislative meaning of the word the city had no power to tax the land of plaintiff to pay the cost of open
The petition avers that King’s Highway Northeast, while called in the ordinance a street, is in fact a boulevard, and that calling it a street is a mere subterfuge adopted by the Municipal Assembly for the purpose of evading the charter and gives several particulars which, in the opinion of the pleader, supports the general charge. It states, ■ in substance, that Bircher Street lay entirely outside the business portion of the city, and that it needed no widening to accommodate its traffic. To show that this was the opinion of the Municipal Assembly it cites the ordinance changing it to a boulevard, which devoted all the space outside its present width for purposes of ornamentation and pleasure, and made it a part of a general scheme for a park-way through the greater portion of an extensive and populous city. It then charges an interval of two years, during which the fund provided to meet the city’s portion of the cost of acquiring the additional lands expressly devoted to a pleasure drive-way and scenic features had become exhausted and the adoption of the present plan for acquiring the same land for the same ultimate purpose, by a fund to be raised by taxation upon the plaintiff’s land and that of others similarly situated. After this should be done the power of the Municipal Assembly to return it to the status of a boulevard and to provide for its improvement and use as such
II. Looking at the section of the charter to which we have already referred, we observe that the proceeding in which this tax was assessed is dual in its character. Its primary and principal object is the condemnation of lands necessary to the opening of the street. For this purpose the court must proceed to obtain jurisdiction of the owners according to its uniform practice as prescribed by statute. Incidentally the benefits to lands not taken” are assessed in the same proceeding.- No process is issued out of the court for this purpose, but five days’ notice is given by the city counselor by publication that benefits to lands situated within certain limits will be assessed by the, commissioners on a day named. This is required, by ordinance, and not by any statute of the State, nor is it under the control of the court -in which the proceeding is pending. That this should constitute the foundation for a valid and final judgment at law fixing a lien upon the land of the o'wner is inconceivable, while it is easy to understand that it might well constitute the foundation for the valid assessment of a tax subject to the universal rule that its validity must depend upon the legislative power upon which it rests, and if there be a fair and reasonable doubt as to the existence of such power it must be
III. It is suggested that the view we have taken is at variance with the decision of this court in St. Louis v. Christian Brothers College, 257 Mo. 541. The only question before the court and decided in that case was whether or not an ordinance establishing a boulevard could, before any proceeding had been taken , under it, be repealed without the written consent of persons owning two-thirds of the abutting land, and the point was decided in' the affirmative. "We are still satisfied with that result. "We are now deciding that in opening a boulevard, by whatever name it may be designated, the assessment of benefits to pay for land taken, and the damages to land not taken, must conform to the requirements of the charter with respect to the lands subject to assessment for that purpose, and that the averments of the petition are sufficient, as against a general demurrer, to present the question in this case.
The judgment of the circuit court is reversed and the cause remanded for further proceedings.
— The foregoing opinion of Brown, C., is adopted as the opinion of the court