Uhrig v. City of St. Louis

1. Revenue — Street opening, tax assessments concerning — Constitutional construction of statute. — It is the settled doctrine in this State that the special provisions of the act of March 24, 1868, amendatory of the St. Louis city charter (Adj. Sess. Acts 1868, p. 239), touching tax assessments for opening of streets, are not repugnant to the constitution. And the decisions in this State arc in perfect harmony with tho whole current of adjudications in other States. 2. Revenue — Street opening — Tax of ten per cent, against the city of St. Louis, constitutional.— Tho particular provisions of the act of March 24, 1868 (Adj. Sess. Acts 1868, p. 239, § 3), limiting the assessments for street opening, against the city of St. Louis, on account of the general benefit to ho derived therefrom, to ten per cent., are lawful. The levy of the assessment upon adjoining property-owners is an exercise of the taxing power; and the Legislature, in the exorcise of this power, was at liberty, in its discretion, to impose tho whole burden of the cost of the proposed improvements upon them. And so it might, in its discretion, limit or extend the district to he taxed, and thus increase or dimmish the sum to he paid by any particular proprietor. The imposition of a portion of the tax, not exceeding a tenth, upon the city at large, is to that extent a.relief to tho adjoining property-owners, and not a hardship furnishing grounds of complaint. 3. Revenue — Ordinance for opening Washington avenue valid, although condition therein might he null. — The ordinance enacted under tho act of March 24, 1868 (Adj. Sess. Acts 1868, p. 238), providing for tho widening of Washington avenue at tho junction of Jefferson avenue, in tho city of St. Louis (ordinance 6,507), is valid, even though tho condition, thereto annexed — which provided that the ordinance should he null in case the Lindoll Eailway Company should not, within a limited time, indemnify the city, etc. —should be held invalid.

Appeal from St. Louis Circuit Court. Uhrig, being the owner of a lot of ground on Washington avenue, brought this suit to enjoin the collection of benefits assessed against his property for the opening of a part of said avenue. The city council passed an ordinance for the opening of part of that avenue, and the land commissioner called a jury to assess the damages suffered by those whose property was proposed to be taken, and also assess benefits to pay those damages — part of which benefits were assessed against the city, and the residue against the adjoining proprietors, of whom plaintiff was one. The hill sets up as grounds of relief: 1st, that the city charter, which provides that not more than ten per cent, shall be assessed against the city, for benefits to the public at large, is unconstitutional and void; 2d, that the ordinance under which the assessment was made is void, because it contained a condition that it should be null unless the Lindell Railway Company, within ninety days, gave bond to pay the damages (benefits) which might be assessed against the city for the opening of the street; 3d, that the verdict was irregular and void, because the jury assessed the value of the land proposed to be taken, and, in addition thereto, assessed' the value of the improvements on the land. The court made the injunction perpetual, and defendants bring the case hero by appeal, after unsuccessful motions for a new trial and in arrest. I. The plaintiff’s remedy is at law, and not in equity. (Ewing v. City of St. Louis, 5 Wall. 413 ; Mayor of Brooklyn v. Meserole, 26 Wend. 132 ; Haywood v. City of Buffalo, 4 Kern. 537; Scott v. Onderdonk, id. 9.) The remedy of plaintiff is not by injunction, but trespass, if the proceedings are void; or by certiorari, if irregular. Injunction docs not lie to restrain sheriff’s sale on the ground of cloud. (27 Mo. 428.) H. The provision of the statute requiring the city to pay not more than ton per cent, of the damages is constitutional. The power to assess benefits against the owners of property is not referable to the right of eminent domain, but to the taxing power; and it is discretionary with the Legislature to impose the whole or any part of the cost of opening or improving streets on the neighboring proprietors, as it chooses; and it may extend or limit the district to be taxed as it may choose, and thus diminish or increase the sum that any particular person is obliged to pay. (Sedgw. on S. & C. Law, 501-2 ; 18 Penn. St. 26 ; Parks v. Boston, 8 Pick. 218-228 ; The People v. Mayor of Brooklyn, 4 Comst. 