I. It will be seen from the statement of facts that this is an action by the respondent, commenced against Camilla S. McManus, on a certain special taxbill issued by the officers of the city of St. Louis under its charter and ordinances for work done by plaintiff in the reconstruction of Laclede avenue from Grand avenue to Kingshighway boulevard, in which it is claimed that such special taxbill is a lien upon certain lands owned by the defendant fronting on Laclede avenue between Grand avenue and Kingshighway and between Vandeventer avenue and Sarah street. This tract of land is described in the taxbill as follows: “A parcel of realty in block No. 3920 of the city of St. Louis, having an aggregate front of 1366.17 feet by a depth of 223.19 feet; bounded north by the boundary line of the improvement district hereinafter mention, east by Vandeventer avenue, south by Laclede avenue, and west by Sarah street.
The defense set up in the answer was that the assessment for the improvement for which the special taxbill was issued was irregular and void and that the taxbill was not made out in accordance with the provisions of the charter, and that therefore, the plaintiff by offering the taxbill in evidence, did not make out a prima-facie case of liability of the defendant. A further defense was urged that the city charter required that the Board of Public Improvements should define by ordinance the district to be assessed, and that an improvement district not defined by ordinance is void.
The special taxbill upon which the suit was brought is as follows:
*604 “Special Taxbill.
“No. 14,502.
“Office of the President of the Board of Public Improvements.
“St. Louis, Nov. 26, 1904.
“Camilla S. McManus, owner to Granite Bituminous Paving Company (contractor), Ur., for work done on Laclede ave. from Gland ave. to Kingshighway boul., chargeable against lot No. - in city block No. 3920, said ground having an aggregate front of 1366.17 feet, by a depth of 223.19 feet; bounded north by the boundary line of district, east by Yandeventer ave., south by Laclede ave., and west by Sarah street, under authority of the charter and of ordinance No. 21,502, and of contract No. 6,901:
“Total cost of reconstruction with bituminous macadam ...................$73,388.34
Amount chargeable against property fronting on improvement — -1-4 of cost..... 18,347.10
Amount chargeable against area of district • — 3-4 of cost ....................... 55,041.24
Total frontage taxed, 17,631.62 feet;
Rate per front foot ........$1.04058
Front feet of lot taxed, 1,366.17...... 1;421.61
Total area in district taxed, 3,488,961 square feet:
Rate per 100 square feet----$1.57758
Area of lot taxed, 304,915 ........... 4,810.28
$ 6,231.89”
(Then follows the,certificate of the president of the Board of Public Improvements of St. Louis.)
The charter of the city of St. Louis is fundamental law and all authority for making public improvements is specifically granted therein. Its provisions, adopted by the people of the city under the authority of the
Section 14 of article 6 of the city charter specifically defines the assessment district for any given street improvement and prescribes how it shall be established. Any act of the municipal assembly attempting by ordinance to change the district so fixed would be a nullity; and any act of the assembly fixing the same district otherwise than prescribed by the charter would be surplusage. So, if the charter has been followed in fixing the assessment district for the improvement in question, neither an ordinance provision nor the absence of one can change the liability of the appellant. [Section 14, article 6, Charter of St. Louis, clause three; Meier v. City of St. Louis, 180 Mo. 391, 79 S. W. 955; State ex rel. v. City of St. Louis, 183 Mo. 230, 81 S. W. 1104.]
II. For the purpose of special assessments under the charter, the existence of a “lot” is not determined wholly from official plats. Within the letter and meaning of the charter this fact may be determined by usage. If the owner uses the property in disregard of lot lines, as shown on the plats thereof, then such lots and parts of lots as he uses together, in disregard of lot lines, constitute one “lot” or “parcel of ground” for the purpose of special assessements.
The last clause of section 14, article 6, of the charter provides: “ ‘Lot-’ Defined: The word dot’ 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 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
The owner of this tract or lot had used the same in disregard of platted lot lines. The property in question, together with the north half of the block had been assessed as acre property — as a fourteen acre tract— since about the year 1886, and the taxes were paid upon it as such by the defendants from that time until the present. They have, therefore, without protest, been paying taxes on a strip of ground known as “West avenue.” The evidence tends to show that this so-called “avenue” has never been a public street and has never been recognized as such by the owner since a trustee’s sale in 1878 nor used by the public for street purposes at any time. A race track which extended over the area involved in this assessment was laid out and used for many years by the owner, the present defendant, without reference to “West avenue,” or to platted lots. The ground was also used for circus purposes year after year without reference to street or lots. And Camilla Mc-Manus used it as a pasture in the same way. All of it was inclosed — so far as inclosed at all, under one fence and as one tract. This is true as to the entire tract, including the north half, which is not involved in this suit. The fact that some quitclaim deeds were made to Camilla McManus — in which the lots as platted were described — in order to clear up the title would not change the situation in any way. There is nothing shown in this record that would preclude the defendant from asserting his title to that strip of ground, originally platted as a street and called “West avenue.” It has never been used as a street and there is no fact in this record that would give the city of St. Louis any
III. The appellant claims that only taxbills made out in accordance with the provisions of the charter create a prima-facie case, and that, therefore, the omission of a designated place of payment in the taxbill would render the bill immature because the appellant had a right to know where to pay the bill.
