Gilsonite Construction Co. v. St. Louis, Iron Mountain & Southern Railway Co.

WOODSON, J.- This is a suit to collect fourteen special taxbills, duly issued by the city of St. Louis, in favor of the plaintiff and against the defendant, in payment of materials furnished and labor performed [653] in the reconstruction of a street in said city, known as Broadway, cloné in pursuance to a contract made by and between it and the city, in conformity to the charter and ordinances thereof. The petition contained fourteen counts. The property .of the plaintiff charged with said taxbills consists of its right of way, and is located within the area of the district defined by the ordinance under which .the work was done. The taxbills remaining unpaid, after demand made, plaintiff brought suit on them in the circuit court of the city of St. Louis. The appellant answered, admitting its ownership of the property against which the taxbills were issued, but averring that none of the property described in the several counts of the petition abuts upon the street paved by plaintiff, but on the contrary, each of said described pieces of property is distant from Broadway and constitutes the defendants’ right of way and is occupied by its main tracks solely for the passage of trains thereover, and is not devoted to yard, loading or depot purposes or for any other purpose than the passage of trains there-over, and therefore can derive no possible benefit from the paving of Broadway, and hence cannot be chargeable with the cost of said paving or other improvement of said street; that to hold said property chargeable with the cost of said improvement would violate section 1, article 14, of the Constitution of the United States, in that it would deprive the defendant of its property without due process of law and deny to it the equal protection of the laws, and that it would also violate section 30, article II, of the Constitution of Missouri, in that it would deprive defendant of its property without due process of law; that defendant is a railway corporation and public carrier of passengers and freight for hire and holds said property for a public use and as a public highway. [654] The plaintiff filed its motion to strike out' the affirmative matter of the answer above set out, which motion was sustained. Upon the trial of the -cause plaintiff offered the fourteen special taxbills in evidence, and the signature to the same by the president of the board of public improvements, and notice and demand upon each tax-bill being admitted, the plaintiff rested its case. The defendant then offered to prove the facts stated in that part of its answer theretofore stricken out, which proof, the court, upon the plaintiff’s objection, refused to receive. The defendant offered no further evidence, but requested the courts to give an instruction in the nature of a demurrer to the evidence, denying the plaintiff’s right to a recovery on any of the counts in the petition. That instruction was, by the court, refused and the defendant duly excepted. The findings pf the court were for the plaintiff on all the counts of the petition, and judgment was rendered accordingly. After taking the proper preliminary steps, the defendant appealed the cause to this court. Since it is practically conceded that the contract, under which the improvements were made, and in payment of which the taxbills in suit were duly issued, was authorized by the charter and ordinances of the city of St. Louis, there are but three legal propositions remaining for determination, and they are: First, is the right of way of a railroad company, under the charter of the city of St. Louis, subject to taxation for local improvements, the same as other lands abutting upon the street improved? This precise question was presented to this Court in Banc, at the April term, 1907, in the case of Heman Construction Co. v. Wabash Railroad Company, 206 Mo. 172. After an exhaustive review of the authorities and a most able consideration of the question, it [655] was there held that the right of way of a railroad company was liable for special assessments for local street improvements the same as those made in pursuance to the contract now under consideration. Nothing has since been said, nor have any additional authorities been cited on the presentation of this case, which would justify this court in overruling that case, or authorize the announcement of a rule different from the holding there expressed. Second, Do the Constitution and laws of this State exempt the right of way of a railroad company from the assessment of special benefits? It was also held in the case before mentioned, that the right of way of a railroad company was not a public highway within the meaning of the Constitution of this State, exempting “public highways” from taxation. No valid reason has been suggested to this court which would justify us in departing from that holding. [Also, see City to use v. Eddy, 123 Mo. l. c. 559-563, and cases cited.] The third question is, are the charter provisions and ordinances of the city of St. Louis, imposing such special benefits upon the right of way of the appellant, violative of either the State or Federal Constitution? It is no longer a debatable question in this State, but what finder the laws and ordinances of the city of St. Louis, the rights of way of railroad companies, as previously stated, may be assessed for special benefits received by local improvements, such as those provided for in the contract here involved. [Charter of St. Louis, art. 6, sec. 14; Heman Construction Co. v. Wabash Ry. Co., supra; Corrigan v. Kansas City, 211 Mo. l. c. 626, and 650; City to use v. Eddy, 123 Mo. l. c. 559-563; L. & N. R. R. Co. v. Barber Asphalt Co., 197 U. S. 430-4; Chicago & Alton R. R. Co. v. City of Joliet, 153 Ill. 649; Chicago, Rock Island & Pacific Ry. Co. v. City of Moline, 158 Ill. 64.] And it is equally well settled that such assessments do not violate either [656] the State or Federal Constitution. [Naylor v. Harrisonville, 207 Mo. l. c. 353; Eyerman v. Blaksely, 78 Mo. 145; Barber Asphalt Paving Co. v. French, 158 Mo. 534; Meier v. St. Louis, 180 Mo. 391, 408-9; French v. Barber Asphalt Paving Co., 181 U. S. 324; Tonawanda v. Lyon, 181 U. S. 389; Chadwick v. Kelley, 187 U. S. 540; Shumate v. Heman, 181 U. S. 403; Schaefer v. Werling, 188 U. S. 516; L. & N. Railroad Co. v. Barber Asphalt Paving Co., 197 U. S. 430; Davidson v. New Orleans, 96 U. S. 97; Bell’s Gap Railroad Co. v. Pennsylvania, 134 U. S. 232; Merchant’s & Mfg. Bank v. Pennsylvania, 167 U. S. 461.] We are therefore of the opinion, that the laws and ordinances of the city of St. Louis authorizing the assessment -of benefits for local improvements against the appellant’s right of way do no violence to either the State or Federal Constitution. The judgment should be affirmed, and it. is so ordered. All concur, except Lamm, Graves and Ferriss, JJwho dissent.