418; Newby v. Platte County, 25 Mo. 258; White & Garrett v. City, id. 505.) HI. The condition of the ordinance may be void, but the ordinance itself: is not vitiated thereby. (17 Mo. 529 ; City of St. Louis v. Alexander, 23 Mo. 513, 514.) IV. There is no double or improper assessment or finding of the value of the property proposed to be taken. V. The benefits, as they are called, or the amount whiqli owners of adjacent property have to contribute to pay for the property taken, is a tax ; and taxes are or may be always levied without special notice to the payers thereof. I. The proper proceeding in this case is injunction. 1. Courts of equity will grant relief in all cases in which a wrong is threatened by inferior boards or tribunals of special jurisdiction. (Am. Ins. Co. v. Fisk, 1 Paige, 90; Frewin v. Lewis, 4 Myl. & C. 254; Simpson v. Lord Howden, 3 id. 99; Belknap v. Belknap, 2 Johns. Ch. 463 ; Burnett v. Cincinnati, 3 Ohio, 73; Anderson and Wife v. Hamilton County, 12 Ohio St. 635 ; Oakley v. Treasurer of Williamsburg et al., 6 Paige, 262 ; Whitlock v. Duffield, 2 Edw. 366 ; Scofield vl Lansing, 17 Mich. 447.) 2. The writ of certiorari affords no adequate remedy.^ (R. C. 1825, pp. 155, 228, 398; R. C. 1835, pp. 129, 280; R. C. 1845, p. 243; R. C. 1855, p. 443 ; Gen. Stat. 1865, p. 688; Alleyn y. Commissioners of Schodock, 19 Wend. 342; People ex rel. Porter v. Rochester, 21 Barb. 656; Houston v. Orr, 1 Mo. 582; Boren y. Weltz, 4 Mo. 250 ; Hann. & St. Jo. R.R. v. Morton, 27 Mo. 317.) 3. The courts of Missouri have invariably recognized the right to the remedy by injunction in parallel and similar cases. (Lockwood v. The City of St. Louis, 24 Mo. 20 ; Hann. & St. Jo. R.R. v. Morton, 27 Mo. 317; Risley v. The City of St. Louis, 34 Mo. 404; Fowler v. The City of St. Joseph, 37 Mo. 228 ; Farrar v. City of St. Louis, case No. 6,452, St. Louis Circuit Court, October term, 1866; Washington University v. Rowse, 42 Mo. 308.) H. Special tax laws are unconstitutional. (Const. Mo., art. IV, § 1.) 1. It is of the essence of law that it be permanent and uniform in its scope and operation; otherwise it is null. (Domat’s Civil Law, Prel. Book, tit. I, § 1, XXI; 1 Blackst. Com. 44 ; 1 Bouv. Inst. 78 ; Sharpless v. Mayor of Philadelphia, 9 Har. 148; Grimm v. Weissenburg School District, 7 P. F. Smith, 437; Crow v. The State, 4 Mo. 264.) 2. But the act under consideration is neither general nor uniform; it violates the constitution, and is an unauthorized usurpation of power by the General Assembly. (Van Horn’s Lessee v. Dorrance, 2 Dallas,. 304 ; Sutton’s Heirs v. City of Louisville, 5 Dana, 28 ; Rice v. Danv. & Lane Turnpike Co., 7 Dana, 81; City of Lexington y. MeQuilliam’s Heirs, 9 Dana, 513 ; People v. Mayor of Brooklyn, 6 Barb. 209 ; James River & Kanawha Co. v. Turner, 9 Leigh, 31B ; Woodfolk v. Nash. & Chat. R.R. Co., 2 Swan, 422; Const. Mo., art. IV, § 27.) 3. The act is in violation of the constitutional inhibition against taxing property otherwise than according to its value (Const. Mo., art. I, § 30), and also of that provision of the constitution which requires that no property shall 'be exempt from taxation. (Const. Mo., art. XI, § 16.) III. The law discriminates against private property-holders in favor of the city at large, in limiting the amount to be assessed against the city to one-tenth of the whole tax levy. IV. In limiting the amount to be assessed against the city, the Legislature has usurped judicial power. V. The act is against the plain spirit of the declaration of rights, because it provides for a trial without notice, before an officer acting. as a judge between the parties while he is in the employment of .one o'f them; and because it gives to one of the parties the power to annul the judgment, while the others are bound thereby. VI. The ordinance upon which the proceedings are based is void. It was not passed by the authority which alone has power to pass ordinances for the city. (Barton v. Nimrod, 8 N. Y. 433 ; Clark v. City of Rochester, 18 N- Y. 605; Parker v. Commonwealth, 6 Barr. 5074 Rice v. Foster, 4 Har. 479; Maize v. The State, 4 Ind. 342, affirmed in 7 Ind. 635.) VII. The land commissioner had no authority to instruct the jury as he did in this case. 1. His instruction was erroneous in law. 2. He had no power to instruct on questions of fact. (Merritt et al. v. Given et al., 34 Mo. 98 ; Turner v. Lohr, id. 461; Moffat v. Conklin, 35 Mo. 453.) 3. The land commissioner is no judge with common-law powers, and can not instruct at all. (Chamberlain v. Brown, 2 Doug. 120, note.) VIH. The jury gave double damages in assessing first the value of the land, and then the value of the component parts of the land, allowing damages for both. IX. There was no authority, under the act, to assess or render judgment against any of the parties, except the' city, for the cost of the proceeding before the land commissioner.