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Albers v. St. Louis.

was a judicial one. (b) As to those whose land was not taken, but against which assessments were sought to be laid, the proceeding was merely a tax assessment proceeding. This distinction as to the duality of the condemnation provisions of the St. Louis charter runs through many of the recent cases. St. Louis v. Brinckwirth, 204 Mo. 297; St. Louis v. Calhoun, 222 Mo. 53; St. Louis v. Busch, 252 Mo. 220; Jefferson City v. Wells, 263 Mo. 251. (8) Even in those cases where this distinction is not made, the judgment, so-called, as to assessments for benefits is not held to be final as to "the validity and regularity of the proceeding." Eyssell v. St. Louis, 168 Mo. 620; St. Louis v. Ranken, 96 Mo. 497; St. Louis v. Realty Co., 175 Mo. 67. (9) The petition attacks Ordinance 24224 as void, and thereby attacks the jurisdiction of the court in the Baker case, both as to the subjectmatter and as to the person. The city virtually begs the question when it urges that the judgment in the Baker case is not subject to collateral attack.

Charles H. Daues and Truman P. Young for respondent.

(1) The judgment assessing benefits in the case of City of St. Louis v. James E. Baker, in the circuit court, was a final judgment fixing the benefits chargeable against plaintiff's property, and said judgment is not subject to collateral attack in this proceeding. St. Louis v. Realty Co., 259 Mo. 14: Searcy v. Clay County, 176 Mo. 493. (2) The rice given to the owners of property to be assessed for benefits was sufficient to confer jurisdiction in the Baker case, and property owners within the district were charged with notice thereafter of all proceedings in the case. Eyssell v. St. Louis, 168 Mo. 612; Brinckwirth v. St. Louis, 204 Mo. 313; St. Louis v. Realty Co., 259 Mo.

268 Mo.-23

Albers v. St. Louis.

140; St. Louis v. Calhoun, 222 Mo. 53; 2 Lewis on Eminent Domain (3 Ed.), sec. 585. (3) The repeal of ordinance number 22948, establishing a boulevard, was not in violation of section 1 of article 6 of the city charter. St. Louis v. Christian Brothers College, 257 Mo. 541. (4) The question whether a highway shall be opened as a street or as a boulevard, is a question addressed to the legislative discretion of the city government, and is not subject to judicial review. St. Louis v. Brown, 155 Mo. 555.

BROWN, C.-This is a suit for the cancellation of certain special tax bills against the plaintiff's land in the city of St. Louis, the apparent lien of which is alleged to be a cloud upon the title. The tax bills were issued against seven parcels of land described in the petition, to the aggregate amount of $469.40, and are founded upon a special assessment of benefits to said land in a proceeding for the widening of Bircher Street from Euclid Avenue to Florissant Avenue in said city from 60 feet, its original width, to 200 feet, under ordinances which changed its name to King's Highway Northeast. None of the land fronted or bordered upon said street, which was outside the business district, and upon which there was little commercial traffic.

A general demurrer was sustained to the petition, and the plaintiff declined to plead further. Final judgment for defendant was entered, from which this appeal is taken.

The petition states, in addition to these general facts, that the defendant, by authority of a vote of the people of said city, duly authorized and issued its negotiable bonds in the sum of $500,000, to be exclusively devoted to the establishing, opening and construction of King's Highway Boulevard, to meet that portion of the cost and expense which by law the defendant was required to pay, and that the proceeds

Albers v. St. Louis.

of said bonds were paid into the treasury of the city. That thereupon the defendant ordained and passed a certain ordinance numbered 22,948, entitled, "An ordinance to change present Bircher Street from Euclid Avenue to Florissant Avenue into a boulevard, to be known as 'King's Highway Northeast,' and to widen said boulevard, and to regulate the use of said boulevard, and to provide penalties for violating the provisions of this ordinance."

