180 Mo. 362 | Mo. | 1904
The two above causes were heard together and submitted on the same briefs. The proceeding in each is a suit in equity to set aside and annul a special taxbill assessed against the respective real estate of the plaintiffs for the improvement of King’s Highway Boulevard, a public thoroughfare in the city of St. Louis.
The bill in each case alleges that the assessment is erroneous and greatly in excess of what it should be; that said taxbill is a lien on all of the plaintiff’s said property and is a cloud upon plaintiff’s title.
“ (1) That the district, on which said assessments are based, was not established in accordance with the provisions of section 14, article 6, of the amended charter of the city of St. Louis.
“(2) That if said district was established in accordance with said section 14 of article 6, then said section 14 of said article 6 is void, and it violates section 1, article 14 of the amendments to the Constitution of the United States in two particulars, to-wit:
“ (a) By denying to respondents the equal protection of - the laws by subjecting all of the respondents’ said property to the lien of said assessment and in not subjecting other land adjoining King’s Highway Boulevard, and similar in location to respondents’ property, in respect of said King’s Highway,'the street to be improved, to the lien of a like assessment for its pro-rata -share of three-fourths of the cost of said improvements.
“(b) By making an illegal, unreasonable, unjust and unconstitutional classification of property by dividing the same into lots, as shown by recorded plats of additions and subdivisions, and into lots of property, which have not been so platted or recorded, whereby respondents ’ entire property has been unjustly charged with a part of three-fourths of the cost of said improvement, and approximately only one-half of other blocks of ground, similar in size and location to respondents’ said property in respect of said King’s Highway, the street to be improved, has been charged with a part of said three-fourths of the cost of said improvement.
“The property of the Collier Estate is situated in City Block No. 3881 of the city of St. Louis. Said block is bounded on the west by King’s Highway Boulevard, the street to be improved, on the east by Euclid avenue, the street next parallel to King’s Highway Boulevard
“No part of the property situated in either the northern or southern half of said block number 3881 has been divided into lots, in additions or subdivisions and a plat thereof filed in the office of the recorder of deeds of the city of St. Louis as provided by article 6, section 1, of the Scheme and Charter of the city of St. Louis, previous to the amendment of October, 1901.
“The property of the respondent Kauffman is situated in the western part of the city of St. Louis and constitutes said block number 3882. Said block is bounded on the west by King’s Highway Boulevard, the street to be improved; on the east by Euclid avenue, the street next parallel to King’s Highway Boulevard on the east; on the south by Lindell Boulevard and on the north by Maryland avenue. This ground has been improved by the erection of a residence and outbuildings upon the western half thereof; the buildings face toward the south upon Lindell Boulevard and the natural front of the property is upon that street, the entrance to and exit from said property being upon Lin-dell Boulevard. The ground has never been subdivided into lots by filing and recording a plat thereof in the office of the recorder of deeds of the city of St. Louis in plat-books provided for that purpose, as provided by
The complaint of the Collier Estate is that the entire south half of City Block 3881 is included in the area assessment for the purpose of paying for three-fourths of the cost of the improvement of King’s Highway, and that only the western half of the southern half of City Block 3881 should have been included within the area assessment for that purpose.
The complaint made by the Kauffmans is that all of City Block 3882 was included in .the area assessment for the purpose of raising three-fourths of the cost of improvement of King’s Highway, 'and that only the western half of that city block should have been included within the present area assessment.
The petitions in both cases refer to the fact that in flying the line of the improvement district in the northern half of said City Block 3881, the eastern line of the . improvement district in said northern half of City Block 3881, is drawn midway between King’s Highway and Euclid avenue, and that the same thing is done in the next block thereof; that is, in City Block 3880.
Complaint is made in both cases that the improvement district line west of King-’s Highway and extending north from Lindell avenue to the north line of Portland Place should have been drawn midway between King’s Highway and Union avenue, instead of between King’s Highway and Lake avenue; this claim is founded upon the allegation that Lake avenue is not a street within the meaning of the charter amendments, but, on the contrary, is a private undedicated way, usable only by the private owners of property in West- . moreland and Portland Places and not open as a public , way to the public and not dedicated to public use.
The improvement of King’s Highway was accomplished under ordinance No. 20643, and the Western Paving & Supply Company, the appellant, was the lowest responsible bidder, and after a contract had been
The work was commenced on July 26, 1902, and completed on October 27, 1902.
The Kauffman suit was filed on February 14,1903,, and the Collier Estate suit on February 13, 1903.
