44 Mo. 458 | Mo. | 1869
delivered the opinion of the court.
This suit is brought to enjoin the collection of an execution issued by the St. Louis land commissioner against the plaintiff, for the amount of benefits assessed against him, as accruing from the opening of a portion of Washington avenue, in the city of St. Louis. It is alleged that the assessment was irregular and illegal, the illegality consisting in the supposed unconstitutionality of all law's which assume to impose or authorize special tax levies, and in the special provisions of the act of March 24, 1868. (Adj. Sess. Acts 1868, p. 239, § 3, amendatory of the St. Louis city charter.) The main point insisted upon is that these special tax assessments are repugnant to the provisions of the constitution. This proposition has been pressed upon our attention with thoroughness and ability, but the argument comes too late. So far as this State is concerned, the question must be treated as settled in opposition to the view's maintained by the plaintiff’s counsel. And the decisions here are in perfect harmony with the whole current of adjudications in other States. (Garrett v. City of St. Louis, 25 Mo. 505 ; Newby v. Platte County, 25 Mo. 258 ; Lockwood v. City of St. Louis, 24 Mo. 20 ; Risley v. City of St. Louis, 34 Mo. 404 ; People v. Mayor of Brooklyn, 4 Comst. 419, and see appendix on p. 607 and following, where the authorities on this subject are fully collected.)
It is insisted, however, in the ease at bar, that the assessment against the plaintiff was illegal because of the particular provision of the act of March 24, 1868, limiting the assessment against the city, on account of the general benefits, to ten per cent, of the sum total of the damages assessed. This point has been argued upon the theory that the assessment of benefits is not a legislative but a judicial act.
The levying of the assessment was an exercise of the taxing power. That is conceded. The Legislature, therefore, in the exercise of this power, was at liberty, in its discretion, to impose the whole burden of the cost of the proposed improvement upon the neighboring proprietors to be benefited thereby; and so it might, in its discretion, limit or extend the district to be taxed,
But it is insisted that although the law were unobjectionable, still the ordinance enacted under it is void by reason of the condition thereto annexed, which provides in substance that the ordinance shall be null in case the Lindell Railway Company should not, within a limited-time, indemnify the city against its share of the anticipated assessments, or assume the payment thereof.
In 18 Penn. St. 26 (the Hancock street case), the statute provided that in case the benefits did not equal the damages for property taken in the extension of the street, the street should not be opened; and no objection was taken on that ground.
In Parks v. Boston, 8 Pick., it was held that the taking of a bond from an individual to contribute to the expense of the proposed improvement did not vitiate the proceeding. But the condition of the ordinance may be rejected as void, while the residue of the enactment remains in force, unaffected by the condition. (State v. Field, 17 Mo. 529.)
In The City and County of St. Louis v. Alexander, 23 Mo. 484, it was held that a condition at law was valid. The objection to the ordinance is not well taken.
Various objections have been urged against the regularity of the proceedings under the ordinance. These objections are of a technical character, and there is no equitable merit in the complaint founded upon them. The verdict does not Avarrant the construction of a double assessment of damages attempted to be. put upon it. There is nothing to indicate any unfairness in the transaction. The proceedings conformed substantially to the law and the ordinance under which they Avere had. The law and the ordinance being unobjectionable, it is not claimed that the plaintiff’s property was not subject to assessment, or that it was
The judgment must therefore be reversed and the petition dismissed.
