Meier v. City of St. Louis

180 Mo. 391 | Mo. | 1904

GANTT, J. — This

is a suit in equity to cancel two special taxbills made out, certified and registered by the president of the Board of Public Improvements and the Comptroller of the city St. Louis, and at the time of the bringing of this suit ready for delivery to the contractor in payment for tbe improvements of Texas avenue in the city of St. Louis between Miami and Potomac streets. Tbe plaintiff is the owner of the property against which an assessment was made for a proportionate part of the cost; tbe defendant Henry Ruck.ert is the contractor who did tbe work. The cause was heard upon an agreed statement of facts.

The circuit court decreed the cancellation of one of tbe taxbills and denied it as to tbe other. Tbe'property of plaintiff affected by the suit is accurately described in a plat made by plaintiff and wife and filed July 28, 1902, after the taking effect of the ordinance for the improvement of Texas avenue, which plat will accompany this opinion.

In his petition plaintiff describes the several pieces, 1, 2 and 3, as indicated on the plat, as three distinct tracts of ground, whereas the city authorities treated it as two, and made out one taxbill to cover 1 and 2 as one tract, and number 3 as a second tract.

It is conceded that the ordinance undertook to define the taxing or area district, and in so doing used the word “east” instead of “west” in- section four of the ordinance, thereby excluding a tier of lots from the taxing district which the charter required to be included. When the president of the board and the officials whose duty it is to cause the apportionment to be made, came to make out the. taxbills, they properly followed the charter instead of the ordinance, and included these lots in the taxing district.

The burden of the plaintiff’s case, however, is that in defining the taxing district the city authorities did not draw the line on the west midway between Texas avenue, the street to be improved, and Ohio avenue, the next parallel street on the west, but included the whole o.f plaintiff’s property in block 1566, a tract running from Texas avenue to Ohio avenue, and fronting on Miami street, and this resulted in a levy of the tax on the west half of plaintiff’s said tract, and it is of this he complains, alleging that he is willing and ready to pay his proportionate share of the cost of said improvement based upon the proportion that the east half of his said tract and all of his tract number 3 as designated on said plat, bears to the whole area of the taxed district, and denies that the said west half and the lots in tract number 2 are liable for said improvement on the area assessment provided for by the amended charter in section 14 of article 6 thereof. On the other hand the defendant city insists that all of the plaintiff’s said tract constitutes but one lot and that in the meaning of the charter it fronts on said Texas avenue and the district should include the whole of it. Defendant Euckert, the contractor, admits the facts alleged in the petition, and asks that if the bills be found void the prayer of the petition be granted, and the city authorities be required to issue to him other tax-bills in accordance with the taxing district and apportionment to be fixed by the court.

With the exception of the alleged mistake in using the word “east” instead of “west,” the proceedings were all regular down to the fixing of the district.

The constitutionality of the charter provisions is assailed and for this reason and because the city of St. Louis is a party defendant, jurisdiction is vested in this court to determine this appeal.

I. It is now the settled law in this court that special assessments for local improvements are referable to the taxing power. [Garrett v. St. Louis, 25 Mo. 505; Heman v. Allen, 156 Mo. 534; Barber Asphalt Co. v. French, 158 Mo. 534; Ibid. v. Ibid., 181 U. S. 324.]

It is within the power of the Legislature to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said districts, either according to valuation or superficial area or frontage. [Webster v. Fargo, 181 U. S. 394; Pryor v. Construction Co., 170 Mo. 439; Asphalt Co. v. French, 158 Mo. 534; Spencer v. Merchant, 125 U. S. 345; Egyptian Levee Co. v. Hardin, 27 Mo. 495.]

It has also been ruled that the provisions of article 10 of the Constitution of Missouri in regard to taxation, a,re applicable only to taxation in the ordinary acceptation of the term, and are inapplicable to these special assessments. [Farrar v. St. Louis, 80 Mo. 379, and cases cited.] And the same rule is held as to sections 3, 4 and 11, as to the uniformity of taxation. [Farrar v. City of St. Louis, supra; City of St. Joseph to use v. Owen, 110 Mo. 445.] The objections to the charter amendments on the ground of unconstitutionality are not, therefore, tenable.

II. As to the contention that the special assessments amount to a taking of plaintiff’s property without due process of law, it may be said that no notice is required by the Constitution to be given property-owners respecting those matters which the Legislature itself determines, or delegates to the municipal authorities. [Spencer v. Merchant, 125 U. S. 345; Williams v. Eggleston, 170 U. S. 304; St. Louis v. Rankin, 96 Mo. 497.] Publication of notice to the property-owners, and opportunity to be heard before the tribunal upon which is devolved the duty of ascertaining facts and acting therein in the special assessment procedure, satisfies the constitutional requirement, and is due process of law as to those matters to be passed upon by such tribunal.

We think section 14 of article 6 of the amended charter of St. Louis complies with this requirement.