The answers count on the doing of the work, its-completion, the issuance of the taxbills, and pray for affirmative judgments and enforcement of the taxbills. A plea of estoppel by allowing the work to proceed with full notice. Next, that the plaintiffs have treated their property in each case as one lot, and that it is assessable as such by their manner of using them. Denies any violation of the 14th amendment to the Constitution of the United States.
There is practically no dispute as to the controlling evidence. The questions presented require a. solution of the proper method of establishing the benefit district under section 14, article 6, of the amended charter of St. Louis.
Prior to these amendments, assessments for special benefits arising from street improvements were made on the linear or front foot rule. The relevant parts of section 14, article 6, of the amended charter, so far as they affect this case, are as follows :
“Special taxes for the improvement of streets, avenues, and public highways shall be levied and assessed as follows: The total cost of grading, etc., . . . shall be ascertained, and one-fourth thereof shall be levied and assessed upon all the property fronting upon or adjoining the improvement, in the proportion that the frontage of each lot so fronting or adjoining bears to the total aggregate of frontage of all lots or parcels of ground fronting upon or adjoining the improvement, and the remaining three-fourths of the cost so ascertained shall be levied and assessed as a
It will be observed that by this charter amendment the total post of the improvement is first to be ascertained. Two methods then are provided for its payment. One-fourth of the total is to be assessed according to the frontal rule, and the provision as to this is so clear that no doubt can arise as to its meaning. The words, “fronting upon or adjoining the improvement,” cover all contingencies, the improvement of main streets, by which is meant those streets on which a lot or parcel of ground may front and side streets on which a lot or parcel of ground may adjoin.
No attempt is made in the charter to say to what depth property “fronting upon or adjoining the improvement” shall be liable for the one-fourth of its share of the cost but leaves that question to be determined by accident in each case depending upon the size or depth of the given lot “fronting upon or adjoining the improvement. ’ ’ The result of this provision to the property owner is that the amount of his pro-rata assessment in respect of one-fourth of the cost of an improvement is the shine whether his lot be large or small in- depth.
■The contractor for the same amount of work may have more land as a security in the one case than the ether. As to the one-fourth of the cost there is no dispute in these cases, as the plaintiffs offer and tender that amount. But this amendment has wrought an innovation as to three-fourths of the cost by subjecting the area of the improved property to its payment. By reference to the charter provision already quoted it will be observed that this three-fourths of the cost of an improvement ‘ ‘ shall be levied and assessed as a special
‘ ‘ The city officials can readily issue one taxbill, the frontage tax being a lien upon the entire parcel of ground fronting upon or adjoining the street to be improved and the pro-rata proportion of three-quarters of the cost will be a lien upon that portion of the parcel of ground located within the lines of the improvement district, but as the tax is severable we see no objection to issuing separate tax bills, one for the frontage or one-fourth tax, and the other for three-fourths or area tax. ’ ’
The benefit district must be established according to the charter provisions, and the lot or parcel of ground or the part of it to be subjected to the cost must lie in the district thus established, anything in an ordinance establishing a district to the contrary notwithstanding. The property to be subjected to the payment for such improvement may be either a “lot” or “a parcel of ground,” and the district may be so created or established that one of the lines of the district may be so drawn under the charter direction that only “a part of a parcel of ground” shall lie within the benefit district. It is at once apparent that it is an essential prerequisite to first determine the assessment district in order to ascertain what property of a given individual shall be subjected to the payment of three-fourths of the total cost. Turning now to the amended charter we find the mode of procedure for determining the district and area.
