Morse v. Westport

Babclay, J. The leading facts appear in the statement first prepared by our learned brother Maofarlane, which will be printed as an introduction to this opinion. It may, however, be properly added that the proposed street improvements were to cost $5,274, making the special tax amount to no more than $2.10 per front foot, at any part of the improved street. The local municipal body had by ordinance ordered the improvements. The injunction granted in this cause in the' circuit court put a stop to them. It will not be needful on this occasion for the court in banc to go into the question whether or not the judiciary may properly declare void, because unreasonable, [283] any ordinance duly passed by the municipal body, in pursuance of a definite and express legislative grant of power to impose special taxes for street improvements. For the majority of our number hold, that, even conceding the propriety or reasonableness of the exercise of the taxing power by the city (for the improvement of highways therein) open to review by the courts, there would yet be no difficulty in reaching a judgment in the actual case at bar. Surely the particular ordinance now under review is not an unreasonable exhibition of municipal power. The fact that many ordinances were enacted, about the same time, for improvements similar to those in issue in this case is wholly irrelevant. The learned special judge rightly excluded that fact at the trial.' It may well be that the other ordinances were requested by all the property holders affected thereby. Each ordinance may be intrinsically just and necessary. Moreover, the reasonableness of each and every one of said enactments could not, we apprehend, conveniently be gone into, in the present suit. Nor does it matter (so far as concerns the right to make this particular improvement) that a change in the charter was impending, so long as the municipal power to make the improvement still remained, and was regularly exercised. Acts of a city, no doubt, may be shown to be fraudulent by its official enactments, where such proof is competent and relevant to some proper issue to be tried. But the mere passage of' a large number of ordinances for street improvements, in anticipation of a change of law (which would necessitate a change of procedure in regard to those improvements) is not of itself any proof of fraud on the part of these municipal authorities. The improvement proposed for McG-ee street was [284] of the simplest character — a mere surface of ordinary macadam on the roadway, and a curb or margin of stone. It would be hard to suggest a cheaper or more primitive effort to put the street into condition for use as a thoroughfare. The contemplated expense was not to exceed $2.10 per front foot along the whole street affected by the ordinance. At some points the tax was to be less than the figures named. Such an expense can not justly be held unreasonable, unless on the theory that there should be no improvement of that part of the street at all, at the present time. To so hold would be to put a judicial veto upon the municipal powers of Westport in regard to the present improvement of McGee street, and to subject all future ordinances of every city (desiring such simple improvements) to the hazard of a similar judicial veto. In Morse v. Westport (1892) 110 Mo. 502 (19 S. W. Rep. 831) the first division of this court had to consider an ordinance of this very city, providing for an asphaltum pavement on Warwick boulevard — an avenue parallel to (and not many blocks distant from) the McGee street mentioned in this case. In the former suit the ordinance was attacked as unreasonable; but the attack was not successful. The ordinance was approved. Yet in that case'(as appears from the abstracts and statements therein) the asphaltum street pavement was to cost $2.50 per square yard, or more than $4 per lineal foot, to be charged as a special tax against the adjacent property. While in the case at bar the proposed cost at no point of the improvement is to be in excess of $2.10 per front foot. The ordinance here in question should not, we think, be held or considered unreasonable, whatever view may be entertained as to the power of the courts to go into-that subject. We are hence of opinion that the judgment should [285] be reversed and the cause remanded for such further proceedings as may be in conformity with this opinion. Gantt, Sherwood and Burgess, JJ., concur. Brace, O. J., Macearlane and Robinson, JJ., dissent.