Stone v. City of Jefferson , 317 Mo. 1 ( 1927 )

Anna Stone, a property owner on Locust Street, in the City of Jefferson, brought suit in the Circuit Court of Cole County against the said city and its mayor and a construction company to restrain the city from entering into a contract with the construction company for the improvement of Locust Street under the provisions of Section 8325, Revised Statutes 1919. A temporary restraining order was issued by the Circuit Clerk.

The answer admits the formal allegations of the petition; that an ordinance was passed for the improvement of Locust Street, and that subsequent proceedings were had by the city council for the letting of the contract for said improvements and that a bid for the making of same was entered into with the Pope Construction Company, one of the defendants herein, and that all of said proceedings were had under and in conformity with the provisions of Section 8325, Revised Statutes 1919. Further answering it denied the illegality of said section, and that a compliance with its provisions will not cast a cloud upon plaintiff's title or deprive her of her property without due process of law and that said section is not contrary to pre-existing laws relating to street improvements, but that a compliance with its provisions and the ordinances of said city enacted in conformity therewith constitute a lawful exercise of its municipal authority. Thereafter the defendants filed a motion to dissolve the restraining order, which was by the court sustained and the order was dissolved. From this ruling the plaintiff has appealed.

The formal actions of the city council are admitted to have been in conformity with the ordinances of said city and the laws of the State.

Plaintiff's sole contention is that Section 8325, Revised Statutes 1919, is unconstitutional and void, and in violation of Section 30 of Article 2 of the Constitution of the State of Missouri, in that it attempts to authorize the taxing and taking of plaintiff's property without due process of law; and is contrary to existing law in regard to street improvements; and that the acts of the City of Jefferson, its officers and agents in providing for said improvement of Locust Street are illegal, and will cast a cloud upon the title to plaintiff's real estate with a pretended lien thereon for said street improvement, as stated in her petition.

Section 8325 is as follows:

"When the council of any city of the third class shall deem it necessary to pave, macadamize, gutter, curb, grade or otherwise improve the roadway of any street or avenue for a distance not more than twelve hundred feet in length so as to connect at both ends with paving, macadamizing, guttering, curbing, grading or other improvements either on the same street or avenue or on other streets and avenues, or on the same street or avenue and another street or avenue, the council shall declare such work to be necessary to be done and shall cause the same proceedings to be had as are provided in Section 8324, except that no protest may be filed. The resolution passed and published shall state the fact that anyone desiring to do so may appear before the council at a time stated therein and be heard on the question of the necessity of the work sought to be done, and if anyone does so appear he shall be heard, and the council shall by resolution state the result of such hearing to be a re-affimance of the necessity for the doing of such work or the contrary, as the council may then decide. If no one appears, or if the council re-affirms the necessity of the doing of such work and improvement, then it shall proceed with such work and improvement in the manner as in Article IV of this chapter provided for such work and improvement when no sufficient protest against such improvement is filed within the time limited therefor." [Laws 1917, p. 374.]

The contention of the plaintiff is that the Legislature was without authority to delegate to cities of the third class, of which the City of Jefferson is one, the right to order the improvement of streets without giving the property owners affected the right to protest against such improvements as is provided in Section 8324, Revised Statutes 1919.

I. A protest, as the term is used in the statute, is simply a right granted to a party interested to make formal objection to the proposed action of a city council in the improvement of a street. This right is granted in Section 8324, where the paving of an alley or the roadway part of a street is involved, but is denied in Section 8325, where the improvement of the roadway of a street is limited to twelve hundred feet whose terminiProtest. are paved, guttered or graded. It is this denial of which the plaintiff complains. That a protest is granted in the one instance and is denied in the other will not affect the validity of the statute, unless it deprive the abutting property owner of some substantial right. The general rule is that the consent or the right of petition of property owners is not a condition precedent to the opening or improvement of streets unless expressly made so by statute, charter or ordinance. The reason for this rule lies in the fact that local assessments for improvements are not regarded as burdens but as an equivalent or compensation for the enhanced value the property derives from the improvement. [City of St. Louis v. Allen, 53 Mo. l.c. 54; Sheehan v. Good Samaritan Hosp., 50 Mo. l.c. 158 and cases; Lockwood v. St. Louis, 24 Mo. l.c. 22.]