“The districts herein referred to shall be established as follows: A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be im
We have here a general rule which ordinarily commends itself to reason and justice. Generally speaking-city blocks are bounded by four streets: two running-north and south, and two running east and west. This charter provision was designed to divide a block in such a way that one-half of it, whether fronting or adjoining an improvement, shall fall into an assessment district when each of these four streets shall be improved. The provision is simple and ordinarily susceptible of little or no difficulty. Given, “a street to be improved,” “the next parallel or converging streets” each side of which are controlling factors in fixing the boundaries of the benefit or assessment districts, the lines are to be drawn midway between ‘ ‘ the street to be improved, ’ ’ and “the next parallel or converging street” on each side of the street to be improved. Applying these directions 'to the district which constitutes the bone of contention in these cases, it is. perfectly apparent that they have not been followed. King’s Highway Boulevard is the street to be improved and for which tax-bills were issued against plaintiff’s property. It is admitted and shown by the plat in evidence that Euclid avenue is the next parallel street on the east to King’s Highway Boulevard, and yet the eastern line of the district was not drawn midway between Euclid avenue and King’s Highway, but said eastern line was drawn coincident with the western line of Euclid avenue and includes all of the property belonging to both of plaintiffs lying between Euclid avenue and King’s Highway, whereas the charter provides that only the western half thereof should contribute to the cost of said improvement and unquestionably the assessment is illegal, unless the property of the plaintiffs was such as to require the district line to be drawn m accordance with certain exceptions to the above general rule. These exceptions are found in the following provision: “If the property ad
These exceptions were made to meet the condition, if the block is divided mto lots: first, where the lots front on the street to be improved; second, where the lots adjoin a street to be improved and front on another street. In the first case, the district line shall not cut a lot into different parcels, but shall include the entire depth of such lot fronting on the street to be improved. In the second case the charter provides for a deviation from the midway line in the event that such midway line would divide any lot lengthivise or approximately lengthwise, and this can only occur in a case where a lot does not front on the street to be improved, but runs parallel with it; otherwise, the midway line could not divide it “lengthwise.” Now it is important to determine in the first case, whether plaintiffs’ properties front on. King’s Highway within the meaning of the charter. There is no doubt that the word ‘ ‘ front ’ ’ may in some circumstances be interpreted to mean and include the word “adjoin.” Thus in Moberly v. Hogan, 131 Mo. 19, “the front foot-rule” was held to apply to* the side of a corner lot fronting or adjoining a side street. In that case “the lot abutting” on the street, was made liable by the statute. But that was a construction of law providing for an assessment upon a linear basis and while that construction of the statute' then under consideration was proper, that decision does not go to the length of holding that the words “fronting-
No court has adhered more firmly to the rule of construction of legislative enactments, that it is “the intention of the law which must govern,” than this court has. It is the first duty of a court to seek for the intent of the law-making body, and then give it that effect. [Railroad v. Gracy, 126 Mo. 472; State ex rel. v. County Court, 128 Mo. 427; Neenan v. Smith, 50 Mo. 525.] We think when the whole charter on this subject is read together it will appear that the framers of this section intended to distinguish between the property “adjoining” and lots “fronting” on the street to be improved. These reasons are forcibly and lucidly stated by the learned counsel for respondent as follows:
‘ ‘ First, from the language of the charter itself. It should be noted that throughout the charter, wherever an assessment for a street improvement is directed to be levied upon a linear basis, the phrases, ‘fronting upon or adjoining’ ‘fronting upon or bordering on,’ are constantly used. See second and fourth paragraphs of article 6, section 1. It should be noticed further that whenever an assessment for a sidewalk improvement is directed, the word‘abutting’ is always used. Now, in the section of the charter here in dispute, the language used is that one-fourth of the cost shall be levied upon all property ‘fronting upon or adjoining’ the improvement. But in the next paragraph the language in regard to the three-fourths assessment is, ‘If the property adjoining the street is divided into lots, etc., the line shall include the entire depth of all lots fronting upon the street.’ This change in the language certainly is not meaningless. The presumption is that the language of the act has been carefully chosen and any change in phraseology is presumed to represent a
“A comparison of the laws as they stood before the amendments of 1901, with the language here used strengthens the view just expressed. Article 6, section 18, of the Scheme and Charter prior to this amendment, provided that the cost of street improvements should be assessed upon the ‘adjoining property.’ If the words, ‘adjoining’ and ‘fronting’ are synonymous, why should any change have been made in the language? In State ex rel. v. Hostetter, 137 Mo. l. c. 649, where a slight change in the phraseology of an act was discussed, the court said: ‘ Can there be any doubt as to the intended effect of such a change of the statute on the particular question before us? It is always allowable in interpreting statutes to consider the prior law as compared with the present, in endeavoring to reach the true intent of the Legislature which, when found,
“Further, this construction is the only one which is in harmony with the principle upon which special assessments are based, viz., the equitable distribution of the cost with respect to the special benefit conferred upon each parcel of ground. Appellant’s position leads to the unreasonable result that the entire area of property like respondents’ must be assessed for each improvement, so that, whereas adjacent blocks would be assessed only twice upon their entire area for the improvement of four surrounding .streets, respondents’ block would be assessed four times. It is a matter of common knowledge that the improvement of the street in front of a parcel of ground confers a greater benefit upon the property than would an improvement upon a side or rear street. The facilities for approaching the property are increased and a corresponding increase in value is presumed to result, and undoubtedly this section was carefully ’ framed to cover this particular point, for the old law made no distinction whatever between the fronts and sides of lots. And the language of the amendment stands in such striking contrast with the old section that the conclusion is inevitable that the framers of the amendment by the change of language and by offering a new scheme of assessment,. intended to avoid the unjust results of the old law and effectuate a more equitable distribution of the cost of street improvement.
