Wetterau v. Farmers & Merchants Trust Co.
226 S.W. 941
Mo.
1920
Check Treatment
GRAVES, J.

The petition is in two counts. The first count appears to be under Section 2585, Revised Statutes 1909, in that it prays for a determination of interests in the real estate involved. This count particularizes as to the adverse claim of the defendant, which is not unusual in actions under the statute, and which is permissible under the statute. The adverse claim of the defendant is that it holds certain unpaid, or partially unpaid, tax bills for improvements of a street touching’ the property of plaintiffs. Plaintiffs constitute the Board of Trustees for the German Evangelical Church of St. Paul at St. Louis, Missouri.

There was a proceeding to improve Gravois Avenue from Bates Street to Longborough Avenue. It was improved, and in the course of the proceeding, a benefit district was fixed in accordance with the city charter of the City of St. Louis. Upon the completion of the work special tax bill No. 3655 was issued against the property held in trust by the plaintiffs. In accordance with the charter provisions, one-fourth of the amount was charged upon a front-foot basis, and three-fourths upon ail area basis, and all within the strict letter of the St. Louis charter provisions. The frontage tax, so assessed was $492.56, and the area tax was $4,107.19.

The- tax bill was payable in six installments, two of which were paid prior to this action. The claim by plaintiff is, that as to it, the area tax is invalid, in that it violates the Fourteenth Amendment of the Federal Constitution, and Article II, Section 20, of the State Constitution. It is, in simple terms, an allegation that there was not equal protection to plaintiff, under the laws, both State and Federal. This question, and the question *562 here involved is not unfamiliar to this court. The charge is, in the first count, that such tax hill is an apparent lien upon the property so held by defendants, and we are asked to determine the interests of the respective parties.

The second count is for the recovery of the area tax already paid in the two installments above mentioned. The front-foot portion of the tax. is not questioned, but tender of the remainder thereof is made, and an allegation that the same was refused.

The answer is voluminous, but the questions therein raised are few and simple. These can best be noted in the course of the opinion.

Reply placed in issue the new matter in the answer.

Judgment nisi was for plaintiff, on the first count of the petition, and defendant, the holder of the tax bill, has-appealed.

This shortly outlines the case.

inequalities. I. The whole trouble in this case grows out of the area tax assessed against the property held by the plaintiffs. As indicated briefly in the statement, the City of St. Louis passed an ordinance for the improvement of • G-ravois Avenue, between Bates Street and Loughborough Avenue. This action was under the old charter of St. Louis, and the ordinance fixing the benefit district was within the terms of the charter provision, which provision has been before this court so often that it is a familiar face-. Under it, is drawn the lines of a benefit district; the city authorities, when they came to a block of land, as is involved here, were authorized to included in the benefit district such portion of such tract, as would fall within two lines, named in the charter provisions. That is to say, the charter provisions contemplated that one line would be the street to be improved, and the other line (fixed for determining area) would be a line half way between-the street improved, and the next parallel or converging street. This on the *563 theory, as was time here, that these were parallel, or converging streets on both sides of the street to be improved. If these were not parallel or converging streets upon both sides, then another rule prevailed, not necessary to mention here. The property of plaintiffs had a frontage of 254 feet on Gravois Avenue, and was (for area ■tax) assessed to a depth of 1,248 feet, the half way line between Gravois avenue, and Morgan Ford road, the next parallel street, some half mile from Gravois. By the old charter it was contemplated that- one-fourth of the improvement, cost should be on the front-foot basis, and throe-fourths on the area basis of the district of benefits to be formed. The plaintiffs contend that this fixed a ratio of 1 to 3, but in' this they may be in error. For the vital questions in this case, this matter is only incidental. In the instant case the frontage tax was $492.56, and the area, tax $4,107.19, making the ratio 1 to 9 rather than 1 to 3. The district area, however, might include property not fronting, and therefore those ratios are only incidentally of value here. The real question here is the inequalities, in areas for taxation occasioned by the ordinance, fixing the. benefit district, following in literal terms the provisions of the charter, Article VI, Section 14, of the Revised Code of St. Louis (1921) by Rombauer, p. 365-6.