When the taxing district has been fixed by valid legislation and when the apportionment of the cost of the improvement upon the property in the district has been so fixed, the owner of the property in the district can not be heard to contend in the court that his property was not in fact benefited, or to the amount assessed in accordance with such apportionment. [Pryor v. Construction Co., 170 Mo. 439.]

The charter of St. Louis adopted by a vote of its people in obedience to an express grant by the Constitution of the State, has, with respect to municipal'matters, including special assessments for local improvements, all the force and effect of an act of the Legislature. [City of St. Louis v. Fischer, 167 Mo. 654; Pryor v. Construction Co., 170 Mo. 439; St. Louis v. Gleason, 15 Mo. App. 25; Ibid v. Ibid., 93 Mo. 33; Kansas City v. Oil Co., 140 Mo. 468.]

III. Having considered the constitutional objections, we are brought to the real question involved in the record, and that is the proper construction of section 14 of article 6 as to the creation of the taxing or area district provided hy the charter. We have fully considered this provision of the charter in the cases of Collier Estate v. Western Paving and Supply Company, and Nellie B. Kauffman et al. v. Western Paving and Supply Company, ante, page 362.

In that case, as in this, the property charged with three-fourths of the cost of the improvement was an unplatted tract which had never been divided into lots, and the contention of the city and contractor was that it should he treated as one lot. But in that case, as in this, the property fronted on a street other than that to he improved, and we ruled that the words ‘ ‘ adj oining ’ ’ and ‘ ‘ fronting ’ ’ in this section of the charter were not synonymous. It was there pointed out that the framers carefully discriminated throughout the charter in the use of the terms “fronting,” “adjoining” and “abutting.”

We conceded that these words might be so used that the context would indicate that they meant the same thing, hut we thought that when the language appeared to be so carefully chosen, and a different word used in reference to each distinct subject or condition, it was our duty to give each its true signification, so that every word of the statute should have some meaning and purpose.

Wherever in the charter an assessment for a street improvement is directed to he levied upon a linear or front-foot basis, the phrases, “fronting upon or adjoining,” “fronting upon or bordering on,” are used. Wherever a sidewalk tax is levied it is upon “the abutting property,” hut when the three-fourths or area assessment is provided, the midway line in the block fixes the area, except “if the property adjoining the street is divided into lots, the district line shall include the entire depth of all lots fronting upon the street to he improved. ’ ’ It seemed clear that if no distinction had been intended in the last-named exception the clause would .have read as it does in the linear rule, “if the property fronting or adjoining the line should be drawn so as to include the entire depth of the lots fronting or adjoining,” but the word “adjoining” is carefully excluded in this exception, and consequently “the property or lot fronting” includes only such property as actually fronts or faces upon the street to.be improved. In the Collier and Kauffman cases we held that as the property did not front on the street to be improved it did not fall within the exception. We also held that as the property had never been divided into lots as specified by the charter, for that reason also it did not fall within the exception to the midway rule for the ascertainment of the area to be taxed. It will be observed that the exception treats of “lots,” and then provides that the word “lot” as used in this connection shall be held to mean the lots as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners have disregarded the lines of lots so platted, and have treated two or more lots or fractions as one lot, then the whole parcel of ground, or lots so treated as one, shall be regarded as a lot for the purpose hereof.” This provision does not meet the conditions presented in this case, because there are no two or more lots treated as one and fronting upon the street to be improved, to-wit, Texas avenue, for the plaintiff’s lot faces and. fronts on Miami street. Nothing herein -said, and nothing said in the Collier and Kauffman cases, is intended to change the construction placed by this court upon a similar provision of section 18 of article 6, of the St. Louis charter prior to these amendments in Wolfort v. City of St. Louis, 115 Mo. 139.

Given a case under these amendments in which property has been divided into lots platted and recorded, or into lots unplatted and two or more thereof are used as one lot by the owner and the same front upon the street to be improved, it will be perfectly allowable to levy the tax on the linear basis upon the whole as one lot, or to assess the area tax thereon as one lot according to this exception, but where property has never been divided into lots at all, either platted and recorded, or divided into lots not platted and recorded, then this exception ex vi termini has no application and the midway rule must govern. Without then repeating all that was said on this point in the Collier-.and Kauffman cases, our conclusion is that the circuit court correctly held that the city authorities improperly drew the district line on the west at the eastern line of Ohio avenue, and thereby included the west half of plaintiff’s property in the taxing district for the purposes of the three-fourths cost of the street improvement of Texas avenue.

We are also of the opinion that the circuit court correctly dismissed the bill as to tract numbered 3, or the four lots fronting on Texas avenue, as the tax levied thereon was the proportionate part that tract would be required to pay under any circumstances, if indeed not. less than it would be required to pay, because in proportion that the area of the district is decreased the individual property therein would bear a proportionately larger part of the whole cost of the improvement.

For reasons assigned in this and in the Collier and Kauffman cases, the judgment of the circuit court is affirmed.

All concur.