'“Second. This construction is supported by another consideration not dependent upon the phraseology of the law. In State ex rel. v. Slover, 126 Mo. l. c. 661, the court said: ‘ It is familiar canon of construction that, in case of any uncertainty, a reasonable and beneficial meaning should be ascribed to a law, where its literal sense'will fairly permit it. And the results and consequences of any proposed interpretation of a
“Appellant’s construction makes no distinction between ‘fronting’ and ‘adjoining,’ with the admitted result that if a parcel of ground is contiguous to the street improved for any distance whatever, be it ever so slight, the entire area of the ground must be included in the district and assessed for its share of three-fourths of the cost. In other words, appellant asserts in effect that if a parcel of ground adjoins a street a distance of five feet and runs back in an irregular shape so as to embrace an area of five acres, the entire five acres must be included in the area district, although the property " may be improved and have its entrance and exit upon another street. Such a result we think was never intended because it would be unreasonable and utterly inconsistent with the principle upon which such assessments are made.
“The natural front of the Kauffman property is upon Lindell Boulevard; the buildings face upon that street, and the principal means of ingress and egress are by that street.
“As the Collier Estate’s property is vacant, the manner in which it was laid out, and the use of the street on which its longest dimension is, must determine whether it ‘ fronts ’ on such street within, the meaning of the charter or not. The length of the Collier Estate’s property on Maryland avenue is 817 feet, as compared with a depth of 225 feet on King’s Highway Boulevard and Euclid avenue, respectively. Maryland avenue is -a street extending westwardly from Sarah street to King’s Highway Boulevard six or more blocks in length. It is used for residences, nearly all of which front on Maryland avenue. The state, school and city taxes on this property are assessed against the Collier
In consideration of the foregoing premises, do the properties against which the taxbills in suit have been issued fall within either of the two exceptions!
■ As already seen, the first exception is, ‘ ‘ If the property adjoining the street to be improved is divided into lots, the district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved.” What is meant by “lots” in this exception must be determined by the charter provision on this subject. Section lé, article 6, defines a lot in these t words: “The word ‘lot’ as used in this section, shall be held to mean the lots as shown by recorded plats of additions or subdivisions, but if there be no such recorded plat, or if the owners of the property have disregarded the lines of lots as platted, and have treated two or more lots or fractions thereof as one lot, then the whole parcel of ground, or lots so treated as one, shall be regarded as a lot for the purposes thereof.” Applying this definition first to the Kauffman property, two views can be taken.
If the defendant’s contention that Mrs. Kauffman has so used the whole of block 3882 as one lot by disregarding the division lines of the lots, conceding it has ever been so divided, platted and recorded, as defendant insists it has, then it fails to fall within the exception which relates only to such lots as to their entire depth as shall front on the street to be improved, because in our opinion the words fronting on such street
Keeping in view the change made in the charter by which a taxing district is created over and beyond the old frontal rule and the positive provision for running the line so as to ascertain the area to be taxed, we think that the decisions construing the old charter as to the use of one or more lots as one, do not control as to the amendment in so far as they are designed for the establishment of taxing districts. Looking further into the charter, we find two other provisions indicating the sense of the framers of the amendments of what would be equitable in fixing the district for area taxation, “if there is no parallel or converging street on either side of the street to be improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved, to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located. ’ ’
Thus it was the opinion of the framers of the charter that only property situated within three hundred feet of the street should be considered benefited by such improvement where there were no parallel or converging streets, and if there was a parallel street on one side and none on the other, the district line on such other side should be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located by the parallel street. In these cases, if appellant is right in its contention, we must utterly ignore the parallel street on the east, Euclid avenue, and include the whole 817 feet of plaintiffs’ property for the improvement of King’s Highway Boul
Recurring the definition of “lot” in the amendment : As applied to plaintiffs ’ property it can have no further effect than to provide that a “whole parcel of ground,” when not divided into lots and a plat thereof recorded, shall be considered as one lot if such parcel had been divided into lots and a plat thereof recorded. Now if we read “whole parcel of ground” instead of “lot” into the first exception, it would be, “if the property adjoining the street to be improved is a whole parcel of ground the district line shall be so drawn as to include the entire depth of the whole parcel of ground fronting on the street to be improved, ’ ’ and still it would not be proper to draw the district line on the east side at Euclid avenue, because the said parcel or lot does not front on King’s Highway.