We have passed the point wherein we can say that gross .inequalities in' area taxes, or assessments for benefits, can be overlooked upon the theory that absolute equality cannot be secured in cases of this kind. [Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U. S. 55.] We cannot expect absolute equality, but we must not tolerate such gross inequalities as will amount'to “distributing a local tax in grossly unequal proportions, not because of special considerations applicable to the parcels taxed, but in blind obedience to a rule that requires the result.” [See Gast case, supra.] It is not necessary to go into the details of the inequalities of the area tax called for by the ordinance before us. It will *564 suffice to say that an examination of the plat showing the areas within the taxing’ district, or benefit district, if yon so'desire to call it, are as grossly disproportionate as in the Gast case, supra. There were parallel or converging streets upon both sides of Gravois Avenue, but upon one' side they were close to Gravois Avenue, whilst on the other side, where plaintiff’s property was located, it was a half mile to the parallel or converging street. This physical fact made wide divergencies in the areas to be taxed, and in the area taxes which followed .

It is true that we will not declare the old St.Loms charter void, as violative of the Fourteenth Amendment of the Federal Constitution, but we will declare an ordinance, passed in pursuance of the charter provisions void if, under the physical facts, the ordinance fixes a benefit district wherein gross inequalities of benefit taxes results. [Ruecking Const. Co. v. Withnell, 269 Mo. 546.] Such a case we have before'us, and we must rule, in obedience to the rule in Gast’s case, that so much of the ordinance before us as fixed the area tax in this benefit -district is void, as violative of the constitutional provision, supra.

This would end the case, but for other matters urged by appellant, which we will note. .

EvSeifce.al II. Complaint is made about the admission of certain evidence tending to show that whilst the property of plaintiffs was now used as a cemetery, it might, 'in the near future, have a different use, an¿ thereby call for streets to be run through the same. This testimony is not material on the question considered in the paragaph preceding. The particular use of the property, at the time, nor the prospective future use, can add but little light upon the real question at issue. Whilst this action is one to declare title, it is really equitable in -character, because ,in declaring title the court is asked to find that this tax bill is a cloud upon plaintiff’s title, and to remove *565 such cloud, and declare absolute title, in trust, to be in plaintiffs, all of which was done. In equity we can here discard the improper evidence, and determine the case upon such evidence as we think was properly admitted. So there is no substance in the objections to admitted evidence.

Esto pel III. It is further contended that the plaintiffs are estopped from denying, the validity of the ordinance. This plea is dependent upon the following facts. January, 14th public hearings were had before the Board of Public Improvements, on the theory that it was proposed to improve Gravois Avenue by the use of wooden blocks for the street pavement. February 13, 1914, the property owners, including one of the plaintiffs, who signed the name of the cemetery association by him as president, petitioned the Board of Public Improvements to have the street improved by the use of vitrified bricks instead of wooden bricks. All this was before the passage of the ordinance for the improvement of Gravois Avenue.

On March 4, 1914, the ordinance' was passed, Nothing in the petition signed by plaintiffs authorized a grossly disproportionate fixing of the area taxes to be paid for the improvement. This petition referred to th,e class of material to be used, and nothing further, Plaintiffs did thereafter pay two installments of the combined' tax. By this, we' mean that the payments .covered both the front-foot tax and the area tax. Upon these facts rest the pleaded estoppel. .

These facts do not show estoppel. Had all of the plaintiffs signed the petition for vitrified brick, rather than wooden blocks, there would have been no estoppel from the act. In such case they had the right to assume that a valid, lather, than an invalid, ordinance would be passed. These acts were not such as would amount to estoppel. [Commerce Trust Co. v. Keck, 223 S. W. l. c. 1057; Perkinson v. Hoolan, 182 Mo. l. c. 194.]

Nor is the act of paying two installments of the illegal area tax one 'which will estop the plaintiff from *566 denying the validity of the remaining area tax. [Perkinson v. Hoolan, supra, and Mayes v. Adair County, 194 S. W. l. c. 59.] The mere act of paying a part of an invalid tax, standing alone, does not constitute estoppel. This defense will not avail defendant in this case.

Gast Case IV. The foregoing covers all substantial issues in this case. Since the case of Gast Realty & Inv. Co. v. Schneider Granite Company, 240 U. S. 55, a case taken up from the judgment of this court, this court has has been more limited in its pronouncements as to special tax cases' from the City of St. Louis. Whilst the Federal court did not hold the St. Louis charter provisions void, it did hold that its strict application in some cases would produce such unjust and unequal.résults, as would bring the particular ordinance under the ban of the Fourteenth Amendment. It ruled the ordinance void in the Gast case, and for the same reason we must *so rule the ordinance void in this case, in so far as the area tax is concerned.

The case was well tried nisi, and the judgment will be affirmed.

All concur.