Withnell v. Bush Construction Co.

Full title: WITHNELL v . WILLIAM R. BUSH CONSTRUCTION COMPANY

Court: U.S.

Date published: Feb 28, 1910

216 U.S. 603 (1910)

Opinion

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 108.

Argued January 26, 1910. Decided February 28, 1910.

A decree of the Circuit Court sustaining a demurrer to a complaint praying that an assessment for construction of a street be declared void as depriving plaintiff of his property without due process of law, affirmed by a divided court without opinion.

THE brief of the appellee contains the following statement:

This is a bill in equity. The parties to the suit, plaintiff and defendants, are all residents of Missouri and of the same judicial district in that State. The subject-matter of the suit is the contention on the part of the plaintiff that the two special tax bills described in the complaint, issued against his property, by the public authorities of St. Louis, under the charter of that city, as a local assessment for the construction of a street, are void. The tax bills are claimed to be void for one of two reasons, stated in the alternative, namely, first, because the assessment district, as formed, and which includes the plaintiff's property, is not in conformity to the charter requirements, and, second, if it shall be found that the district is correctly defined, then that the charter provision, under which it was formed is void, because in contravention of the Fourteenth Amendment to the Constitution of the United States.

The defendants below demurred to the bill upon the grounds:

1. That the plaintiff has a complete adequate remedy at law.

2. That the allegations of the bill affirmatively show that the assessment district therein referred to was established in accordance with the provisions of the charter of St. Louis.

3. That the matter stated in the bill is not a subject of Federal cognizance.

The demurrer was sustained and the complainant declining to plead further, a decree dismissing the bill was entered, from which decree the complainant appealed.

Mr. Edmund T. Allen and Mr. Clifford B. Allen for the appellant.

Mr. E.C. Kehr for the appellees, submitted.

Per Curiam.

Decree affirmed with costs by a divided court.