In apportioning the cost of a sewer, the assessing authorities
excluded therefrom a city park from part of which the drainage was
naturally toward, and was to some extent conducted into, the sewer,
but the amount so conducted was not shown to be considerable, nor
did it appear that such drainage could not be disposed of by other
means. The state courts having sustained the exclusion as within
the discretion of the assessing authorities, held
could not be regarded as so arbitrary and unequal in operation and
effect as to render assessments on other property invalid under the
Fourteenth Amendment. P. 252 U. S.
Refusal to transfer a cause from a division of the Supreme Court
of Missouri to the court in banc does not violate any
constitutional right. P. 252 U. S. 18
273 Mo. 184 affirmed.
The case is stated in the opinion.
Page 252 U. S. 14
MR. JUSTICE DAY delivered the opinion of the Court.
Suit was brought in the Circuit Court of the City of St. Louis
by the Construction Company to recover upon a special tax bill
issued by the City of St. Louis for the construction of the sewer
in what is known as Manchester Road Sewer District No. 111, City of
St. Louis. The Construction Company recovered a judgment on the tax
bills against the plaintiffs in error, who were owners of abutting
property. Upon appeal to the Supreme Court of Missouri, the
judgment below was affirmed upon hearing and rehearing. 273 Mo.
The record discloses that the sewer for the construction of
which the assessment was made was constructed in a certain
boulevard known as Kingshighway Boulevard. On the east of this
boulevard, and fronting on the same for a considerable distance, is
a tract belonging to the city, and known as Tower Grove Park; this
property was not assessed for the building of the sewer. This
omission is alleged to be of such an arbitrary and discriminatory
character as to render the ordinance making the assessment void as
a deprivation of federal constitutional rights
Page 252 U. S. 15
secured to the plaintiffs in error by the due process and equal
protection clauses of the Fourteenth Amendment.
The circuit court made findings of fact in which it found that
there was no evidence that the Municipal Assembly of the City of
St. Louis, in passing the ordinances in question, was actuated by
motives of fraud or oppression; that such motives, if any, must be
inferred solely from the failure to incorporate parcels or tracts
of land in the sewer district, the topography of which might render
it necessary or expedient to then, or thereafter, drain the water
or sewage therefrom into the sewer. The court recites the nature of
the title of the tract known as Tower Grove Park.
It appears that the park had been conveyed to the city, the
grantor reserving therefrom a strip 200 feet wide, surrounding the
same. The court found that the western front of the tract thus
conveyed to the city included the western gate or entrance of the
park and the strip of 200 feet in width, surrounding the park
proper, and embraced a total frontage along Kingshighway of about
1,470 feet, and that none of the property included within Tower
Grove Park and the strip of 200 feet in width reserved for a
residence property was included within the taxing district for such
sewer construction. The court also finds that, with the exception
of an area composing some 300 feet each way, located at the
southwestern corner of the park, the western part of the park, for
a distance of some 600 feet east of Kingshighway, is of an
elevation higher than Kingshighway between Arsenal Street and
Magnolia Avenue, and the natural drainage thereof is in the main
westwardly towards Kingshighway, and that, before the building of
the sewer in question, surface water and hydrants drained from said
part of the park through drains and gutters under said street and
sidewalk to a point west of Kingshighway. That whatever drains for
surface and hydrant water existed in said western and
Page 252 U. S. 16
portion of the park led into that section of the sewer in
question situated in Kingshighway adjoining the park, but the court
finds that it is unable to determine from the evidence as to when
such connection with said sewer was accomplished, or by whom. The
court also finds that, at the time the work in question was
performed, it was provided by the revised ordinances of the City of
St. Louis that water draining from roofs of houses should not flow
over sidewalks, but should be conducted through pipes to a sewer,
if available, and if not, then through pipes below the sidewalk,
and into the open gutter of the street. The court does not find
from the evidence that it was not possible or feasible to drain the
surface water falling upon or collected from that portion of Tower
Grove Park, and the reserved strip of 200 feet, which is higher
than and inclined towards Kingshighway, from the surface of said
land in any other manner than through or by the district sewer
constructed in Kingshighway, and that sewage from houses upon said
reserved strip, if any there ever be, cannot be disposed of by
means other than said sewer.
As conclusions of law, the court finds that it was within the
powers of the Municipal Assembly, in the passage of the ordinances
establishing the sewer district wherein the work sued for was
performed, to embrace and designate therein only such real estate
as, in their judgment, should be benefited thereby; that the
discretion vested in the Municipal Legislature was not subject to
review by the court unless the powers of the Legislature were
affirmatively shown to have been exercised fraudulently,
oppressively or arbitrarily. And the court found that the mere
omission of the lands from said district which might at one time be
reasonably included in the sewer district in question, or as to
which it is reasonable to assume that the same would be more
conveniently served by the sewer in question than any other, did
Page 252 U. S. 17
the court in concluding that the Municipal Assembly, in omitting
said lands from the sewer district in question, was actuated by
motives of fraud, or oppression, or that the prima facie
liability of defendants established by the certified special tax
bill is thereby rebutted and overturned.
On the facts and conclusions of law, the judgment was affirmed
by the Supreme Court of Missouri.
The establishment of sewer districts was committed to local
authorities by the charter of the City of St. Louis, which had the
force and effect of a statute of the state. That charter provided
that, within the limits of the district prescribed by ordinance
recommended by the board of public improvements, the Municipal
Assembly might establish sewer districts, and such sewers may be
connected with a sewer of any class or with a natural course of
§ 21, Woerner's Revised Code of St. Louis
1907, p. 410.
The mere fact that the court found that a part of Tower Grove
Park might have been drained into the sewer, it was held by the
Missouri courts, under all the circumstances, did not justify
judicial interference with the exercise of the discretion vested in
the municipal authorities. The court commented on the fact that it
was not shown that any considerable amount of surface water was
conducted away from the park by this sewer. Much less do such
findings afford reason for this Court, in the exercise of its
revisory power under the federal Constitution, to reverse the
action of the state courts which fully considered the facts and
refused to invalidate the assessment.
As we have frequently declared, this Court only interferes with
such assessments on the ground of violation of constitutional
rights secured by the Fourteenth Amendment when the action of the
state authorities is found to be arbitrary or wholly unequal in
operation and effect.
Page 252 U. S. 118
We need but refer to some of the cases in which this principle
has been declared. Embree v. Kansas City Road District,
240 U. S. 242
Withnell v. Ruecking Construction Co., 249 U. S.
; Hancock v. Muskogee, 250 U.
; Branson v. Bush, 251 U.
We find no merit in the contention that a federal constitutional
right was violated because of the refusal to transfer the cause
from the division of the Supreme Court of Missouri which heard it
to the court en banc. See Moore v. Missouri, 159 U.
, 159 U. S.