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Albers v. St. Louis.

streets and avenues, in which the Legislature has prescribed another and totally inconsistent rule. It thus becomes the duty of the city to observe this distinction in substance as well as in name.

The word "boulevard," in its descriptive sense, which is the sense in which it is used in the statute and with which we have to deal, is well understood, and implies a way designed for pleasure as well as for commercial intercommunication, and having the scenic features, which please rather than profit. Perhaps the definition we find in the New International Dictionary, "A broad avenue in or around a city, especially one decoratively laid out with trees, belts of turf, etc.," is as expressive of its nature as anything that could be said. It is these aesthetic features which constitute the foundation of the special system of taxation applied by charter of the city of St. Louis. Their park-way features are especially available to those whose homes border them, while the scenic drive which they afford is available to the entire city as well as to those who reside a block away. Limitations imposed upon their commercial use make them less available in that respect to those who reside or do business in the neighborhood outside their immediate vicinity than ordinary well improved streets. For these and perhaps other reasons as good the Legislature has seen fit to impose the cost of establishing and opening them upon the adjoining owners and the city at large, and to exempt property which, like that of the plaintiff, receives little benefit from their establishment and maintenance. The Legislature has made the distinction in the exercise of its constitutional powers and we can only inquire of its motives to aid us, when in doubt, to interpret its language. If, under the ordinance No. 24,224, King's Highway Northeast is a "boulevard" within the legislative meaning of the word the city had no power to tax the land of plaintiff to pay the cost of open

Albers v. St. Louis.

ing it, for that power was not only withheld in the charter, but its exercise was expressly forbidden. In considering the question we must remember that we have to do with things rather than with names, for the Legislature is as powerless to impose such an assessment for the opening of a boulevard by naming it a street as it would be to impose a special tax for a cemetery by naming it a park. The charter provision rests upon the thing itself and it cannot be disobeyed by the mere manipulation of the nomenclature in which its commands are expressed.

The petition avers that King's Highway Northeast, while called in the ordinance a street, is in fact a boulevard, and that calling it a street is a mere subterfuge adopted by the Municipal Assembly for the purpose of evading the charter and gives several particulars which, in the opinion of the pleader, supports the general charge. It states, in substance, that Bircher Street lay entirely outside the business portion of the city, and that it needed no widening to accommodate its traffic. To show that this was the opinion of the Municipal Assembly it cites the ordinance changing it to a boulevard, which devoted all the space outside its present width for purposes of ornamentation and pleasure, and made it a part of a general scheme for a park-way through the greater portion of an extensive and populous city. It then charges an interval of two years, during which the fund provided to meet the city's portion of the cost of acquiring the additional lands expressly devoted to a pleasure drive-way and scenic features had become exhausted and the adoption of the present plan for acquiring the same land for the same ultimate purpose, by a fund to be raised by taxation upon the plaintiff's land and that of others similarly situated. After this should be done the power of the Municipal Assembly to return it to the status of a boulevard and to provide for its improvement and use as such

Albers v. St. Louis.

is ample and unquestioned. That the petition charges that the additional land for which the plaintiff is called upon to assist in paying is not needed for any public use for which his land could be lawfully assessed, and that the proceeding, including the repealing ordinance, is a subterfuge to compel him and those whose lands are similarly situated to contribute the greater part of the cost of establishing and opening a boulevard, is plain, and is sufficient to put the city to its defense upon the facts, unless the plaintiff is foreclosed by the judgment of the circuit court in the condemnation suit in which the benefits were assessed against his land.

II. Looking at the section of the charter to which we have already referred, we observe that the proceeding in which this tax was assessed is dual in its character. Its primary and principal object is the condemnation of lands necessary to the opening of the street. For this purpose the court must proceed to obtain jurisdiction of the owners according to its uniform practice as prescribed by statute. Incidentally the benefits to lands not taken are assessed in the same proceeding. No process is issued out of the court for this purpose, but five days' notice is given by the city counselor by publication that benefits to lands situated within certain limits will be assessed by the commissioners on a day named. This is required by ordinance, and not by any statute of the State, nor is it under the control of the court in which the proceeding is pending. That this should constitute the foundation for a valid and final judgment at law fixing a lien upon the land of the owner is inconceivable, while it is easy to understand that it might well constitute the foundation for the valid assessment of a tax subject to the universal rule that its validity must depend upon the legislative power upon which it rests, and if there be a fair and reasonable doubt as to the existence of such power it must be

Albers v. St. Louis.

resolved in favor of the taxpayer and against the municipality claiming it. This principle has lately been stated by this court with citations of its previous decisions which render their repetition unnecessary. [St. Louis v. Realty Co., 259 Mo. 126, 1. c. 136.] In the appropriation to the public use, and the assessment of the compensation and damages therefor, the court proceeds by regular judicial process, along the well defined lines of its constitutional jurisdiction "as to matters of law and equity," while in levying a special tax upon property to be benefited, to pay the amount of compensation and damages ascertained and awarded, it acts as an agency of the State in the exercise of the power of municipal taxation. [St. Louis v. Brinckwirth, 204 Mo. 280, 1. c. 297-8; St. Louis v. Calhoun, 222 Mo. 44, 1. c. 53; Jefferson City v. Wells, 263 Mo. 231.] This case furnishes an excellent illustration of the nature of this power. The court proceeds without process. Instead, the agent of the taxing municipality publishes a general notice of the most formal character, and upon the expiration of the time named in it goes to the court and asks its assistance through its commissioners, in assessing the tax. Under these circumstances it is natural that the Legislature should realize that the participation of a court of general jurisdiction in the proceeding might mislead as to the effect of the judgment, which it evidently did, and expressly declared its effect in the same section which authorized it. It provides: "The sums to be paid by the owners of property especially benefited by the improvement, as ascertained by the commissioners, shall, when the report of the commissioners shall be confirmed by the court, as hereinafter provided, be prima-facie evidence of the liability of the property charged therewith to the extent and amount therein specified, and shall be and remain until paid, a lien from the date of the final judgment of the circuit court on the property so

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Albers v. St. Louis.

charged, and shall be collected as provided by ordinance. [Charter, art. 6, sec. 5.] The liability of the property to the assessment, that is to say, whether it comes within the description of property which may be charged with the cost of the land involved in the proceeding, including damages to land not taken, is the foundation of the right of the commissioners of the court to assess it, and the final judgment of the court is, as it should be, only prima-facie evidence of that liability. Prima-facie evidence means evidence that may be rebutted, and the object of the plaintiff in this suit is to attempt to rebut it by proof that his land does not come within that class.

III. It is suggested that the view we have taken is at variance with the decision of this court in St. Louis v. Christian Brothers College, 257 Mo. 541. The only question before the court and decided in that case was whether or not an ordinance establishing a boulevard could, before any proceeding had been taken under it, be repealed without the written consent of persons owning two-thirds of the abutting land, and the point was decided in the affirmative. We are still satisfied with that result. We are now deciding that in opening a boulevard, by whatever name it may be designated, the assessment of benefits to pay for land taken, and the damages to land not taken, must conform to the requirements of the charter with respect to the lands subject to assessment for that purpose, and that the averments of the petition are sufficient, as against a general demurrer, to present the question in this case.

The judgment of the circuit court is reversed and the cause remanded for further proceedings. Railey, C., concurs.

PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All the judges concur.

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