As to the claim that this tract was divided into lots and the plat recorded, because in the partition suit portions of it were allotted in the survey and these allotments recorded with the commissioner’s deed, we think it is untenable. There is no pretense that such allotment plat was approved by the Board of Public Improvements and recorded, in the plat books in the recorder’s office. The charter provision as to the approval and record of plats was the same under the charter before the amendments as it is now under the amendments, and the only portion of the definition that could apply under the evidence is that which refers to recorded plats, where the owners have disregarded the lines and treated the whole parcel as one lot, but that would not
Moreover, we think that the mere defining of the word “lot” in the charter should not be permitted to override all the provisions for creating a tax district - otherwise so plain and susceptible of practical administration. Surely it was not intended to vary the location of the district line and thus disregard the controlling idea that only one-half of a block lying between parallel streets should be subjected to the improvement of one of the adjoining streets at a time.
To so hold would make a mere definition negative the plain purpose of the other charter provisions on this subject.
We may also properly consider the. effect and consequences of drawing the district line in these cases on the east at the western line of Euclid avenue.
This district line is drawn midway between Euclid avenue and King’s Highway in block 3880, and is drawn midway in block 3881 in the north half of said block to the north of the Collier Estate property, but when it strikes the south half of 3881 or the Collier Estate going south it is deflected to the east of Euclid avenue and thus the district includes the whole of the Collier property, the south half of block 3881, and the whole of block 3882. In our opinion this is a misconstruction of the charter. It was not intended to tax only one-half of the adjoining blocks of 3881 for the improvement of King’s Highway, and the whole of all blocks south of the middle line drawn east and west through block 3881. .The blocks north of that line bear exactly the same relation to the improvement of King’s Highway as those south of it, and a statute ought, if possible, to receive that construction which would cause its burdens to fall equally on all in like situation.
• For these reasons we think the circuit court correctly held that the district line-had been improperly drawn on the east at the western line of Euclid avenue
In State v. Moriarty, 74 Ind. 103, Elliott, J., said: “The term ‘street’ does not mean private ways, nor does it apply to road or ways, owned by private corporations;” and in his work on Roads and Streets (2 Ed.), sec. 19, the same learned judge says: “It is quite safe to affirm that where a statute, or a contract, speaks of a street and does so with reference to a town or city, and there are no limiting or explanatory words, it must be taken to mean a street in the true sense of the term.”
The burden of the argument of defendant is that because these private owners have permitted other citizens to walk and drive over this private way for a number of years, this permissive use constitutes a dedication.
Judge Dillon in his “Municipal Corporations” (4 Ed.), vol. 2, section 636, announces as the settled doctrine that “an intent on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case, no dedication exists.” In White v. Bradley, 66 Maine 254, the court said: “But a use which is simply permissive, however long continued, or the opening of a private way, and subsequent use
But in Bridge Co. v. Bachman, 66 N. Y. 261, we have a ease “on all fours” with the one at bar, and the court said: “The only act of• dedication of any part of the street to the public use . . . was the making and filing of a plat of the ground, with the street laid down thereon, by the owner, and the sale and conveyance of lots by the plat and bounded upon the streets as delineated thereon. But upon the maps and plats filed there was an express qualification and reservation ■ of rights in respect to the streets and avenues as laid down between Main street and the river, including the locus in quo. ... To constitute a public highway by dedication, there must not only be an absolute dedication, a setting apart and surrender to the public use of the land by the proprietors, but there must be an acceptance and a formal opening by the proper authorities, or a user. ; . . The dedication must be made with the intent to dedicate. ... In this case the owners, by their acts and declarations, negatived the intention of dedicating the locus in quo, absolutely and irrevocably, to the public use, and thus destroyed the force and effect usually given to maps and plats of land made under similar circumstances, as evidence of an intent to dedicate or an actual dedication of the land to the public. The maps and plans in connection with the explanatory addenda and reservation, do not show a present and actual dedication of any part of the streets and avenues west of Main street.” [Hemingway v. Chicago, 60 Ill. 324; Speir v. New Utrecht, 121 N. Y. 420.]
Our conclusion is that Lake avenue in "Westmoreland and Portland places is not a public street and that
There is no estoppel in this case. The only provision for remonstrance and objection open to the property-owner is as to “the proposed improvement” and “the kind of material and manner of construction.” The plaintiffs might well have been willing and anxious
The judgment of the circuit court enjoining the collection of the taxbills upon the payment of the one-fourth of the front foot levy by plaintiffs is affirmed.