Section one provided: "Bircher Street from Euclid Avenue to Florissant Avenue, in the city of St. Louis, Missouri, is hereby changed into a boulevard to be known as 'King's Highway Northeast.'" Section two provided that said boulevard, "King's Highway Northeast," be widened to include certain parcels of land described, making its width 200 feet. It further provided that the present Bircher Street from Euclid Avenue to Marcus Avenue should be "a service roadway, for general lawful purposes of public travel," and that from Marcus Avenue to Florissant Avenue there should be "service roadways 30 feet wide for general lawful purposes of public travel," and "a pleasure driveway, separated from said service roadways by space for planting trees and shrubbery, and constructing sidewalks in a manner hereafter to be provided for by the Board of Public Improvements," and that on the part of the boulevard restricted to pleasure driving, it should be unlawful to do or cause to be done any other than pleasure driving, or to use the same for certain general traffic set out at length in the ordinance. There were also other traffic restrictions unnecessary to mention.

It also stated that this ordinance was a part of a general scheme for the establishment of a boulevard extending northwardly and southwardly almost the entire length of the city. That although the proceeds of the sale of the $500,000 of bonds were lawfully ap

Albers v. St. Louis.

plicable to the payment of the benefits which the defendant should be required to pay for the widening and opening of said King's Highway as a boulevard and for no other purpose, a large part of it was used by defendant for other purposes and no portion was applied to the opening as a boulevard and widening of Bircher Street, although that was a part of the boulevard for the establishment and opening of which the said bonds were voted, issued and sold.

That the proceeds of the bonds having been exhausted without the expenditure of any part thereof to pay the benefit assessment for which the city might be liable in the opening of that part of the King's Highway Boulevard which included Bircher Street, the defendant city, for the purpose of raising the funds therefor by assessment against a benefit district to be formed for that purpose under the guise of the subterfuge that this part of the King's Highway Boulevard was a common street and not a boulevard within the meaning of its charter, passed on March 16, 1909, Ordinance No. 24,224, entitled, "An ordinance to repeal Ordinance Number Twenty-two Thousand Nine Hundred and Forty-eight, entitled, 'An ordinance to change present Bircher Street from Euclid Avenue to Florissant Avenue into a boulevard, to be known as "Kingshighway Northeast," and to widen said boulevard and to regulate the use of said boulevard, and to provide penalties for violating the provisions of this ordinance,' approved March twenty-seven, nineteen hundred and seven, and to enact in lieu thereof, an ordinance to change the name of Bircher Street from Euclid Avenue to Florissant Avenue to 'Kingshighway Northeast,' and to establish, open and widen said Kingshighway Northeast from Euclid Avenue to Florissant Avenue." The first section repealed the former ordinance and the second is as follows: "Bircher Street from Euclid

Albers v. St. Louis.

Avenue to Florissant avenue is hereby changed to 'Kingshighway Northeast.'"

Section three establishes the boundary of King's Highway Northeast practically the same as the boulevard of the same name established by ordinance No. 22,948, and thereupon a proceeding was begun to condemn the land to be taken and establish the benefit district upon which to assess the cost substantially as provided by the charter and ordinances of the city. The lands of plaintiff were included in this assessment. That the petition was sufficient in form and detail to present the questions which we shall notice in this opinion is not questioned by the parties in brief or argument.


I. The most important of these questions relates to the validity of the ordinance No. 24,224 under which this assessment is made. The city must look to its charter for its power to levy its tax, and must abide by the limitations upon those powers which are therein expressed. It is presented in this case by the fact that the Legislature, in conferring upon it its charter powers, has authorized it to establish and open "boulevards" but has, in the same section (Sec. 1, art. 6), provided that the benefit district against which the cost of such opening may be assessed shall be limited to the property fronting or bordering on such boulevard; while in cases of the opening of streets and alleys which do not come within the description of boulevards, the benefit district may include and the cost be levied upon other property in the neighborhood, as was done in this case. The plaintiff insists that his property is not subject to taxation for the establishment and opening of King's Highway Northeast, because it is within the description of a boulevard, as used in the charter, and is consequently expressly excluded from the rule prescribed in case of those highways described in the same instrument as

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