The case of Buchan v. Broadwell, 88 Mo. l.c. 36, furnishes an illustration of the application of this rule. In that case, which involved the validity of certain special tax bills, it was contended inter alia by the non-resident property owners that they had been discriminated against in that the improvement had been ordered by the common council on the petition of resident owners alone of Kansas City. In disposing of this contention NORTON, J., in his usual terse manner, said, in effect, that there was nothing in the constitutional objection made by the non-resident property owners that they were being discriminated against by the charter which provided that the common council (on the petition of residents of Kansas City) was authorized to order the work to be done at the expense of the property owners. "When it is done," said the court, "the same rule of assessment applies to all of the property whether owned by residents or non-residents. The Legislature in the exercise of its paramount control of the State could have authorized the council to have ordered the grading of the street at the expense of the property owners without any petition." [Railroad v. City of St. Louis, 66 Mo. 228; Farrar v. City of St. Louis, 80 Mo. 379.] The Supreme Court of the United States, in Field v. Barber Asphalt Co., 194 U.S. l.c. 622, in affirming the ruling in the Buchan case, said that "it was within the power of the Legislature to authorize a city council to order street improvements to be made without consulting the property owners."

In the Farrar case, supra, the doctrine is reiterated that in special assessments for street improvements the property is taxed with reference to the benefits derived from the improvement. In other words it is a tax on the benefits rather than on the property. By parity of reasoning, if improvements of this character can be made, as we have held, without petition, then the preliminary and less effective resort to protest is not an essential to the legality of the proceeding.

II. The nature of a protest, as used in the statutes under review, is a matter of moment in determining whether there is merit in the plaintiff's contentions. At most a protest is but a statutory privilege and partakes in its nature of none of the essentials of an inherent right. It is perhapsProtest: Property more tedious than difficult to enumerate whatRight. these fundamental rights are. One of them, as the courts have frequently held, is the right to acquire, hold, enjoy and dispose of property, real or personal. [Corfield v. Cornell, 4 Wash. 371; Slaughterhouse cases, 16 Wall. 75; Butchers' Union Co. v. Crescent City Co.,111 U.S. 746; Blake v. McClung, 172 U.S. 239.] No right of this character is violated in depriving the plaintiff of the privilege of protest in this proceeding.

Although not entitled to the exercise of the privilege claimed on the ground that it does not involve an inherent or inalienable right the futility of the plaintiff's contention is further demonstrated by the provisions of Section 8325, which, in notifying the public of the proposed action of theDue Process. council, states that "anyone desiring to do so may appear and that he shall be heard and the council shall state the result of such hearing." In thus providing for a notice and a hearing, both of which the plaintiff has enjoyed, her contention as to a denial of due process of law is without merit. As we said in Gardner v. Robertson, 208 Mo. l.c. 610, 106 S.W. 646: "Notice is the essence of due process of law."

III. It is further contended that Section 8325 does not afford the plaintiff that equal protection of the law guaranteed by the Federal Constitution. A statute does not conflict with this guaranty because it may be special in character or that certain persons may derive special benefits from its operation, if allEqual Protection. persons within its purview are subjected to like conditions. [Bowman v. Virginia State Entomologist, 12 A.L.R. 1121; Virginia Development Co. v. Crozer Iron Co., 90 Va. l.c. 128-129, 44 Am. St. 893; Barbier v. Connolly, 113 U.S. 27, 28 L. Ed. 923, 5 Sup. Ct. Rep. 357; Strawberry Hill Land Corp. v. Starbuck, 97 S.E. 363.] The sole ground upon which this contention is based is that the plaintiff was not afforded the right of protest. We have shown that this is not an inherent right, but a mere privilege, the granting of which is vested in legislative discretion. That discretion not having been exercised the plaintiff has no ground of complaint.

IV. The right to resort to equity for judicial relief is authorized, as the texts tell us when the law, by reason of its universality, does not afford a remedy. The law, however, afforded the plaintiff ample opportunity to interpose any defense to which she may contend she was entitled when suitsInjunction. are brought on the tax bills. The trial court therefore did not err in dissolving the temporary restraining order.

It may be admitted that the imposition of this tax for improvements will place a lien upon the plaintiff's property in so far as all taxes are liens on the property assessed, but it is such a lien as the council is authorized to impose under the power delegated by the Legislature. This manner of taxation has met with the approval of this court too often to require the citation of authorities to attest its correctness.

V. While this court has frequently held that the Legislature may, under the Constitution, empower a municipality to improve its streets at the expense of the adjoining property owners with or without a petition, hearing or protest (PalmyraCompliance v. Morton, 25 Mo. 593, l.c. 597; Egyptian Leveewith Statute. Co. v. Hardin, 27 Mo. 495; St. Joseph v. O'Donoghue, 31 Mo. 345; Railroad v. City of St. Louis, 66 Mo. 228; Farrar v. City of St. Louis, 80 Mo. 379; City of St. Louis v. O'Eters, 36 Mo. 461, l.c. 462), a proceeding, as at bar, where notice and a hearing was given, cannot, in the absence of any irregularity in the required procedure, be subject to valid objection.

The judgment of the circuit court is therefore affirmed. All concur.