Action to enforce the lien of a special tax bill issued against certain. property in city block 2655, of the city of St. Louis, in part payment for work done in street construction within the district in which the property sought to be affected is located. The bill calls for $3783.09. Averring the- issue of the taxbill and notice and demand of payment thereof, that the bill was payable in installments, that default had been made in payment of the first and 'second installments, plaintiff avers that, exercising the option given it by the Charter of the city, it declared the remaining installments due. Averring that it' is the owner of the tax bill, plaintiff demands judgment for the amount of the tax bill with' interest.
The amended answer upon which the case was tried, after a general denial, avers—
Second, that the property sought to be charged is a tract of land lying between Chariton .street on the south and Meramec street on the north, bounded by the property of the Ladies of the Sacred Heart on the east and by Michigan avenue, as proposed, on the west; that Minnesota avenue is an opened street up to the southern boundary of defendants’ property, and is marked on the city maps as extending through and cutting off the western thirty feet of the property, but as yet has not been opened through defendants’ property although it extends both north and south from defendants ’ property; that instead of defining the eastern boundary of the district as heretofore indicated, or at an equal distance on the еast from Compton avenue as the line was drawn on the west of Compton avenue, or drawing the line 300 feet east of Compton avenue, the eastern boundary line was drawn midway between Compton and Nebraska avenues,
Third, that this charge ££is in substantial excess of any possible benefit to defendants’ property, and presents such peculiar and extraordinary hardships as amounts to actual confiscation of private property for public use, and constitutes taking property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States.”
Fourth, that a large amount of real estate belonging to other persons-located with reference to Compton avenue similarly, and of a like proximity and value to defendants’ property, is not assessed or included in any tax bill for any part of the cost of the improvement; that if the district is correctly defined, and in accordance with the provisions of article VI,'section 14, of the Charter of the city of St. Louis, then that section is void and unconstitutional for the reason that it violates section 1, article XIV, of the amendments to the Constitution of the United States, in depriving defendants of their property without due process of law, by denying to defendants the equal protection of the law, by subjecting all defendants’ property to the lien of this assessment, and in not subjeсting to said lien other land adjoining Compton avenue similar in
Fifth, thаt the provisions of the Charter of the city of St. Louis afford no opportunity to the landowner to be heard upon the establishment of the district or upon whom the tax shall be levied, the amount of the benefits, the making of the assessment or the apportionment thereof, and hence these Charter provisions are in violation of the Fourteenth amendment to the Constitution of the United States which forbids the taking of property without due process of law.
Sixth. From the beginning to the end of the proceedings under which this tax was levied, the defendants were not afforded an opportunity to be heard оn the establishment of the district, the benefits derived, upon whom the tax should be levied, the making of the assessment, and its apportionment, and that'the enforcement of the case, will result in the taking of defendants’ property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States.
To this a general denial by way of reply was filed.
The cause was tried by the court without the intervention of a jury and resulted in a judgment in favor of plaintiff sustaining the special tax bill in the amount of $4768.38, and holding it to be a lien against, the property, but not allowing interest as claimed by plaintiff.
Upon the opening of the case before us at bar, we raised the question as to the jurisdiction of our court, on thе ground that it appeared from the statement of counsel that a construction of the Constitution of the United States was necessarily involved in the determination of the case. Counsel for defendants earnestly insisted that that was a wrong view; that what he sought by his answer was the application of thе constitutional provisions so as to relieve his clients from an unjust and excessive and confiscatory burden. 'With grave doubt as to our jurisdiction, we proceeded to hear the case argued on its merits, taking it, at the conclusion of the argument, subject to further examination into the question of jurisdictiоn.. On applica
The learned counsel for defendants have nqw submitted their brief on the question of jurisdiction and with it before us, and aided by it in our investigation, we have given the question careful consideration. We not .only have authority to determine whether a case is within our jurisdiction, as see State ex rel. Excelsior Powder Mfg. Co. v. Ellison et al., Judges, etc. (not yet officially reported, but see
Our conclusion is that on the issues presented by the amended answer in this case, it is impоssible to adjudicate the cause-without construing' the Constitution of the United States, as that Constitution affects and applies to the claim of defendants here. They have both by answer and by their motion for a new trial, specifically and in due time, invoked the protection of named articles of thаt Constitution against the enforcement of this lien; they distinctly claim that the effect of the imposition of this tax upon their property is, in the manner in which it was done, to deprive them of their property without due process of law, and that its effect is to take their private property for a public use without just -compensation, and to deprive them of the equal protection of the law; that they are discriminated against, as respects other citizens. All these are to be settled by construction of the Constitution of the United States, as applied to the facts
One of the cases relied upon by learned counsel for plaintiffs is that of New Orleans v. Benjamin,
“When a suit does not really and substantially involvе a dispute or controversy as to the effect or construction of the Constitution, upon the determination of which the result depends, then it is not a suit arising under the Constitution. (Citing cases.) The judicial power extends to all cases in law and equity arising under the Constitution, but these are cases actually and nоt potentially arising, and jurisdiction cannot be assumed on mere hypothesis. In this class of cases it is necessary to the exercise of original jurisdiction by the circuit court that the cause of action should depend upon the construction and application of the Constitution, and it is readily seen that cases in that predicament must be rare.”
We find nothing in the other cases cited which in any way negatives or qualifies this very clear exposition.
Learned counsel for defendants argue in support of the jurisdiction of our court that it would seem that the question here presented does not involve a construction of the Federal Constitution, “but simply its application and effect.” If we understand the above cited decision correctly, when the question of the construction and application of the Constitution is involved, then it is a case of which original jurisdiction is vested in the courts of the United States. It is true that the provisions of the United States Judiciary Act are somewhat different and are rather broader than the provisions of our own Constitution, but in our own Constitution clear and unmistakable language vests exclusive appellate jurisdiction in our Supreme Court “in
We are unable to understand how we can determine this case and the claim made by these defendants, without determining these questions: Has the action of the muniсipal, officers of the city of St. Louis been of such a character as to impose an undue burden upon the property of these defendants? Has that action in its application had the effect of confiscating, pro tcmto, the property of these defendants? Is a certain provision оf the city Charter unconstitutional? These are, in part, the questions submitted to us. To determine whether they have done so or not, may be, as urged by counsel, a question of fact, but that is only partly so, and goes to the question of the amount of the tax bill. But that does not answer or meet all of them. If the question оf fact is held adversely to defendants, then the question is certainly presented as to, whether the effect of the act has been to take their property without due process of law or to deny to them the equal protection of the laws. To determine these, we must resort both to a сonstruction and the application of the Constitution of the United States — that is, are defendants protected against such acts by the provisions of the Constitution of the United States? The case, to our mind, necessarily involves the construction of the Constitution of the United States and its applicаtion to the facts.
In the investigation of the questions here involved, we have given careful consideration to the very recent-decision of our Supreme Court in Ranney v. City of Cape Girardeau,
There is presented the question as to the constitutionality of the Charter provision. But counsel conсede that this question has been fully settled adversely to their claim. We are therefore not concerned with that question. But we think other questions remaining, as above indicated, are such as deprive us of jurisdiction.
For these reasons we feel compelled to transfer this cause to the Supreme Court of our State, and it is so ordered.