As the taxbill did not designate a place of payment, the question is presented whether such provision of the charter is mandatory or directory. It is to be observed that there are no negative terms in connection with this charter provision as to place of payment ; in fact, nothing whatever is made to depend upon it. The' provisions to make improvements, levy the assessment, and issue a taxbill for its enforcement, are all quite independent of this clause pertaining to the place of payment, and are in no sense dependent or conditioned upon a compliance therewith.
The distinction between mandatory and directory enactments has often been under consideration by the courts. Into which of these classes any given statute falls is to be determined by its character and purpose. If no substantial rights depend upon it and no injury can result from ignoring it, and the purpose of the Legislature can be accomplished in a manner other than as prescribed -therein and substantially the same results obtained, then the statute will generally be regarded as directory. The provision in section 21, article 6, of the charter as to the place of payment being designated in the taxbill should be construed as directory as it is a provision upon which no substantial authority or right
In the absence of any proof in this case that injury resulted therefrom, the failure to strictly comply with this provision ought not be held as a defense to an action on the taxbill, where demand of its payment was ■made on the defendant before suit, in writing, notifying the defendant where to pay same, as was done in this case. [Lewis’ Sutherland on Statutory Construction (2 Ed.), sections 611 and 613; City of St. Louis v. De Noue, 44 Mo. 136; State ex rel. v. Hannibal & St. J. R. Co., 113 Mo. 297, 21 S. W. 14; 27 Am. and Eng. Ency. Law (2 Ed.), 85.]
IV. The gravamen of defendant’s defense to this cause of action is that the property in controversy was wrongfully assessed because the property was on the 28th day of April, 1877, lawfully dedicated to public use, platted and laid out in streets, alleys and town lots by one Robert Baker.
The plaintiff contends that said dedication was at • all times void, irregular and of no effect for the reason that at the time of the filing of said pretended plat, the said Robert Baker had no power, no capacity and no title sufficient to make a legal dedication of said property to public use. Prior to said pretended dedication, about the year 1874, the said Robert Baker and his wife had conveyed the legal title of said property to one Robert W. Powell, by a deed of trust duly recorded, thus reserving to themselves only the conditional de
A dedication of land to public use as a street can be accomplished in only two ways — either under the statute or according to the common law. A statutory dedication must be by the owner of the fee and must be accepted by the public. A public street and the responsibilities involved cannot be imposed on the public against its will. A common-law dedication, likewise, requires an abandonment on the part of the real owner and acceptance and used by the public. Without these two elements concurring for a required time, there can be no dedication at common law. “As it is essential that to be valid a dedication must create a use unlimited as to the time of its duration, and as it is the very essence of a dedication that the owner of the land has consented to abandon it, it is a necessary conclusion that no one except the owner of an unlimited estate or an estate in fee
V. The paragraph of section 25 of the charter, making taxbills prima-facie evidence when made out in accordance with the charter, make the taxbill primafacie evidence of four facts which are stated in the charter as follows: (1) “That the work and material charged in such bills shall have been furnished;” (2) “Of the execution of the work;” (3) “Of the correctness or rates of price, amount thereof;” and (4) “Of the liability of the person therein named as the owner of the land, charged with such bill, to pay the same.”
A special taxbill issued in pursuance of the charter of St. Louis, in. payment for labor and material fur
In this case, justice will be promoted and no public or private right invaded by applying the above equitable rule that the charter provision as-to the taxbill designating a place of payment is merely directory. To defeat the present taxbill on that ground would subserve no good purpose, but would deprive the plaintiff of its just claim for material furnished and labor faithfully perforraed for which it is entitled to compensation under the contract and of which the defendant’s property has received the benefit in enhancement of its value. The officers of the city, charged with such responsibility, have faithfully and properly discharged their duties in assessing the tax for this improvement, and the same could not have been done otherwise without a violation of the plain terms as well as the spirit of the charter.
Finding that no material error was committed and that the judgment was for the right party, the same is hereby affirmed.