Jennings Heights Land & Improvement Co. v. City of St. Louis

OPINION. BOND, J. EnabUn °Act "3| (After stating the facts as above). — It is claimed that the sewer district ordinance “is arbitrary, unreasonable, fraudulent, oppressive anf^ in that it did not provide for the construction of a sewer through the territory where plaintiff’s property is situated according to the provisions of an act of the Legislature of 1905 (Laws 1905, p. 62), which provided for the establishment of sanitary districts and for the construction of sewers over areas lying partly within the corporate limits of a city and partly within a county. Appellant also claims that the failure of the city of St. Louis to follow these provisions in reference to the construction .of the seWer in question, imposed the cost of-its construction upon the property of plaintiff and others lying within the city limits, instead, of imposing the costs of construction upon the whole territory within and without the city, as would have been done,-'if the legislative plan had been adopted by the city. An examination of the terms of this act discloses that it merely provides a scheme by which any city and county falling within its purview, may establish a sanitary district wherein sewers may be constructed for draining the same and the cost may be assessed against “all the lánds lying within such sanitary dis [300] triet. ’ ’ But the act neither by its terms, nor legal import, prevents the city from exercising any charter powers possessed by it as to building sewers or establishing sewer districts and assessing the benefits thereof against the property lying within them. The statute only provides for joint action between a city and a contiguous county when the authorities representing the two corporations, see fit to take the necessary steps to avail themselves of the provisions of the law. The statute is not mandatory, but optional, and neither the city nor the county lose any charter or legal powers as to the construction of sewers in their respective limits, by failing or omitting to take advantage of the provisions ' of the general law. The charter of the city of St. Louis is judicially cognizable by us. All its provisions for the building of sewers, the establishment of sewer districts, letting of contracts, the assessment against the property benefited of the cost thereof, and the issuance of tax bills, appear to have been observed in the present case in the ordinance regularly enacted by the Municipal Assembly by virtue of the discretion entrusted to it. The validity of this ordinance is not affected by the fact that the city of St. Louis might have availed itself of the provisions of the act of 1905, if the county in which the outlying lands are situated, had been willing to act in concert with it. We therefore' overrule the assignment of error that the ordinance in question is rendered invalid by the provisions of the act of the Legislature of 1905', or by the failure of the city to avail itself of that method of constructing the sewers through the district where plaintiff is situated. sewer- Tax to Drain outlying Higher Ground. II. It is next urged by the appellant that because this sewer was constructed of greater dimensions than was otherwise necessary, in order to carry off the waters of a s£ream (SOuth fork of Gingrass Creek) [301] which drained an area outside as well as within the city, an additional cost of construction was incurred, which is not chargeable against the property of the plaintiff or other property-owners, and that the ordinance providing for this construction is void, and the tax bill issued thereunder is unjust above the amount tendered by the plaintiff. The ordinance under which the tax bill sought to be cancelled was issued was enacted in conformity with the charter of the city of St. Louis as amended in 1901. [Charter, art. 6, secs. 20', 22.] It'has been uniformly held that the action of the city legislature in pursuance of charter powers, in establishing a district to be benefited by sewers or other public improvements so as to justify a special assessment against the property lying within the district, is conclusive, m the absence of any evidence that it was procured by-fraud or proof that it is manifestly arbitrary or unreasonable, or that the assessment is palpably unjust and oppressive. [Cooley on Tax. (3 Ed.), p. 1256-7-8; McGhee v. Walsh, 249 Mo. 266; Heman v. Schulte, 166 Mo. l. c. 417; Heman v. Allen, 156 Mo. l. c. 543; Prior v. Const. Co., 170 Mo. 439; City of St. Louis v. Fischer, 167 Mo. l. c. 663; State v. Light & Power Co., 246 Mo. 653; State v. Light & Dev. Co., 246 Mo. 618; Bank v. Woosyen, 147 Mo. l. c. 483; Skinker v. Heman, 148 Mo. 349.] The record in this case discloses that the watershed served by this sewer, laid partly outside the city limits, was traversed by the south fork of Gingrass. Creek, which was a small stream practically dry except in wet weather. No sewer could be built of insufficient capacity to carry off the accumulation and drainage of this stream, without exposing the property-owners to the dangers of an overflow of the creek at every rainfall. Necessarily the sewer, in order to accomplish its purpose, must be built big enough to enclose and carry off the polluted waters of Gingrass [302] Creek. The existence of the stream was due to the topography of the watersheds, and that fact made it the duty of the city to provide a sewer adequate to the demands created by natural conditions in the locality to be drained. The lot purchased by the plain tiff was located in such surrounding's as to make it a servient estate and was specially benefited in proportion to the protection which the sewer, thus constructed, gave it against the damage from the flowage from higher ground. This specific benefit was the legal basis of an assessment equivalent to the proportion of the cost of the sewer justly chargeable against plaintiff’s lot, and if the $80.14, instead of $60 (which plaintiff paid into court), was assessed because the sewer was made large enough to carry off the drainage which accumulated in the natural water course, then no constitutional right of plaintiff’s was violated; for the tax represented only the special benefit accruing to it and other property-owners in the district through which this stream ran, and was therefore in strict accordance with the established law governing such assessments. We conclude that this assignment of error is not well taken. corrupt Bargain Land owner. III. It is contended by the appellant that the ordinance in question was enacted by a corrupt agreement entered into by the city of St. Louis and the managers of Calvary cemetery, which was a considerable property-owner in the section wherein a public sewer was laid. A careful examination of the evidence touching, this contention discloses no substantial testimony in its support. There was some correspondence between .the city and the managers of the cemetery association relative to the obtention of a right of way through its grounds, which resulted in contracts between them, granting á right of way and agreeing to pay $10,000 to the city, and requiring the contractor [303] to fill up Gingrass Creek with the earth excavated in digging the sewer. But there is a total failure of proof of any corruption or bribery connected with these transactions or that the city was influenced in the exercise of its legislative discretion by any improper motive or that there was any intention on the part of the managers of the cemetery association to do so. Neither is there any evidence in this record that the contractor who built the sewer which drained plaintiff’s property with its knowledge and without any protest or objection, had any notice of the alleged fraudulent conduct of the city officers and the managers of the cemetery association. That he could not otherwise be prejudiced, even if such misconduct had been shown, is well settled. [Jaicks v. Merrill, 201 Mo. l. c. 110; Paving Co. v. Field, 188 Mo. 182; Bank v. Hutton, 224 Mo. 42; Lumber Co. v. Crommer, 202 Mo. l. c. 521; Strong v. Whybark, 204 Mo. l. c. 348.] The judgment of the trial court is affirmed. All concur. Woodson, J., in result.