9 Mo. App. 316 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This is a petition based upon special tax-bills issued 'against a lot of ground belonging to the defendant, for the improvement of two alleys between which the property lies, in block No. 1206 of the city of St. Louis. The petition contains two counts. The first point made by the defendant arises upon the record proper, and involves the question whether the petition states a cause of action.
It is clear the petition would be bad upon demurrer. The ordinance is not properly pleaded. It is not averred that the ordinance was passed by the Municipal Assembly and approved by the mayor of the city of St. Louis. The alie
Here the substance of the ordinance is not given, nor are the material parts pleaded, nor does it appear that the ordinance prescribed the matei’ials or the manner of doing the
The distinction between proceedings to take private property for public use and actions like the present is adverted to- in Eyermann v. Blakesly, ante, p. 231. In cases like the present, by express provision the tax-bill makes out a prima facie case. This does not, indeed,Telieve the plaintiff from stating a cause of action, but it casts upon the defendant burdens of defence which would otherwise be imposed on the plaintiff. There must be a correspondence between the pleadings and proof, and the averments of the petition may be less rigidly construed than' might otherwise be the case, in view of the peculiar provisions of the statute. The averments are here sufficient to show that there was jurisdiction.
It is objected that two bills were issued for work done under the same contract, which bills were against the same lot; that the cost of the work was thus subdivided in the assessment, whereas all that is charged against any one lot must be in one bill. But it appears that the work for which' the two bills were issued was distinct work, the bill first declared on being for work on the western alley, and the second for work on the eastern alley, the property lying between the two. The fact that the ordinance and
The present City Charter provides that “ whenever the estimated special taxes to be assessed against any property shall in the aggregate amount to more than twenty-five per cent of the assessed value of said property, calculating a depth to said property of one hundred and fifty feet, then the Assembly shall provide out of the general revenue for the payment of the amount in excess of the said twenty-five per cent.” It is contended by the appellant that if the proper construction be given to this clause of sect. 18 of Art. YI. of the Charter, the judgment was for a sum in excess of what should have been rendered. But without having the facts before us we cannot undertake to apply the section quoted to the present case. Though we may look to the allegations of the petition to ascertain if a cause of action is stated, and whether the judgment, as such, is justified, yet, in ascertaining the amount, the evidence should be considered, and this is not preserved. Even the facts of detail which are stated in the petition may not have corresponded to the evidence, or the allegations have been proved precisely as laid. It is, however, stated that as it appeared to the president of the board of public improvements that the proportionate share of the cost of paving these alleys chargeable against the defendant’s lot was more than twenty-five per cent of the assessed value of the lot ($1,344, twenty-five per cent being $336), and, having issued the special tax-bill mentioned in the first count for $195.50, and having ascertained that the proportionate share of said cost for said eastern alley to be charged against said lot of defendant was the sum of $168.65, which, with the said other sum of $195.50, exceeded twenty-five per cent of said assessed value of said lot by $46.15, the'said president did assess against said property the proportionate share so chargeable and to be assessed against the same, viz., $140.50, and certified that said sum
These allegations of the petition were denied; and in the absence of any evidence as to the actual facts, or any guide as to the basis for applying the provisions of the Charter in question except the allegations of the petition, we must hold the defendant’s point as to the excess in the amount of the judgment not well taken. The argument of the defendant is based upon the assumption that the true depth of the property thus assessed is only thirty feet, or one-fifth of the standard depth of the provision of the Charter, and he contends that the property can only be assessed in the ratio which its depth bears to the standard depth. But if we are to be guided by the allegations of the petition as made, the depth of the lot is over one hundred and fifty feet; and, as stated, there is no evidence of facts preserved.
The judgment will be affirmed.